Comment to article 494. Illegal seizure of passports, identity cards or their acceptance as collateral The Code of the Republic of Kazakhstan on Administrative Offences
1. Illegal seizure of passports and identity cards from citizens or their acceptance as collateral -
entails a warning or a fine in the amount of five monthly calculation indices.
2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of ten monthly calculation indices.
The general object of the offense is the established management procedure. The direct object of the offense is the social and legal relations that arise when observing the rules for using a passport, identity card (documentation and registration of the population).
The objective side of the first part of the commented article is expressed by two qualifying features:
1) illegal seizure of passports or identity cards from citizens;
2) accepting their passports or identity cards as collateral from citizens.
In accordance with the administrative and legal status, a passport and an identity card of a citizen of the Republic of Kazakhstan are identity documents confirming the citizenship of the Republic of Kazakhstan. Therefore, no one has the right to seize a passport or identity card, unless this is expressly provided for by law, or to seize documents as collateral (securing obligations).
Based on Article 8 of the Law of the Republic of Kazakhstan dated January 29, 2013 No. 73 "On Identity documents", a passport of a citizen of the Republic of Kazakhstan is issued to citizens of the Republic of Kazakhstan (for a period of ten years) at their request, regardless of age, and certifies the identity of a citizen of the Republic of Kazakhstan on the territory of the Republic of Kazakhstan and abroad.
Unlike a passport, all citizens of the Republic of Kazakhstan who have reached the age of sixteen and permanently reside in Kazakhstan must have an identity card.
According to Article 23 of the Law of the Republic of Kazakhstan dated January 29, 2013 No. 73 "On identity documents", in cases and in accordance with the procedure established by the laws of the Republic of Kazakhstan, identity documents are seized by officials of the bodies of preliminary investigation, inquiry, as well as officials during administrative proceedings and registration of loss of citizenship.
The seizure of identity documents by other authorities and officials is prohibited. Identity documents are seized from persons sentenced to imprisonment and stored in institutions executing sentences. Upon release from serving the sentence, the identity documents are returned to the owners.
Unfortunately, the Law of the Republic of Kazakhstan dated January 29, 2013 "On Identity Documents" does not provide clear legal grounds for the lawful seizure of identity documents.
Paragraph 12 of Article 795 of the Administrative Code provides that the seizure of documents held by an individual is carried out only in exceptional cases in order to achieve the goals provided for in the first part of Article 785 of the Administrative Code. The application of this measure for purposes not provided for by the Administrative Code entails liability established by the laws of the Republic of Kazakhstan. That is, the seizure of documents is a measure to ensure the proceedings in the case of an administrative offense, but the purpose of this measure does not cover all legal grounds, since the lawful seizure of identity documents can be carried out not only (in exceptional cases) for administrative offenses.
The Decree of the Government of the Republic of Kazakhstan dated August 26, 2013 No. 852 defines cases of lawful seizure of identity documents in an administrative manner.
Identity documents are invalid, which means they are subject to seizure in the following cases::
1) the absence of data required by law for this type of identity document in them;
2) their expiration date;
3) the impossibility of identifying the data in the identity document, namely:
- last name, first name, patronymic (if any);
- dates and places of birth;
- citizenship;
- photos;
- the name of the authority that issued the document;
- date of issue, document number, validity period;
-individual identification number (except for refugee ID);
4) inability to identify the degree of protection of the document;
5) if the document is considered lost;
6) inconsistencies with the legal status of the owner;
7) Gender reassignment.
If there is a valid visa of a foreign state in the passport, which must be submitted to the authorized body, the passport will not be withdrawn at the request of the citizen. In this case, the invalid passport must be redeemed (by cutting one of the sides of the passport with a hole punch) and returned to the owner until the need has passed.
The concept, grounds, and subject of the pledge are defined by paragraph 3 of the Civil Code of the Republic of Kazakhstan dated December 27, 1994. The subject of the pledge may be any property, including things and property rights, with the exception of things withdrawn from circulation. The seizure of identity documents on bail is not provided for by civil law.
The second part of the commented article establishes responsibility for the actions provided for in the first part of this article, committed repeatedly within a year after the imposition of the penalty.
The subjects of the offense can only be individuals who have illegally seized their passports or identity cards or accepted them as collateral.
If the illegal seizure of a passport or identity card was carried out by officials of the bodies of preliminary investigation, inquiry, as well as officials during administrative proceedings and registration of loss of citizenship, then administrative responsibility will be borne taking into account the specifics provided for in Article 32 of the Administrative Code.
The subjective side of the offense is characterized by direct intent.
They have the right to initiate proceedings under the commented article and impose an administrative penalty.:
1) chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, city of republican significance, capital, their deputies (paragraph 1, part 2, art. 685 of the Administrative Code);
2) heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies (paragraph 2, part 2, art. 685 of the Administrative Code);
2) employees of the internal affairs bodies (police) with special ranks (clause 4, Part 2, Article 685 of the Administrative Code).
The sanction of part 1 of the commented article provides for two types of administrative penalties:
1)Warning;
2) a fine in the amount of five monthly calculation indices.
But arbitrary choice of punishment is unacceptable. When making a decision to impose an administrative penalty under the commented article, the above-mentioned officials must take into account the requirements of part 2 of Article 43 of the Administrative Code, which states that "In the absence of circumstances provided for in Article 57 and the note to Article 366 of this Code, the court (judge), the body (official) imposing the administrative penalty is obliged to apply a warning provided for in the relevant article of the Special Part of this Code."
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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