Commentary on Article 37. Rehabilitation of a Person Involved as a Suspect, Accused, or Defendant under the Criminal Procedure Code of the Republic of Kazakhstan

1. A person acquitted by a court, as well as a suspect, accused person, or defendant in respect of whom a court or a criminal prosecution authority has issued a decision to terminate the criminal case on the grounds provided for in subparagraphs 1), 2), 5), 6), 7), and 8) of part one of Article 35 of this Code, shall be subject to rehabilitation, that is, restoration of their rights, and may not be subjected to any restrictions on the rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan.

2. The court and the criminal prosecution authority shall take all measures provided for by law to rehabilitate the person specified in part one of this Article and compensate for the harm caused to that person as a result of unlawful actions by the body conducting the criminal proceedings.

The fact that the principle of legality is singled out in the system of principles of criminal procedure under the Criminal Procedure Code is by no means accidental and indicates both the existence of violations and the need to prevent them in the practice of bodies conducting criminal proceedings. These circumstances are reflected in a number of Government resolutions: “On Approval of the Report on the Implementation by the Republic of Kazakhstan of the International Covenant on Civil and Political Rights”: Resolution No. 892 of the Government of the Republic of Kazakhstan dated June 12, 2009; “On Approval of the Second Periodic Report on the Implementation by the Republic of Kazakhstan of the International Covenant on Civil and Political Rights”: Resolution No. 1271 of the Government of the Republic of Kazakhstan dated December 3, 2014; “On Approval of the Third Periodic Report on Measures Taken by the Republic of Kazakhstan to Implement the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”: Resolution No. 617 of the Government of the Republic of Kazakhstan dated June 18, 2013, and others.

Unfortunately, due to the incompetence or lack of professionalism of certain inquiry officers, investigators, prosecutors, and judges, cases of unlawful criminal prosecution and the bringing of citizens to criminal liability continue to concern society and the state. All of this undermines the credibility of the criminal justice system, since the rights and legitimate interests of citizens and legal entities are seriously violated, and material damage and moral harm are caused. Therefore, not only those who are actually victims of crimes may suffer, but also those who have been unlawfully drawn into criminal proceedings and, in this regard, prosecuted as suspects, accused persons, or defendants, and subsequently convicted or acquitted. The provisions of Article 37 of the Criminal Procedure Code are specifically devoted to persons who have suffered from unlawful actions and decisions of bodies conducting criminal proceedings and have been recognized as innocent of committing crimes. Within the meaning of these provisions, rehabilitation, that is, recognition of the innocence of a suspect or accused person, or the full restoration of their rights and legitimate interests, is carried out by rendering an acquittal or issuing a decision to terminate the criminal case on the grounds provided for in subparagraphs 1), 2), 5), 7), and 8) of part one of Article 35 of the Criminal Procedure Code (see the commentary on these subparagraphs of the said Article).

A special Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, No. 7, “On the Practice of Applying Legislation on Compensation for Harm Caused by Unlawful Actions of Bodies Conducting Criminal Proceedings,” has been adopted on these issues. It contains a list of possible unlawful actions by bodies conducting criminal proceedings and recognizes the following cases as such:

conducting criminal prosecution in the absence of a complaint by a private prosecutor in cases involving criminal offenses listed in parts 2 and 3 of Article 32 of the Criminal Procedure Code, except for the cases specified in part 4 of this Article; conducting criminal prosecution where the case contains an unrevoked decision of criminal prosecution authorities to terminate the criminal case, as well as a court judgment that has entered into legal force concerning the same charge and the same person, or a court decision establishing the impossibility of criminal prosecution; conducting criminal prosecution after establishing facts confirming: the absence of an event of a criminal offense or the absence of elements of a criminal offense in the person's act; the refusal of the prosecutor and the private prosecutor to pursue the charge; the refusal of the private prosecutor to pursue the charge in a private prosecution case (except for the cases provided for in part 4 of Article 32 of the Criminal Procedure Code); the expiration of the limitation period for bringing a person to criminal liability, provided for in Articles 71 and 88 of the Criminal Code, and the person's consent to termination of the case on this ground; reconciliation between the victim and the accused or suspect in the cases provided for in part 1 of Article 68 of the Criminal Code; the adoption of a new criminal law eliminating criminal liability for the act committed by the person; the issuance of an amnesty act exempting the person from punishment and the person's consent to termination of the case on this ground; or the adoption of an act of pardon in respect of the person.

In addition, unlawful actions by bodies conducting criminal proceedings also include: incorrect application of criminal law provisions when classifying a criminal offense; unlawful application of a preventive measure or other procedural coercive measures provided for by law; detention of a person apprehended on suspicion of committing a criminal offense, or a person in respect of whom detention has been selected as a preventive measure, in conditions dangerous to their life and health; forcible placement of a person who is not in custody in a medical institution for the purpose of conducting a forensic psychiatric or forensic medical examination in the absence of a court decision to that effect; the use of violence, cruel or degrading treatment; conducting procedural actions under conditions that create a danger to the life or health of the persons participating in them; adopting decisions and committing actions that humiliate the honor or diminish the dignity of a person participating in criminal proceedings; using and disseminating information about private life, as well as other personal information that a person considered necessary to keep confidential, for purposes not provided for by the Criminal Procedure Code; unlawful conviction; unlawful application of compulsory medical measures; unlawful application of compulsory educational measures; and other actions.

