Comment to article 775. Obtaining samples by a doctor or other specialist, as well as an expert The Code of the Republic of Kazakhstan on Administrative Offences
1. The judge shall refer to the doctor or other specialist the person from whom the samples are to be obtained, as well as the definition with the appropriate instruction. The definition should specify the rights and obligations of all participants in this procedural action.
2. A doctor or other specialist, on behalf of the judge, performs the necessary actions and receives samples. The samples are packed and sealed, after which they are sent to the judge along with an official document drawn up by a doctor or other specialist.
3. In the course of the study, the expert may produce experimental samples, which he reports in the conclusion.
4. The judge has the right to be present during the production of such samples, which is reflected in the protocol drawn up by him.
5. After conducting the study, the expert attaches the samples to his conclusion in a packaged and sealed form.
6. If the samples are received by a specialist or expert on behalf of the judge, he/she draws up an official document, which is signed by all participants in the procedural action and handed over to the judge for inclusion in the case file.
7. The received samples in packaged and sealed form are attached to the protocol.
Part 1. If there are grounds for obtaining (removing) samples from a doctor or other specialist (Article 774 of the Administrative Code), the judge directs the person from whom the samples are to be obtained to a specialized medical or expert institution in which the doctor or specialist performs the procedure for obtaining samples.
A doctor or other specialist receives samples from a person based on a judge's ruling.
The definition should specify:
- the person who will receive the samples;
- the person (organization) from whom the samples should be obtained;
- which samples and in what quantity should be obtained;
- when and to whom should a person come to receive samples from him;
- when and to whom the samples should be submitted after receiving them.
In addition to this information, the rights and obligations of all participants in this procedural action must be indicated. Otherwise, according to the norms of art. 765 of the Administrative Code, evidence obtained as a result of this procedural action without clarifying the rights and obligations of its participants entails the loss of its evidentiary value and recognition as inadmissible.
Part 2. Based on the determination of the judge, the doctor or other specialist performs the necessary actions to obtain samples. In the process of obtaining samples, the principles previously disclosed in the commentary to Article 774 of the Administrative Code must be observed.
On receipt of samples (samples), a doctor or other specialist draws up a protocol (act) on receipt of samples, in which:
- indicates the actions that were performed by him when receiving samples (samples);
- describes the obtained samples (samples) according to their organoleptic (external physical) characteristics;
- describes the applied research and other methods and procedures;
- indicates the method of packaging and storage of the obtained samples (samples).
The official document (protocol, act) on the receipt of samples (samples) is signed by a doctor or other specialist, as well as by the person from whom the samples were received.
The samples (samples) received by the specialist, together with the official document, are sent to the judge.
Part 3. This part assigns the expert the right to produce experimental samples in the process of expert research. Considering that samples are obtained from living persons, the expert, when conducting an expert study of a living person, has the right to receive from him objects that are products of his activity or the vital activity of his body necessary for the study.
Experimental samples are samples specially made at the suggestion of an expert or judge.
If the expert receives samples (samples) during the examination, this should be reflected in the expert's conclusion, indicating specific samples (samples). After carrying out expert studies, the expert is obliged to attach the samples (samples) that were not consumed (not used) during the examination to the expert opinion in packaged and sealed form.
Part 4 of this Article assigns to the judge the right to be present during the production of experimental samples by the expert. A protocol of a separate procedural action is drawn up on the presence of a judge during the manufacture of such samples, which must comply with the requirements of the Administrative Code.The judge who is considering the case of an administrative offense has the right to participate in this process.
Part 5. In this part, the expert's obligation is fixed after conducting the study to attach (attach) unused samples to the conclusion. These samples must be packed by an expert and sealed by him.
The specified provisions on sealing samples unused during the expert examination are observed if the expert opinion is carried out by an expert from an expert institution. However, when conducting an examination on a one-time basis, it is unlikely that the expert will have a personal seal to seal the unused samples packaged.
Part 6. In this part, the legislator establishes a procedure for recording the fact that samples were received by an expert or a specialist on behalf of a judge. On receiving samples, an expert or specialist is required to draw up an official document (act, protocol), which is signed by the expert (specialist), the person from whom the samples were received, as well as all participants in this procedural action.
Participants in the procedural action should be understood as all persons who performed the manipulations necessary to obtain samples, including servicing the research procedures used to obtain samples or ensuring compliance with the procedures necessary to obtain samples.
The official document on receipt of samples is handed over to the judge.
Part 7 of the article indicates that the specialist or expert who produced the samples shall attach the samples received in packaged and sealed form to the protocol.
At the same time, the term "protocol" should be understood not only as the protocol of a separate procedural action, which is drawn up if a judge is present when receiving samples, but also as an official document that is drawn up by a specialist or expert upon receipt of samples.
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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