Comment to article 756. Specialist The Code of the Republic of Kazakhstan on Administrative Offences
1. Any adult person who is not interested in the outcome of the case and has the special knowledge and skills necessary to assist in the collection, investigation and evaluation of evidence, as well as in the use of technical means, may be appointed as a specialist to participate in the proceedings on an administrative offense.
2. A specialist has the right: to know the purpose of his call; to refuse to participate in the proceedings if he does not have the appropriate special knowledge and skills; to get acquainted with the case materials related to the procedural action performed with his participation; with the permission of the judge, the body (official) in charge of the administrative offense case, ask questions to the participants of the procedural action; as part of the procedural action, conduct research, with the exception of comparative, case materials, reflecting its progress and results in a protocol or an official document that is part of the protocol of the procedural action; get acquainted with the protocol of the procedural action in which he participated, and make statements and observations to be recorded in the protocol regarding the completeness and correctness of recording the progress and results actions carried out with his participation.
3. A specialist must: appear at the summons of a judge, body (official) conducting proceedings on an administrative offense; participate in the procedural action using special knowledge, skills and scientific and technical means; provide explanations about the actions he commits; certify with his signature the fact of the commission of these actions, their content and results.
Part 1. A specialist is an adult who is not interested in the outcome of an administrative offense case, has special knowledge in science, technology, art, craft and other fields of activity, and has been summoned by a judge, body (official) conducting proceedings on an administrative offense case to participate and assist in the proceedings.
The key difference between a specialist and an expert is that his "special knowledge" (knowledge and skills) is not legally required to be scientific. This, in fact, determines the evidentiary value of their conclusions and some other procedural features of participation in the case.
Most often, medical professionals, biologists, accountants and financiers, chemists, technologists and other specialists are involved in cases of administrative offenses. A teacher or psychologist involved in providing explanations by minors to victims or a person in respect of whom administrative proceedings are underway are also considered specialists. An appropriate resolution is issued on the involvement of a person as a specialist.
Part 2. When involving a specialist in the consideration of an administrative offense case, an authorized official must inform the specialist about the purpose of his call, raise specific questions that require answers, or indicate the technical means to be used in the process of reviewing the case.
A specialist has the right to refuse to participate in proceedings on an administrative offense if he considers that he does not have sufficient relevant special knowledge and skills. The fact of such a refusal is not recorded in writing anywhere and does not entail any legal consequences for the refused specialist.
However, in the case of consent and participation in the procedural actions, this is transformed into an obligation (as with the witnesses).
The specialist has the following procedural rights:
1) to get acquainted with the materials of the case of an administrative offense related to the procedural action performed with his participation;
2) with the permission of the judge or the body (official) in charge of the administrative offense case, ask questions to the participants in the procedural action.;
3) as part of the procedural action, conduct research, with the exception of comparative research, of the case materials with a reflection of its progress and results in a protocol or an official document (certificate, act, conclusion) that is part of the protocol of the procedural action (conducting comparative research falls within the competence of an expert);
4) get acquainted with the protocol of the procedural action in which he took part, and make statements and comments to be recorded in the protocol regarding the completeness and correctness of recording the progress and results of the actions carried out with his participation (the comments indicated by the specialist are subject to mandatory entry in the protocol);
5) receive reimbursement of expenses incurred by him and remuneration for the work performed by him, which is not included in the scope of his direct official duties.
These rights are not exhaustive.
The provisions of part 3 of the commented article oblige a specialist to appear at the summons of a judge, an authority (official) conducting proceedings on an administrative offense. In addition, the specialist is required to be present at the hearing of the case, using his special knowledge, skills and scientific and technical means that he can use. The specialist is also required to provide explanations about the actions he performs, and to certify with his personal signature the fact, content and results of these actions.
For refusal or failure to appear without valid reasons to the body (official) considering the case of an administrative offense, the specialist bears administrative responsibility in accordance with art. 661 of the Administrative Code. The drive does not apply to the specialist.
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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