of November 27, 2015 No. 7
About application by courts of the legislation on compensation of moral harm
For the purpose of the correct and uniform application in court practice of the legislation regulating protection of the personal non-property benefits and rights belonging to citizens and compensations of the moral harm done to them, the plenary session of the Supreme Court of the Republic of Kazakhstan
1. Draw the attention of courts that judicial protection of the personal non-property benefits and rights belonging to physical persons from the birth or by law and also compensation of the moral harm done to them is one of effective sales warranties of constitutional rights and freedoms of man and citizen.
2. According to Articles 9 and 141 of the Civil code of the Republic of Kazakhstan (further - group of companies) and other laws of the republic protection of the personal non-property benefits and rights is made by court in the way:
recognitions of the right;
recoveries of the provision existing before violation of the personal non-property benefits and rights, including recognition invalid or not subject to application of acts of the state bodies which are not corresponding to the legislation;
elimination of effects of violation of the personal non-property benefits and rights;
compensations of moral harm.
The personal non-property benefits and the rights are protected by court as application of the methods stated above in their set, and each of them separately.
The methods of protection of the personal non-property rights provided by group of companies can be applied by court and when protection of such rights is specially not enshrined in legal acts for work, for scrap and family, for use of natural resources, environmental protection, etc.
3. Under the personal non-property benefits and the rights, violation, deprivation or derogation of which can entail causing to the victim of moral harm, it is necessary to understand the benefits belonging to the citizen from the birth or the rights granted by the law which are inseparably linked with his personality. To the benefits belonging to the person from the birth it is necessary to carry life, health, honor, advantage, freedom, integrity of human beings, and to the citizen's rights granted by the law, the right to inviolability of home or property; on the personal and family secrecy, the secrecy of telephone, cable communications and correspondence; on use of name; on the image; authorship and other personal non-property rights, stipulated by the legislation about copyright and the related rights; on freedom of travel and the choice of the residence; on receipt of reliable information, and also other rights, stipulated by the legislation.
It is necessary to understand the moral or physical anguish suffered by the citizen as a result of illegal violation, derogation or deprivation of the personal non-property benefits and the rights belonging to it as moral harm.
It is necessary to understand the feelings of humiliation, irritation, depression, anger, shame, despair, lameness which had by him, discomfort condition etc. as moral sufferings (emotional and strong-willed experiences of the person). These feelings can be caused, for example, by illegal infringement of life and health both the victim, and his close relatives, spouses/spouses; illegal deprivation or restriction of freedom or right of free movement; damnification to health, including the spoiling open parts of body of the person scars and hems; disclosure of family, personal or medical secret; violation of mystery of correspondence, telephone or cable communications; distribution of the untrue data discrediting honor and advantage of the citizen; violation of the right addressed to, to the image; violation of its copyright and related rights etc.
It is necessary to understand the physical pain felt by the citizen in connection with making of violence or damnification to health as physical sufferings.
4. According to the subitem 1) of Article 187 of group of companies limitation period does not extend to requirements about compensation of moral harm, except the cases provided by legal acts. At the same time courts should mean that according to the Law of the Republic of Kazakhstan of April 6, 2016 No. 480-V "About legal acts" the legal acts providing protection of the personal non-property rights of citizens are applied to the legal relationship which arose after their introduction in action if other procedure is not provided by legal acts. Item 8 of the Law of the Republic of Kazakhstan of July 1, 1999 "About enforcement of the Civil code of the Republic of Kazakhstan (Special part)" compensation of the non-property harm done in the cases provided by Articles 922 and 923 group of companies is offered to No. 410-I if it was made till July 1, 1999, but not earlier than July 1, 1996, and remained not compensated.
The requirement about compensation of the moral harm done before enforcement of the legal act providing the right of such harm which was injured on compensation is not subject to satisfaction. Such harm is not subject to compensation and when after introduction of the legal act in action the citizen continues to suffer from moral or physical anguish.
If illegal action (failure to act) which did to the victim moral harm began before introduction of the legal act in action and continued after its enforcement, the moral harm done by illegal action (failure to act) made after introduction of the legal act in action is subject to compensation.
5. Compensation of moral harm is made in case of establishment of fault of the causer of harm. In the cases provided by group of companies the personal non-property benefits and the rights are subject to protection by court irrespective of fault of person which violated these rights.
The claimant shall specify circumstances in the action for declaration and provide the proofs confirming the fact of violation of its personal non-property benefits and the rights, and need of their protection, and also compensation amount which, in his opinion, will provide compensation of the moral harm done to it.
Requirements of citizens about compensation of the moral harm done by the bodies conducting criminal procedure are subject to consideration according to the procedure of civil legal proceedings.
6. According to Item 1 of Article 917 of group of companies moral harm is subject to compensation in full by person which caused his illegal guilty persons (it is intentional or on imprudence) actions (failure to act).
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