Comment to article 757. Expert The Code of the Republic of Kazakhstan on Administrative Offences
1. A person with special scientific knowledge who is not interested in the case may be called in as an expert. The production of a forensic examination may be entrusted:
1) employees of the judicial examination bodies;
2) individuals engaged in forensic expertise on the basis of a license;
3) on a one-time basis to other persons in accordance with the requirements of the law.
2. The expert has the right: to get acquainted with the case materials related to the subject of the examination; to file petitions for the provision of additional materials necessary for giving an opinion, to participate in the procedural actions with the permission of the body (official) in charge of the administrative offense case, and to ask the persons participating in them questions related to the subject of the examination.; to get acquainted with the protocol of the procedural action in which he participated, and to make comments to be entered into the protocols regarding the completeness and correctness of recording his actions and testimony; in agreement with the judge, the body (official) who appointed the forensic examination, to give, within his competence, an opinion on the circumstances identified during the forensic examination, having significance for the case that goes beyond the issues contained in the ruling on the appointment of a forensic examination; submit an opinion and give evidence in his native language or the language he speaks; use the free help of an interpreter; challenge the translator; appeal against decisions and actions of the court and other persons involved in the proceedings that infringe on his rights during the examination; receive reimbursement of expenses incurred during the examination and remuneration for the work performed, if the production of a forensic examination is not included in the scope of his official duties.
3. An expert may not: negotiate with participants in the proceedings on an administrative offense on issues related to the examination without the knowledge of the body conducting the proceedings; independently collect materials for research; conduct research that may lead to the complete or partial destruction of objects or a change in their appearance or basic properties, if on the basis of This was not a special permission from the body that ordered the examination.
4. The expert is obliged to: appear at the summons of a judge, body (official) in charge of an administrative offense case; conduct a comprehensive, complete and objective study of the objects presented to him, give a reasoned written opinion on the issues raised before him; refuse to give an opinion and make a reasoned written statement about the impossibility of giving an opinion and to send it to the body (official) who appointed the judicial examination in the cases provided for in Part thirteen of Article 722 of this Code.; to give evidence on issues related to the conducted research and this conclusion; to ensure the safety of the objects under investigation; not to disclose information about the circumstances of the case and other information that became known to him in connection with the examination.
5. An expert shall be liable for giving a knowingly false conclusion in accordance with this Code.
6. An expert who is an employee of a judicial examination body is considered to be familiar with his rights and duties by the nature of his activity and warned about responsibility for knowingly giving a false conclusion in court, provided for by this Code.
An expert examination, as a specific procedural form of evidence in an administrative case, is appointed in cases where factual data relevant to the case can only be obtained as a result of research conducted by an expert based on special scientific knowledge.
Part 1. Any adult person who is not interested in the outcome of the case and has special scientific knowledge sufficient to conduct an expert examination and provide an expert opinion may be involved as an expert in an administrative offense case.
A judge, an authority (official), considering a case of an administrative offense, must examine, evaluate and use the evidence provided. Therefore, the expert, dealing with the evidence already collected, receives new previously unknown factual data based on their study, which is reflected in his conclusion.
As with the involvement of a specialist, the most important condition for choosing and appointing an expert in an administrative offense case is his disinterest in the outcome of the case. Other requirements established by the legislation of the Republic of Kazakhstan may be imposed on the expert.
In accordance with paragraph 1 of Article 19 of the Law of the Republic of Kazakhstan dated February 10, 2017 "On forensic expertise in the Republic of Kazakhstan", the production of a forensic examination may be entrusted:
1) employees of the judicial examination bodies;
2) individuals who carry out forensic expertise on the basis of a license;
3) on a one-time basis to other persons in the cases provided for by the above-mentioned law.
