Comment to article 755. Understood  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. In the cases provided for by this Code, an adult person who is not interested in the outcome of the case and is able to fully and correctly perceive the actions taking place in his presence is involved as an understood person.

     2. The participation of a convicted person in the proceedings on an administrative offense is reflected in the protocols on personal inspection, vehicle inspection, things, seizure of documents and things belonging to an individual, inspection of territories, premises and property belonging to a legal entity, seizure of documents and property belonging to a legal entity.

     3. The victim must appear at the summons of the official in charge of the administrative offense case, take part in the proceedings on this case and certify with his signature in the relevant protocol the fact of the actions carried out with his participation, their content and results.

     4. The victim has the right to make statements and comments about the action being performed, which must be recorded in the protocol.

     5. If necessary, the victim may be questioned as a witness in accordance with the procedure provided for in Article 754 of this Code.

     Part 1. A natural sane person who has reached the age of 18, is not interested in the outcome of an administrative offense case, and participates in the production of a procedural action to verify its fact, progress, and results, is recognized as a witness in an administrative process.

     The number of witnesses involved in the conduct of the procedural action, as a rule, in accordance with the requirements of specific articles of the Administrative Code, is at least two.

     The participation of witnesses in the production of procedural actions is conditioned by the need to certify the fact of the procedural actions, as well as compliance with the procedure established by law for the production of these actions by authorized officials and the prevention of illegal actions on their part.  

     It should be noted that the norms of the Administrative Code provide for the mandatory presence of witnesses in the implementation of such measures to ensure the proceedings in the case of an administrative offense as:  

     personal inspection;

     inspection of things;

     inspection of vehicles and small vessels;

     inspection of the area, objects, documents;

     examination of a living person;

     inspection of objects in the presence of a living person;  

     seizure of documents and things that are an instrument of committing an offense or the subject of an offense, found at the place of commission of the offense;

     inspection of territories, premises, goods, and other property belonging to a legal entity;

     seizure of documents and property belonging to a legal entity;

     seizure of goods, vehicles and other property belonging to a legal entity.

     The participation of witnesses in the performance of these actions is reflected in the relevant protocols. Despite the fact that the commented article does not explicitly provide for this, however, the participation of witnesses in these and other procedural actions may be accompanied by audio or video recordings.  

     In the CPC, such a record replaces the participation of witnesses in certain cases (articles 220, 257, 258, etc.). This has not yet been included in the Administrative Code, but it is a promising area for its improvement.  

     Citizens are involved by an authorized official to participate in the proceedings as witnesses only with their own consent. Such participation is a right of citizens, not an obligation, and accordingly, the law does not provide for liability for a citizen's refusal to be understood. However, if a person agrees and participates, his subsequent participation in the case is an obligation.  

     All the rights and obligations provided for in the Administrative Code arise for a citizen only after he acquires the legal status of this participant in administrative proceedings. A person acquires the legal status of an understood person after giving his consent to participate in the conduct of a procedural action as such, and announcing this to him by an authorized official performing the procedural action.  

     An important condition for involving citizens in proceedings on administrative offenses as witnesses is their lack of interest in the outcome of the case. In this regard, the following persons cannot be involved as witnesses:

     - participants in the proceedings on an administrative offense, their relatives, close relatives;

     - employees of judicial, executive and prosecutor's offices.  

     Part 2. The participation of witnesses in the proceedings on an administrative offense is reflected in the protocols of the procedural actions in which they participated (in the implementation of measures to ensure the proceedings on administrative offenses).  

     The protocol specifies the personal data of the victim (surname, first name, patronymic, date of birth, residential address, place of work), and also makes a note that his procedural rights and obligations have been clarified to him. At the end of the action performed, the victim certifies with his signature in the protocol that this action was performed in his presence.  

     A person involved in administrative proceedings as an understood person acquires the procedural rights and obligations of an understood person, and also bears responsibility established by law for non-fulfillment of his procedural duties, as indicated above. For refusal or evasion from appearing before the body (official) considering the case of an administrative offense, the defendant is administratively liable under art. 654 of the Administrative Code. A summons is not applied to the defendant until it is necessary to interrogate him in the status of a witness in the case (as a witness in the case, he may be brought) in accordance with part 5 of the commented article.  

     Part 3. When participating in proceedings on administrative offenses, the understood must:

     1) provide, at the request of an official of the body conducting proceedings on an administrative offense case, information on relations with persons participating in administrative proceedings.;

     2) to certify with his signature in the protocol of the performed action the fact of the production of this action, its course and results;

     3) to observe the procedure in the course of the procedural action;

     4) to obey the lawful orders of an authorized official conducting administrative proceedings;

     5) be present during the production of the procedural action from the moment of its beginning to the moment of its end.

     Part 4. In a broad sense, a person has the following procedural rights, which do not contradict the internal logic of the Administrative Code and are scattered according to its articles:

     1) to know which action he is involved in, who is in charge of conducting it, and who is involved in it;

     2) to make statements and remarks about the action in which he participates, which are to be recorded in the protocol of this action.;

     3) get acquainted with the protocol of the action in which he participated, and request corrections and additions to it.;

     4) to sign the protocol of the performed action only in the part that reflects the circumstances perceived by him personally.;

     5) receive compensation for the expenses incurred by him related to participation in the proceedings on an administrative offense.

     Part 5. The victim may be questioned as a witness about the circumstances related to the procedural action in which he participated.

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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