Comment to article 787. Administrative detention The Code of the Republic of Kazakhstan on Administrative Offences
Administrative detention, that is, a short-term restriction of the personal freedom of an individual, a representative of a legal entity, or an official in order to prevent an offense or ensure proceedings, may be carried out:
1) by internal affairs bodies – upon detection of administrative offenses, the cases of which, in accordance with Article 685 of this Code, are considered by internal affairs (police) bodies, or administrative offenses, in cases of which, in accordance with subparagraph 1) Protocols on administrative offenses are drawn up in the first part of Article 804 of this Code.;
2) the commandant's office of the area where the state of emergency has been declared and military patrols – in case of violation of the state of emergency and actions provoking a violation of law and order in a state of emergency;
3) by officials participating in the anti–terrorist operation, within the limits of their established competence, in case of violation of the legal regime of the anti-terrorist operation or failure to comply with the requirements established in connection with the announcement of the anti-terrorist operation.;
4) officials of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan – upon detection of administrative offenses considered by them in accordance with part three of Article 726 of this Code or administrative offenses in cases of which, in accordance with subparagraph 44) of part one of Article 804 of this Code, protocols on administrative offenses are drawn up.;
5) senior military personnel at the location of the protected facility, an employee of internal affairs bodies, special state bodies, an official of paramilitary security – when committing offenses related to encroachment on protected facilities, other foreign property;
6) bodies of forestry, wildlife, specially protected natural territories exercising state control and supervision, as well as specialized organizations of the authorized body and local executive bodies – when committing offenses in the field of forest legislation of the Republic of Kazakhstan, legislation of the Republic of Kazakhstan in the field of protection, reproduction and use of wildlife, in the field of specially protected natural territories;
7) transport control authorities – in case of violation of the rules, which are monitored by these authorities.;
8) military police officials – upon detection of administrative offenses, the cases of which, in accordance with Article 727 of this Code, are considered by military police authorities, or administrative offenses, in cases of which, in accordance with subparagraph 4) Protocols on administrative offenses are drawn up in the first part of Article 804 of this Code.;
9) bodies of state control in the field of environmental protection and the use of natural resources – in case of violation of environmental legislation;
10) officials of state revenue bodies – when committing offenses in the fields of business, trade and finance, taxation, customs affairs in accordance with the jurisdiction of cases of administrative offenses.;
11) excluded by the Law of the Republic of Kazakhstan dated 04/06/2016 No. 484-V;
12) officials of the state mining supervision bodies, the Border Guard Service of the National Security Committee of the Republic of Kazakhstan, the authorized body for geology and subsoil use, environmental and natural resources protection bodies, the republican fisheries authority – when committing administrative offenses on the continental shelf, territorial waters (sea) and inland waters related to violation of the license terms governing permitted activities on the continental shelf, territorial waters (sea) and inland waters of the Republic of Kazakhstan, violation of the rules for conducting resource or marine scientific research, violation of the rules for the disposal of waste and other materials, failure to comply with legal requirements of officials of the bodies protecting the continental shelf, territorial waters (sea) and internal waters of the Republic of Kazakhstan on stopping a vessel or obstructing its implementation;
13) excluded by the Law of the Republic of Kazakhstan dated December 29, 2014 No. 272-V;
14) officials of the State Security Service of the Republic of Kazakhstan – if the offense is committed during security measures to ensure the safety of protected persons.;
14-1) by officials of the authorized body: in the field of veterinary medicine, plant quarantine – in case of violation of the rules, requirements, control and supervision of which are carried out by these bodies; in the field of plant protection – in case of violation of the rules, requirements, control of which is carried out by this body;
15) bailiffs – in case of failure to comply with the requirements to stop illegal actions in the courtroom during the court session, as well as during the enforcement of enforcement documents.
Everyone knows the norm of paragraph 2 of Article 16 of the Constitution, according to which a person may be detained for a period of no more than seventy-two hours. The short duration of detention is dictated by its nature.
Administrative detention is a measure of "administrative restraint" applied to a person who commits or has committed an administrative offense. Very often, this measure is used by officials to stop the illegal actions of a person who has committed an administrative offense. This applies to offenses such as drinking alcoholic beverages or appearing intoxicated in a public place, committing minor hooliganism, offenses in the family and household sphere, driving while intoxicated, malicious disobedience to lawful requirements of law enforcement officers, etc.
At the same time, administrative detention is a measure to ensure the proceedings in the case of an administrative offense.
Administrative detention consists in the compulsory short-term imprisonment of an individual. Detention should not be confused with the actual restriction of freedom of an individual, which occurs when delivering or applying an administrative penalty.
A person who is actually detained by authorized officials and taken to the premises of an executive authority is not yet considered administratively detained. The state of administrative detention arises from the moment the detainee is placed in a specially designated room.
The purposes of administrative detention are:
- proper and timely consideration of an administrative offense case;
- execution of the decision in the case of an administrative offense.
Administrative detention may take place only if there are elements of an administrative offense in the actions of the detained person. However, it is not necessary for such an offense to include administrative arrest in its sanction as an administrative penalty.
Detention is unacceptable if there is no element of an administrative offense.
The exception is the administrative detention of mentally ill people and minors, whose presence in public places poses a danger to others and to themselves.
Administrative detention is also not allowed.:
- if the administrative offense is insignificant and it can be suppressed by other means (the violator's fulfillment of the requirement to stop the offense, an oral remark, an explanation of the illegality and inadmissibility of an action (inaction), etc.);
- if it is possible to establish the identity of the violator and the circumstances of the incident at the place of commission of the offense, draw up a protocol on an administrative offense.;
- if there is a reason for imposing a penalty in the form of a warning or fine at the place of commission of an administrative offense, without drawing up a protocol.
This article provides an exhaustive list of officials authorized to carry out detention. These are:
1) officials of the internal affairs bodies;
2) officials of the local commandant's office and military patrols during a state of emergency;
3) officials involved in the anti-terrorist operation;
4) officials of the Border Guard Service of the National Security Committee;
5) officials of special state bodies and paramilitary guards;
6) officials of forestry, wildlife, and specially protected natural territories exercising state control and supervision, as well as specialized organizations of the authorized body and local executive bodies;
7) officials of transport control bodies;
8) Military police officials;
9) officials of state control bodies in the field of environmental protection and use of natural resources;
10) officials of state revenue bodies;
11) officials of the state mining supervision bodies;
12) officials of the State Security Service;
13) bailiffs;
14) officials of the authorized body in the field of veterinary medicine and in the field of plant protection.
All of the above-mentioned officials are authorized to carry out administrative detention only if the consideration of an administrative offense falls within their jurisdiction, or if they are authorized to draw up a protocol on the committed administrative offense.
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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