The unlawfulness of actions by bodies conducting criminal proceedings shall be established by a court judgment or decision, or by a decision issued by an inquiry body, a preliminary investigation body, or a prosecutor (paragraph 2).

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, No. 7, “On the Application by Courts of Legislation on Compensation for Moral Harm,” is also directly relevant to the issues discussed above. Let us cite some of its provisions.

Thus, according to paragraph 7 of the said Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, moral harm shall be compensated in monetary form in accordance with the requirements of Article 952 of the Civil Code. In doing so, the court shall determine the amount of compensation based on the criteria of reasonableness and fairness. The amount of compensation for moral harm should be considered reasonable and fair if, when determining it, the circumstances related to the violation of the citizen's personal non-property rights have been taken into account. The amount of monetary compensation serves as a measure of liability for the unlawful act committed and its consequences for the person causing the harm. The amount of compensation for moral harm awarded by the court of first instance may be reviewed by higher judicial instances if it does not meet the above requirements.

In turn, paragraph 3 of the said Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan defines personal non-property benefits and rights, the violation, deprivation, or impairment of which may result in moral harm to the victim: these are benefits or rights belonging to a citizen from birth or granted by law, which are inseparably connected with that person's identity. Benefits belonging to a person from birth include life, health, honor, dignity, freedom, and personal inviolability, while the rights of a citizen granted by law include the right to inviolability of the home or property; the right to personal and family privacy, the confidentiality of telephone and telegraph communications and correspondence; the right to use one's name; the right to one's image; authorship and other personal non-property rights provided for by legislation on copyright and related rights; freedom of movement and choice of place of residence; the right to receive reliable information, as well as other rights provided for by legislation.

The same paragraph 3 defines moral harm as the moral or physical suffering experienced by a citizen as a result of the unlawful violation, impairment, or deprivation of personal non-property benefits and rights belonging to that citizen. Accordingly, moral suffering (a person's emotional and volitional experiences) includes feelings of humiliation, irritation, depression, anger, shame, despair, a sense of inferiority, a state of discomfort, and so forth. Such feelings may be caused, for example, by an unlawful encroachment on the life and health of the victim or their close relatives or spouse; unlawful deprivation or restriction of liberty or the right to freedom of movement; causing harm to health, including scars and scar marks that disfigure exposed parts of a person's body; disclosure of family, personal, or medical secrets; violation of the confidentiality of correspondence, telephone or telegraph communications; dissemination of untrue information that discredits a citizen's honor and dignity; violation of the right to a name or image; violation of their copyright and related rights, and so forth. In turn, physical suffering includes physical pain experienced by a citizen in connection with the use of violence or the causing of harm to health.

Thus, the above-mentioned Regulatory Resolutions of the Supreme Court set out the most fundamental provisions on the issues under consideration, based on the interpretation of the relevant provisions of the Criminal Procedure Code, the Civil Procedure Code, and civil legislation.

3. Thus, the Civil Code establishes liability for harm caused by unlawful actions of the bodies of inquiry, preliminary investigation, the prosecutor's office, and the court. According to paragraph 1 of Article 923 of the Civil Code, harm caused to a citizen as a result of unlawful conviction, unlawful prosecution, unlawful application of detention, house arrest, or an undertaking not to leave the place of residence as a preventive measure, unlawful imposition of an administrative penalty in the form of administrative arrest or corrective labor, or unlawful placement in a psychiatric or other medical institution shall be compensated in full by the state, irrespective of the fault of officials of the bodies of inquiry, preliminary investigation, the prosecutor's office, and the court, in accordance with the procedure established by legislative acts. This is objectively justified, since the above-mentioned measures of legal coercion fall within the exclusive competence of the bodies conducting criminal proceedings, which are authorized to implement them on behalf of the state.

4. In accordance with the joint Order of the Acting Prosecutor General dated May 30, 2007, No. 21, and the Minister of Finance dated June 6, 2007, No. 198, “On Cooperation between Prosecutorial Authorities and the Ministry of Finance in Matters of Representing the Interests of the State in Courts,” the Department of Legal Services of the Ministry of Finance was instructed to forward to the General Prosecutor's Office materials concerning court decisions rendered in accordance with Article 923 of the Civil Code on compensation for harm in connection with unlawful conviction, prosecution, detention, house arrest, imposition of administrative penalties, as well as other unlawful actions committed by employees of law enforcement and judicial authorities, for the purpose of making decisions on whether the actions of officials through whose fault compensation was recovered from the state contain elements of a crime (paragraph 2). The point is that the state, having compensated for harm caused by officials of the bodies of inquiry, preliminary investigation, the prosecutor's office, and the court (paragraph 1 of Article 923 of the Civil Code), has the right of recourse against such persons in cases where their guilt has been established by a court judgment that has entered into legal force (paragraph 3 of Article 933 of the Civil Code). The above-mentioned Order of the Acting Prosecutor General and the Minister of Finance assigned to the prosecutors of the regions, the cities of Almaty and Astana, and equivalent prosecutors, as well as the Department of Legal Services of the Ministry of Finance, the task of filing recourse claims in court for compensation of harm caused to the state by unlawful actions and decisions of officials of bodies conducting criminal proceedings and compensated by the state (subparagraph 2 of paragraph 3).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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