Commentary on Article 98-1. Compulsory Payment of the Criminal Code of the Republic of Kazakhstan
For the purpose of protecting the rights and legitimate interests of victims, a compulsory payment in the form of a fixed monetary amount established by Article 98-2 of this Code shall be recovered by the court from the guilty person who has committed a criminal offence, in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund.
The legal, economic, social and organizational foundations aimed at ensuring the payment of compensation to victims in respect of certain elements of criminal offences are regulated by the Law of the Republic of Kazakhstan dated January 10, 2018, “On the Victims' Compensation Fund”.
The concept of a compulsory payment is provided for in subparagraph 26-1) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code).
Pursuant to Article 1 of the Law “On the Victims' Compensation Fund”: “The Victims' Compensation Fund is a cash control account opened with the central authorized body for budget execution for the purpose of crediting monetary receipts and making compensation payments to victims in accordance with the procedure established by the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund;
Compensation is a one-time payment of money, made in accordance with the procedure established by this Law, to a person recognized as a victim in accordance with the Criminal Procedure Code of the Republic of Kazakhstan” (subparagraphs 2) and 3)).
Pursuant to Part 1 of Article 71 of the Criminal Procedure Code, a person in criminal proceedings shall be recognized as a victim where there are grounds to believe that such person has directly suffered moral, physical or property damage as a result of a criminal offence.
The person conducting the pre-trial investigation shall immediately recognize a person as a victim in the cases provided for in Part 1 of Article 71 of the Criminal Procedure Code. A person shall also be recognized as a victim where the damage was caused to that person by an act prohibited by the Criminal Code of the Republic of Kazakhstan and committed by an insane person (Part 2 of Article 71 of the Criminal Procedure Code). A person shall be recognized as a victim in criminal proceedings after the issuance of the relevant resolution. If, during the criminal proceedings, it is established that there are no grounds for the person's continued participation in that capacity, the body conducting the criminal proceedings shall, by its resolution, terminate the person's participation as a victim (Part 3 of Article 71 of the Criminal Procedure Code).
Pursuant to Part 4 of Article 71 of the Criminal Procedure Code, the victim shall be informed of the right to file a claim in criminal proceedings and shall be ensured compensation for property damage caused by the offence, as well as expenses incurred in connection with participation in criminal proceedings, including expenses for a representative, in accordance with the rules established by the Criminal Procedure Code.
According to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 24, 1992, “On the Practice of Applying Legislation Regulating the Rights and Obligations of Persons Affected by Criminal Offences”: “A victim shall be recognized as a person to whom moral, physical or property damage has been directly caused by a socially dangerous act, regardless of whether the person who committed that act has been identified or held liable. In cases involving unfinished criminal activity (preparation for a criminal offence, attempted criminal offence), a person shall be recognized as a victim where moral, physical or property damage has actually been caused.
A person may not be recognized as a victim if moral, physical or property damage occurred as a result of voluntary consent to the infliction of such damage (for example, when seeking an illegal abortion, giving a bribe, etc.).
A legal entity that has suffered property damage as a result of a criminal offence may be recognized as a victim. In such cases, the rights and obligations of the victim shall be exercised by a representative of the legal entity whose authority has been formalized by an appropriate power of attorney.”
The resolution recognizing a person as a victim must specify the type of damage caused to that person. Where several types of damage have been caused, this circumstance must be reflected in the resolution.
Pursuant to Paragraph 5-1 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, where property damage has been caused as a result of the commission of an especially grave crime and the convicted person does not have sufficient property to compensate for it, the court, when deciding on a civil claim, shall, upon application by the victims or their legal successors, issue a resolution in accordance with Part 7 of Article 75 of the Criminal Procedure Code ordering payment to each of them of monetary compensation from the republican budget in full, but not exceeding 150 monthly calculation indices. The said court resolution shall be subject to compulsory enforcement in accordance with the procedure established by the legislation on enforcement proceedings.
State bodies performing criminal prosecution functions, pursuant to Article 4 of the Law on the Victims' Compensation Fund:
explain to the victim the right to receive compensation in accordance with the procedure established by the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund;
request information necessary for making a decision on the award of compensation;
where grounds exist, award compensation in accordance with the procedure established by the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund;
maintain a centralized register of compensation recipients;
submit the centralized register of compensation recipients to the central authorized body for budget execution on a monthly basis, by the fifteenth day of the month following the issuance of the decision to award compensation;
develop and approve a joint regulatory legal act governing the return of compensation paid without justification.
The central authorized body for budget execution:
develops and approves the form of the centralized register of compensation recipients and the procedure for its submission;
prepares payment documents on the basis of the centralized register of compensation recipients;
makes compensation payments from the Victims' Compensation Fund in accordance with the procedure established by the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund.
Paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, “On the Practice of Applying Legislation Regulating the Rights and Obligations of Persons Affected by Criminal Offences”, states: “Compensation for moral damage caused to a victim by a socially dangerous act shall be carried out in criminal proceedings in accordance with the procedure and amounts provided for by the applicable legislation. In particular, courts should bear in mind that, pursuant to the provisions of civil legislation, a person liable for property damage is obliged to compensate the civil claimant or victim in kind (by providing items of the same quality and type, repairing the damaged item, etc.) or to fully compensate for the losses incurred by the victim as a result of the theft or destruction of their property; the person causing the damage is obliged to reimburse expenses incurred in connection with the victim's injury or other damage to health, and, in the event of the loss of a breadwinner, funeral expenses; damage caused by a source of increased danger shall be compensated by the owner of such source, except in cases specified by law; damage caused by a citizen declared legally incapable shall be compensated by their guardian or by the organization obliged to supervise them, unless they prove that the damage did not arise through their fault; damage caused by a minor aged between fourteen and eighteen years, in the absence of property or other sources of income sufficient to compensate for the damage, shall be compensated in full or in the missing part by their legal representatives, unless they prove that the damage did not arise through their fault.”