Subparagraph 11) of Article 1 of the above-mentioned law states that the body of judicial expertise is a state-owned legal entity engaged in forensic expertise in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
A judicial expert in the Republic of Kazakhstan (employees of judicial examination bodies and individuals engaged in forensic expert activities on the basis of a license) is a citizen of the Republic of Kazakhstan who has a higher education, has the qualification of a judicial expert, confirmed by a qualification certificate for the right to conduct a certain type of forensic examination, certified in cases and in accordance with the procedure provided for by the Law, who is entrusted with the production forensic examination.
The production of a forensic examination on a one-time basis may be entrusted in the following cases::
1) appointment of a forensic examination that is not provided for in the list of types of forensic examinations established by the Ministry of Justice of the Republic of Kazakhstan;
2) satisfaction of a reasoned challenge to judicial experts of the relevant specialty who are employees of the judicial examination bodies, as well as to persons engaged in forensic expert activity on the basis of a license, or reasoned suspension from the judicial examination of the judicial examination body as a whole;
3) involving a judicial expert of a foreign state in accordance with Article 62 of the mentioned Law.
The key requirement for experts is that they have special scientific knowledge. In accordance with paragraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated February 10, 2017 "On forensic expertise in the Republic of Kazakhstan", special scientific knowledge is a field of special knowledge, the content of which is scientific knowledge implemented in the methods of forensic research. The requirement of scientific knowledge is the most important difference between him and a specialist, whose special knowledge is not required by law to be scientific.
Part 2. The expert has the following procedural rights:
1) to get acquainted with the case materials related to the subject of the examination;
2) submit petitions for the provision of additional materials necessary for giving an opinion.;
3) participate in the production of procedural actions with the permission of the body (official) in charge of the administrative offense case and ask the persons involved in them questions related to the subject of the examination.;
4) get acquainted with the protocol of the procedural action in which he participated, and make observations to be entered into the protocols regarding the completeness and correctness of recording his actions and testimony.;
5) in agreement with the judge, the body (official) who appointed the forensic examination, to give, within its competence, an opinion on the circumstances identified during the forensic examination that are relevant to the case, going beyond the issues contained in the ruling on the appointment of a forensic examination.;
6) to present an opinion and give evidence in his native language or a language he knows;
7) use the free help of a translator;
8) challenge the translator (if, as a result of the relevant examination, it has been established that the translator does not have the necessary knowledge of the language and cannot provide a high-quality translation);
9) appeal against the decisions and actions of the court and other persons participating in the proceedings that infringe on his rights during the examination;
10) receive reimbursement of expenses incurred during the examination and remuneration for the work performed, if the conduct of a forensic examination is not included in the scope of his official duties.
Undue influence on a judicial expert and obstruction of his legitimate activities are unacceptable and entail liability established by law.
The forensic expert is independent in the choice of scientific and technical means, methods and research methods, the admissibility of which is determined by law, necessary, in his opinion, to study these specific objects of expertise.
The most controversial and sensitive from the point of view of practical activity is the regulation of forensic research methods. The methodology of forensic expert research is understood as a system of methods used in the study of objects of forensic examination to establish factual data related to the subject of forensic examination (paragraph 6, paragraph 1, Article 1 of the Law).
In accordance with Article 12 of the above-mentioned Law, it is the Ministry of Justice that is responsible, among other things, for:
"9) development and approval of rules for the validation of methods and techniques of forensic research;
10) development and approval of rules for the development, testing and implementation of forensic research methods;
11) development and approval of rules for the formation, maintenance and use of the State Register of Forensic Research Methods of the Republic of Kazakhstan;
12) maintaining the State Register of methods of forensic expert research of the Republic of Kazakhstan".
