Comment to Article 788. Procedure of administrative detention of the Code of the Republic of Kazakhstan On Administrative Offences  

     1. A protocol is being drawn up on administrative detention. The protocol shall specify the date, time (to the minute) and the place where it was drawn up; the position, surname and initials of the person who drew up the protocol; information about the identity of the detainee; time, place and grounds for detention. The protocol is signed by the official who drafted it and the detainee. If the detainee refuses to sign the protocol, a record of this is made in it. A copy of the detention report is handed over to the person detained for committing an administrative offense.

     2. At the request of a person detained for committing an administrative offense, his relatives, the administration at his place of work or study, a defender, as well as the embassy, consulate or other representative office of a foreign state are immediately notified of his location in accordance with the procedure established by the legislation of the Republic of Kazakhstan. Notification of the detention of a minor to his parents or persons replacing them is mandatory.

     3. The military unit and military police bodies within their competence, in which the detainee is undergoing military training (military service), are immediately notified of the administrative detention of a serviceman or citizen called up for military training.

     4. The detained person shall be informed of his rights and obligations provided for in this Code, and a corresponding entry shall be made in the protocol on administrative detention.

     5. Failure to explain to a detained person his rights and obligations is a significant violation of the proceedings on an administrative offense and entails liability provided for by the legislation of the Republic of Kazakhstan.

     6. A person detained in accordance with the procedure established by this Code is subject to immediate release if the circumstances that served as the basis for his detention disappear.

     7. Persons subjected to administrative detention are kept in specially designated premises that meet sanitary requirements and exclude the possibility of their unauthorized abandonment.

     8. The conditions of detention of persons subjected to administrative detention, the norms of nutrition and the procedure for medical care of such persons are determined by the executive authorities.

     9. Minors who have been subjected to administrative detention are kept separate from adults.

     Part 1. Administrative detention, being a measure of administrative restraint, is at the same time classified as a measure of administrative procedural support, since during administrative detention a protocol on administrative detention is necessarily drawn up.  

     Since administrative detention is not allowed in the absence of an offense, the protocol on administrative detention should first reflect the basis for the application of this measure.

     It indicates: the date (year, month, day) and place of drawing up the protocol, the position, surname, first name and patronymic of the person who drew up the protocol; who is detained (information about the detainee's identity, indicating whether they are recorded according to documents and which one, according to the violator, his relatives or persons who know him well they know); time (hour, minutes), place and grounds of detention; explanations of the violator and his condition (state of health, presence and nature of injuries, intoxication, condition of clothing, etc.). Persons who directly delivered the violator may take part in drawing up the protocol.  

     The protocol on administrative detention is signed by the official who drafted it and the detained person. However, the detained person has the right to refuse to sign it. In such cases, a corresponding entry is made in the protocol in the presence of witnesses.

     The protocol on administrative detention is registered and sent together with the protocol on an administrative offense to the official considering the case of an administrative offense.

     The detained person should be given the opportunity to review the protocol on administrative detention. The specified person has the right to provide explanations and comments on the content of the protocol, which are attached to the protocol or directly fit into it.

     The possibility of obtaining an accurate copy of the detention protocol is also crucial for ensuring that a detained person has the right to familiarize himself with the protocol on administrative detention and the right to appeal against the application of administrative detention to him.

     Parts 2, 4 and 5. It is mandatory for the detainee to explain his rights and obligations provided for in Article 744 of the Administrative Code, which is recorded in the protocol on administrative detention. A more complete description of the rights of a detainee who has committed an administrative offense can be found in the commentary to this article.

     At the same time, he has the right to know for what administrative offense he was detained, as well as to appeal the fact of illegal detention, including in accordance with Chapter 44 of the Administrative Code.  

     In accordance with part 5 of the commented article, failure to explain to a detained person his rights and obligations is a significant violation of the proceedings on an administrative offense and entails liability provided for by the legislation of the Republic of Kazakhstan.  

     However, practice shows that there is a formalism in this matter. To clarify is to explain, to make it clear. Clarification of a right is the disclosure of its content, an explanation of how to use it and in what cases. An explanation should be distinguished from a reading, announcement, or enumeration of rights.  

     If a person does not understand their rights, does not understand their essence, is not aware of the methods of protection, then there is no need to talk about any high-quality protection.  

     The materials of the administrative cases show that no actual clarification of rights is being carried out. The most common ways of explaining rights to a detained person in administrative practice are a simple requirement to put a signature under the specified paragraph.  

