Comment to article 761. Liability for non-fulfillment of procedural duties  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Failure to perform the procedural duties provided for in Articles 754, 756, 757, 758 of this Code by a witness, specialist, expert and translator shall entail administrative liability established in Articles 658, 659, 661 of this Code.

     2. In the case of the commission of the actions specified in part one of this article, when considering a case of an administrative offense, complaint, appeal motion, protest of the prosecutor against the decision on the case, a corresponding entry shall be made in the protocols of consideration of the complaint, appeal motion, protest of the prosecutor against the decision on the case.

     Part 1. This article discusses the issues of responsibility of a witness, specialist, expert and translator for their failure to fulfill their procedural duties provided for by the norms of the Administrative Code. Becoming participants in the proceedings on an administrative offense, these persons inevitably acquire procedural responsibilities. Such duties of a witness, specialist, expert and translator are specified in previous articles of the Administrative Code, namely: part 3 of art. 754, Part 3 of art. 756, part 4 of art. 757, part 4 of art. 758 of the Administrative Code. So, let's take a closer look at the procedural duties of these persons in the proceedings on administrative offenses.  

     The duties of the witness include the following actions::

     - appear at the summons of the judge, the body (official) in charge of the administrative offense case, truthfully report everything he knows about the case and answer the questions raised.;

     - to certify with his signature in the relevant protocol the correctness of his testimony.

     A specialist involved in administrative proceedings must:  

     - to appear at the summons of the judge, the body (official) conducting the proceedings in the case of an administrative offense;  

     - participate in the procedural action using special knowledge, skills and scientific and technical means;  

     - to give explanations about his actions.;  

     - to certify with his signature the fact of the commission of the specified actions, their content and results.

     The procedural duties of an expert in the proceedings on an administrative offense are the following actions:  

     - 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 statement about the impossibility of giving an opinion and send it to the body (official) who appointed the forensic examination if the questions posed to him go beyond his special knowledge or the materials submitted to him are unsuitable or insufficient for giving an opinion and cannot be completed, or the state of science and expert practice does not allow to answer the questions posed;

     - 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.

     An interpreter, participating in the proceedings on an administrative offense, is obliged to:  

     - appear at the summons of the judge, the body (official) in charge of the administrative offense case, and perform the translation assigned to him fully and accurately;  

     - verify the correctness of the translation with your signature in the relevant protocol.

     The following articles of the Administrative Code provide for the administrative responsibility of a witness, a specialist, an expert and an interpreter for non-fulfillment of the above-mentioned procedural duties:  

     1) Article 658 "Refusal or evasion of a witness from giving evidence";

     2) Article 659 "Knowingly false testimony of a witness, victim, expert opinion or incorrect translation";

     3) Article 661 "Refusal or evasion of an official from fulfilling a resolution or instruction to conduct an expert examination or a requirement to summon a specialist."  

     The sanctions of all listed articles of the Administrative Code provide for the imposition of administrative penalties on citizens and officials in the form of an administrative fine.  

     It is worth noting that a witness, an expert and an interpreter, along with administrative responsibility, may also be criminally liable for non-fulfillment of their procedural duties. Let's look at such cases in more detail.

     If a witness has knowingly given false testimony or refused to testify during the judicial review of an administrative offense case, then he is subject to criminal liability in accordance with Articles 420, 421 of the Criminal Code of the Republic of Kazakhstan.

     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.  

     A translator is criminally liable under Article 420 of the Criminal Code of the Republic of Kazakhstan if he has knowingly made a false translation during the judicial review of an administrative offense case.  

     Part 2. If, during the administrative proceedings, the facts of the above-mentioned persons' evasion from fulfilling their procedural duties, circumstances, complaints from participants in the proceedings or an appeal petition, or the prosecutor's protest against the ruling on the case are revealed, an appropriate record is made.

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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