The sources of formation of the Victims' Compensation Fund are non-tax revenues, which include:
compulsory payments recovered by courts;
monetary penalties imposed by the court for failure to perform procedural duties provided for in Articles 71, 78, 80, 81, 82, 90, 142, 156 and 165 of the Criminal Procedure Code of the Republic of Kazakhstan, and for violating the order in a court hearing, imposed on a victim, witness, specialist, interpreter and other persons, with the exception of an advocate, prosecutor and defendant;
monetary deductions from a convicted person in respect of whom a court conviction has entered into legal force and who has been sentenced to correctional labour (pursuant to Part 2 of Article 42 of the Criminal Code, correctional labour is carried out by withholding and transferring monthly to the Victims' Compensation Fund from ten to fifteen percent of the convicted person's wages (monetary allowance), after deducting funds subject to periodic payment (recovery) towards alimony, compensation for damage caused by injury or other harm to health, as well as the death of a breadwinner);
money recovered through recourse claims (recourse claims are measures taken by prosecution authorities in respect of persons specified in Article 11 of the Law on the Victims' Compensation Fund to ensure the return of money paid to victims as compensation);
other sources not prohibited by the legislation of the Republic of Kazakhstan.
When a court delivers a guilty verdict, a compulsory payment shall be recovered from the guilty persons into the Victims' Compensation Fund pursuant to Articles 98-1 and 98-2 of the Criminal Code.
Part 1 of Article 173 of the Criminal Procedure Code also establishes that victims have the right to receive compensation in the cases and in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Victims' Compensation Fund.
Where a criminal offence is committed by a group of persons, the compulsory payment shall be recovered separately from each guilty person.
Where a guilty person is convicted by a guilty verdict for an aggregate of criminal offences, the compulsory payment corresponding to the category of the most serious criminal offence shall be recovered from that person. Pursuant to Paragraph 36-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, “On the Judicial Verdict”: “Recovery of a compulsory payment is mandatory upon the delivery of every guilty verdict by the court and from every convicted person, including cases where a criminal offence is committed by a group of persons.
Where there is an aggregate of criminal offences, a compulsory payment corresponding to the category of the most serious criminal offence shall be recovered from the convicted person.
When punishment for an aggregate of criminal offences is imposed in accordance with the rules of Part Six of Article 58 of the Criminal Code, the court must decide on the recovery of a single compulsory payment under the two verdicts. If, under the first verdict, the person was convicted of the most serious criminal offence and the corresponding compulsory payment was recovered, the compulsory payment shall not be recovered again under the subsequent verdict. However, if the person is convicted of the most serious criminal offence under the subsequent verdict, the amount of the compulsory payment corresponding to that category of criminal offence shall be recovered, with credit given for the payment recovered under the first verdict.
The compulsory payment shall be recovered by the court without any exceptions. The criminal law does not provide for grounds for exemption from payment of the compulsory payment. For the purpose of recovering the compulsory payment, the presence or absence of a victim in the case, the filing or non-filing of a civil claim, compensation for damage and other circumstances have no legal significance.
The compulsory payment shall apply to criminal offences committed after June 30, 2018.
When determining the amount of the compulsory payment, the monthly calculation index in force at the time the criminal act was committed shall be used.
If the court of first instance did not recover the compulsory payment from the convicted person when delivering the guilty verdict, the appellate court shall have the right to do so upon a motion (protest) of the prosecutor or a complaint by the victim.”
Pursuant to Article 11 of the Law on the Victims' Compensation Fund: “Recourse claims against guilty persons for reimbursement of money paid to victims as compensation shall be brought by prosecution authorities within the framework of representing and defending the interests of the State in court. Money paid to victims from the Victims' Compensation Fund shall also be subject to recovery by the court from:
- the legal representatives of a minor recognized as guilty of committing a crime;
- legal entities bearing material liability, in accordance with the laws of the Republic of Kazakhstan, for damage caused by the criminal offence of an individual;
- persons in respect of whom criminal prosecution has been terminated on the grounds provided for in subparagraphs 3), 4) and 12) of Part One of Article 35 or Part One of Article 36 of the Criminal Procedure Code of the Republic of Kazakhstan;
- the victim, where it is established that the victim submitted inaccurate information to obtain compensation, as well as where criminal offences are reclassified under elements not provided for in Article 6 of this Law and the criminal case is terminated, or a court acquittal based on the absence of an event constituting a criminal offence enters into legal force.”
Part 3 of Article 173 of the Criminal Procedure Code also states that the court shall impose the obligation to reimburse money paid as compensation, in the amount established by the Law of the Republic of Kazakhstan “On the Victims' Compensation Fund”, on:
- the guilty person;
- the legal representatives of a minor recognized as guilty of committing a crime;
- the legal entity bearing material liability, in accordance with the laws of the Republic of Kazakhstan, for damage caused by the criminal offence of an individual.
Pursuant to Part 4 of Article 173 of the Criminal Procedure Code, a resolution terminating a pre-trial investigation on the grounds provided for in subparagraphs 3), 4) and 12) of Part 1 of Article 35 and Part 1 of Article 36 of the Criminal Procedure Code shall constitute grounds for recovering money, through civil proceedings, into the Victims' Compensation Fund from the persons specified in Part 3 of Article 173 of the Criminal Procedure Code, in the amount established by the Law of the Republic of Kazakhstan “On the Victims' Compensation Fund”.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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