Part 3. The expert is not entitled to:
1) to negotiate with participants in the proceedings on an administrative offense on issues related to the examination, without the knowledge of the body conducting the proceedings (i.e., when this is unknown to the official in charge of the administrative offense case); however, the expert does not need to ask for permission to perform these actions. from the court or an official, and it is enough just to notify them in advance about the upcoming negotiations.;
2) independently collect materials for research (the expert can only file a request for the provision of materials necessary for giving an opinion, thereby requiring the authorized official to collect the necessary evidence; however, the expert himself has no right to carry out the same actions aimed at collecting evidence (receive explanations, request documents, etc.);
3) to carry out research that could lead to the complete or partial destruction of objects or a change in their appearance or basic properties, unless there was a special permission from the body that appointed the examination.
This circumstance is another crucial difference in the competence of a specialist and an expert. The former have no right to conduct research that could lead to the complete destruction of research objects, unlike experts.
Destructive methods of expert examination are methods of expert research, which, when implemented, lead either to the destruction of the object as a whole or the sample under study, or to irreversible changes in the composition, structure or individual properties of the object while maintaining its shape and appearance. These changes may negatively affect the entire course of administrative proceedings. For example, as a result of a chemical examination, the amount of the narcotic substance under investigation may decrease. And in the future, due to a decrease in the mass of the seized narcotic substance, the qualification of the committed act and, accordingly, the penalty for the committed offense may change.
In accordance with the gradation of expert research methods, depending on the degree of preservation of the object, they are divided as follows:
a) not affecting the facility in any way and not requiring sample preparation for implementation;
b) not destroying the object, but changing its composition, structure, or individual properties;
c) not destroying the sample, but requiring the destruction or modification of the object for its manufacture;
d) completely or partially destroying the sample or the object of the study.
Part 4 of the commented article provides for the following duties of an expert:
- appear at the summons of the judge, the body (official) in charge of the case of an administrative offense;
- to conduct a comprehensive, complete and objective study of the objects presented to him, to give a reasoned written opinion on the issues put to him;
- refuse to give an opinion and draw up a reasoned written notice of the impossibility of giving an opinion and send it to the body (official) who appointed the forensic examination (an expert's refusal to give an opinion is allowed if, before conducting the study, he finds that the questions posed to him go beyond his special knowledge, or presented to him the materials are unsuitable or insufficient to provide an opinion and cannot be supplemented, or the state of science and expert practice does not allow answering the questions raised);
- to give evidence on issues related to the conducted research and this conclusion;
- to ensure the safety of the studied objects;
- not to disclose information about the circumstances of the case and other information that became known to him in connection with the examination.
Part 5. For refusal or non-appearance without valid reasons to the body (official) considering the case of an administrative offense, the expert bears administrative responsibility in accordance with art. 661 of the Administrative Code. The drive does not apply to the expert.
For knowingly giving a false conclusion to the body (official) considering the case of an administrative offense, the expert bears administrative responsibility in accordance with art. 659 of the Administrative Code.
For giving a deliberately false conclusion in the judicial review of an administrative offense case, an expert is criminally liable in accordance with art. 420 of the Criminal Code.
Part 6. An expert who is an employee of the judicial examination bodies, from the moment he begins his work in these bodies, is considered to be aware of criminal liability for knowingly giving a false conclusion in court. Therefore, he is not notified about this by the authorized official who appointed the examination, and the subscription is not withdrawn from him.
In addition, his rights and obligations, as well as the legal consequences of giving him a deliberately false conclusion, are also not explained to him, since by the nature of his work he is already aware of all this.
If the expert examination is not entrusted to an employee of the judicial examination authorities, but to other persons authorized in accordance with the Law of the Republic of Kazakhstan "On Forensic Expertise in the Republic of Kazakhstan" to conduct an expert examination, then before conducting an expert examination, the official considering the case of an administrative offense must explain to them their procedural rights and obligations during proceedings in the case of an administrative offense, as well as to warn of responsibility for knowingly giving a false conclusion.
It should also be remembered that, in accordance with Article 762 of the Administrative Code, a person's previous participation in a case as an expert is a circumstance that precludes assigning him to conduct an expert examination in cases where it is reappointed after an expert examination conducted with his participation.
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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