Comment to article 767. Explanations of the person against whom proceedings on an administrative offense are being conducted, testimony of the victim and witness of the Code of the Republic of Kazakhstan on Administrative Offenses  

     1. The explanations of the person in respect of whom the proceedings are being conducted, the testimony of the victim and the witness are relevant information provided by these persons orally or in writing.

     If necessary, scientific and technical means can be used in videoconference mode during the proceedings on an administrative offense.

     The procedure for such use of videoconferencing facilities is determined by the body responsible for the organizational and logistical support of the courts, taking into account the requirements of this Code.

     2. The explanations of the person in respect of whom the proceedings are being conducted, the testimony of the victim and the witness are reflected in the protocol on the administrative offense or on the application of a measure to ensure the proceedings, and if necessary, they are formalized by the protocol of the interview and attached to the case.

     3. Explanations of the person in respect of whom proceedings on an administrative offense are being conducted, witness statements are entered into the protocol on an administrative offense only after it is fully completed and the specified persons are informed of their rights and obligations provided for by this Code.

     4. In case of non-compliance with the requirements provided for in part three of this article, the explanations of the person against whom the proceedings on an administrative offense are being conducted, the testimony of the witness shall be considered as having no force of evidence and cannot be recognized as evidence.

     Part 1. An explanation should be understood as information relevant to the case, confirming, refuting, clarifying, clarifying, justifying, confessing, communicated by an individual or a representative of a legal entity to an official who is investigating an administrative offense case, in response to his questions about any events, acts, persons, objects, states, etc..

     The explanations of the person against whom proceedings are being conducted in the case of an administrative offense, the testimony of the victim, the witness are evidence in the case of an administrative offense. These evidences are relevant information provided by these persons.  

     The person in respect of whom proceedings are being conducted on an administrative offense has the right to provide an explanation (explanations) and in no way is it his duty. According to paragraph 7 of Article 77 of the Constitution, "no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by law."  

     Also, the person against whom proceedings are being conducted on an administrative offense is not responsible for refusing to testify and knowingly giving false testimony. He can do this at any stage of the proceedings in an administrative case.  

     It should be borne in mind that the refusal of this participant in the administrative process to testify, as well as the failure to provide convincing evidence of his innocence in explanations, do not serve as proof of his guilt.  

     Giving testimony to victims in accordance with Part 2 of Article 745 of the Administrative Code is not an obligation, but a right. However, in Part 4 of the said article, the same is provided for as an obligation, in accordance with art. 754 of the Administrative Code. Unless, of course, it's about self-exposure, etc. (part 2).  

     The victim's testimony has equivalent evidentiary value with the explanations of the person against whom the proceedings on the administrative offense case are being conducted. In this regard, when evaluating evidence, the victim's testimony must necessarily be compared with other evidence collected in the case. The norm of clause 7 of Article 77 of the Constitution also applies to the victim and the witness.

     The similarity and difference between the concepts of "explanation" and "testimony" in administrative law have not been subjected to a special (separate) study by scientists. In practice, these concepts are recognized as identical and have no differences in the procedural and substantive part. At the same time, it is observed that the reliability of the explanation is not guaranteed by liability, and the testimony of the victim and witness is guaranteed by liability for giving false testimony in accordance with art. 659 of the Administrative Code.

     The subject of questioning of the person in respect of whom proceedings are being conducted on an administrative offense, the testimony of the victim and the witness, may be the circumstances specified in art. 766 of the Administrative Code.  

     Factual information from participants in the administrative process may be provided orally or in writing.

     If it is necessary to receive an explanation in writing, then a citizen can write it in his own hand, or ask a police officer about it. In the case when an explanation is recorded by police officers from the words of a citizen, it is necessary to let the citizen read it, or read it aloud himself. The explanation is signed by the interviewee, as well as by the person who selected it.

