Comment to Article 768. Presentation of evidence of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Evidence may be provided by the parties and other participants in the administrative proceedings.
2. If the evidence presented is insufficient, the court or the body considering the case may invite the participants in the process to submit additional evidence or collect it on their own initiative.
Part 1. An analysis of the norms contained in Chapter 38 of the Administrative Code showed that the following participants in the administrative process have the right to present evidence:
- a person in respect of whom proceedings are underway on an administrative offense (art. 744 of the Administrative Code);
- the victim (Article 745 of the Administrative Code);
- legal representatives of an individual (art.7 46 of the Administrative Code);
- representatives of a legal entity (Article 747 of the Administrative Code);
- defender (Article 748 of the Administrative Code);
- the victim's representative (Article 753 of the Administrative Code).
For the most accurate understanding of such an action as the presentation of evidence, it is necessary to refer to the conceptual framework. So, presenting something means providing, handing over something for review, consideration, making a conclusion; reporting, citing something as justification, evidence of something.
The exercise of the right to present evidence lies in the fact that the participants listed above can transfer evidence relevant to the case to the body (official) and the court in which the case of an administrative offense is pending or considering this case.
The parties prove not only the circumstances they refer to, but also those that must be established by the court, body (official) in their interests.
The party must have in hand or know where to obtain evidence that fully substantiates, confirms and discloses the stated position. Also, the party must be ready not only to present the originals of documents or other evidence, but also to transfer them for examination.
For example, when submitting any copies of evidence to the court (especially written evidence), the participants in the process must be prepared to present the originals, otherwise such evidence will at best be considered indirect, and at worst it will not be taken into account at all.
In the case of the presentation of audio or video recordings or data on electronic media, for example, a special examination may be conducted to establish the authenticity of such evidence. Payment for such an examination, as a rule, is assigned to the party that filed the request for such an examination.
Part 2. If the evidence presented is insufficient, the court or the body considering the case may invite the participants in the process to submit additional evidence or collect it on their own initiative.
Each decision in the administrative process is based on evidence that has such properties as relevance, admissibility, reliability, and in their entirety – in terms of their sufficiency to make a decision on an administrative offense case.
The evidence may be considered insufficient if the evidence available in the case does not allow the case to be resolved. The sufficiency of evidence is not a quantitative, but a qualitative indicator. A single piece of indirect evidence, contradictory evidence, if there is no evidence of the circumstances of the subject of proof, etc., is not sufficient for the court to conclude on the case.
Collecting means collecting something, concentrating it somewhere, mining, acquiring or searching. In other words, collection is the activity of collecting evidence, carried out in order to prove the truth within the framework of an administrative process.
The collection of evidence is subject to a number of conditions. These are:
- collecting evidence only in ways prescribed by law;
- the use of legitimate methods of collecting evidence only within the framework of their procedural procedure, which is established by law.;
- collecting evidence only by a person authorized by law;
- objectivity and impartiality in collecting evidence.
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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