     Part 2. The explanations of the person in respect of whom the proceedings are being conducted, the testimony of the victim and the witness are reflected in the protocol on the administrative offense or on the application of a measure to ensure the proceedings, and if necessary, they are formalized by the protocol of the interview and attached to the case.

     In most cases, explanations are selected at the scene on a standard, pre-prepared explanation form, however, the explanation can also be recorded on a blank sheet of paper in any form, but with all the necessary data.

     When processing an explanation, it is necessary to indicate in it: the place where the explanation was issued (locality); date; position, title, surname and initials of the person who received the explanation; surname, first name, patronymic, date and place of birth of the interviewee; address and place of work (study), position; home and office phone numbers; passport data (series, number, when and by whom it was issued) or other identification document of the person being interviewed.

     The explanation should begin with the words: "In essence, I can show (explain) the following questions asked to me."

     The text of the explanation is always written in the first person, for example: "I saw," "I said," "I arrived."

     When receiving an explanation, it is necessary to write it down in the words and phrases used by the interviewee, excluding obscene expressions.  

     The explanation can be written in the form of a free presentation of events and facts by the interviewee, in the form of questions asked by a police officer and answers from the interviewee, as well as in a mixed form, when the free presentation of events and facts is interrupted by clarifying questions from the police officer.

     The interviewee must sign each page of the text. Corrections and strikethroughings of words are confirmed by the interviewee's signature next to or at the end of the explanation.

     At the end of the explanation, before the interviewee's signature, it is necessary to write: "It is written correctly from my words, I have read it, I have no comments or additions."

     If, for some reason, the interviewee could not read the text of the explanation himself, then the final entry should be stated in the following form: "It was written correctly from my words and read aloud by a police officer, I have no comments or additions."

     In some cases, the interviewee expresses a desire to personally write an explanation, then it should end with the entry: "Written in his own hand."

     There are cases when the interviewee himself is unable to sign an explanation, for example, with a broken arm. Then the police officer should invite two witnesses and make the following entry: "It is written from my words correctly and I have read it, which is confirmed by those who understand":

     1) Sultan Sultanovich Sultanov, born in 2000, residing in Nur-Sultan, sh. Kaldayakov str., 2/1, sq. 8. Signed.

     2) Petrov Petr Petrovich, born in 1987, resident: Nur-Sultan, Baraeva str., house 5, sq. 89. Signed.

     In conclusion, the explanation is signed by the police officer who selected it.

     If necessary, scientific and technical means can be used in videoconference mode during the proceedings on an administrative offense.  

     A survey using scientific and technical means in video communication mode is a type of survey conducted in real time with the remote presence of the interviewee through scientific and technical means in video communication mode, in which audio and video information can be exchanged. The main goal is to obtain, as soon as possible and without significant material costs, the testimony of participants in the administrative process who are located at a distance from the place of proceedings in the case of an administrative offense.  

     The procedure for such use of videoconferencing facilities is determined by the body responsible for the organizational and logistical support of the courts, subject to the requirements for scientific and technical facilities, which are fixed in art. 778 of the Administrative Code.

     The norm of part 3 of this article is aimed at preventing cases of distortion, falsification of the testimony of participants in the administrative process, as well as non-explanation, incomplete or incorrect explanation of their rights and obligations, according to Part 3 of Article 765 of the Administrative Code. This version has become an innovation of the 2014 Administrative Code and is designed to ensure that giving explanations will be a conscious and legitimate consequence of the exercise of their rights by these persons, and the authorized body (official) will not take advantage of the ignorance of the person against whom proceedings on an administrative offense are being conducted as a witness to their procedural rights provided for by law.

Part 4. This provision once again focuses on the requirement set out in Part 3 of art. 765 and Part 3 of art. 767 of the Administrative Code, according to which, when establishing the fact of obtaining evidence in violation of the law, evidence is deemed to be null and void and cannot be used as the basis for a decision on the case, as well as used in proving any the circumstances of the case.

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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