     The most picky and demanding seek only the banal voicing of these rights (reading). Of course, there is no question of any clarification in this case. This practice deserves to be strongly condemned and rejected. Ensuring the rights of our citizens is a duty and a duty, not the right of bodies (officials), and as long as such a vicious practice takes place, when the elementary, basic thing, where the law begins, is not respected, no reforms will bring the desired effect. In this regard, Article 744 of the Administrative Code requires further improvement.

     An official who has carried out administrative detention of a person who has committed an administrative offense, at the request of the latter, is obliged to inform his relatives, the administration at the place of work or study, the defender, as well as the embassy, consulate or other representative office of a foreign state about the location in accordance with the procedure established by the legislation of the Republic of Kazakhstan.  

     The defender is invited by the detainee, his representatives, as well as other persons on behalf of or with the consent of the detainee. The detainee has the right to invite several defenders for protection.

     The defender has the right to participate in the proceedings on an administrative offense from the moment of the administrative detention of his client.

     When detaining a minor, the official is obliged to notify his parents or persons replacing them of the fact of the person's detention and the place of his stay immediately after the detention.

     If the appearance of the defender chosen by the detainee is impossible within three hours, the body (official) suggests that the detainee invite another defender, and in case of refusal, takes measures to appoint a defender through the bar association or its structural divisions.  

     The provisions of Article 750 of the Administrative Code require further improvement, according to which persons who commit an administrative offense, including detainees, are provided with a defense attorney by a judge or an authority (official) authorized to consider cases of administrative offenses. This requirement of the law is difficult to fulfill, since the detention is often carried out by persons who are authorized to draw up a protocol (record an administrative offense) and they often do not have the right to consider the case on its merits. This, accordingly, poses a significant threat to the constitutional right of such persons to protection.

     A lawyer enters into an administrative offense case as a defender upon presentation of a lawyer's certificate and a written notice of protection (representation) provided for by the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance". The demand for other documents confirming the lawyer's authority to conduct a specific case is prohibited.

     This is described in more detail in the commentary to Articles 749-752 of the Administrative Code.

     Part 3. In case of detention of a serviceman or a citizen called up for military training, the official is obliged to immediately notify the military unit and military police bodies within their competence, in which the detained person is undergoing military training (military service), of the fact of detention.

     At the same time, it is necessary to keep in mind the requirement of Article 32 of the Administrative Code that military personnel and military conscripts who are on military training camps are responsible for administrative offenses committed in the performance of official duties, according to disciplinary statutes, except in cases provided for in articles 651, 652, 667, 676, 677, 680, 681 Administrative Code.

Employees of special state and law enforcement agencies are responsible for administrative offenses committed in the performance of their official duties in accordance with regulatory legal acts regulating the procedure for serving in the relevant authorities.

     At the same time, for violations:

     - the regime of the State Border of the Republic of Kazakhstan;

     - the regime at checkpoints across the State Border of the Republic of Kazakhstan and the customs border of the Eurasian Economic Union;

     - legislation of the Republic of Kazakhstan on state secrets;

     - sanitary and epidemiological welfare of the population;

     - fire safety requirements;

     - traffic rules;

     - customs regulations outside the place of service;

     - legislation of the Republic of Kazakhstan on accounting and financial reporting;

     - budget and tax legislation of the Republic of Kazakhstan;

     - legislation of the Republic of Kazakhstan on public procurement;

     - rules of hunting, fishing, and other rules and regulations for the rational use and protection of natural resources,

     These persons are administratively liable on a general basis.  

     Administrative penalties in the form of deprivation of the right to carry and store firearms and cold weapons and administrative arrest may not be applied to these persons. And in accordance with Part 2 of Article 913 of the Administrative Code, they are arrested in the guardhouses.  

     It should also be remembered that in accordance with art. 877 of the Administrative Code:  

     1) heads of diplomatic missions of foreign states, members of the diplomatic staff of these missions and members of their families, if they live together with them and are not citizens of the Republic of Kazakhstan;

     2) diplomatic couriers;

     3) heads and representatives of foreign states, members of parliamentary and governmental delegations and, on the basis of reciprocity, employees of delegations of foreign states arriving in Kazakhstan to participate in international negotiations, international conferences and meetings or with other official assignments, or following for the same purposes in transit through the territory of the Republic of Kazakhstan and family members of these persons who accompany them, if these family members are not citizens of the Republic of Kazakhstan;

     4) heads, members and staff of representative offices of foreign states in international organizations, officials of these organizations located in the territory of the Republic of Kazakhstan, on the basis of international treaties or generally recognized international customs;

     5) heads of diplomatic missions, members of the diplomatic staff of representative offices of foreign states in a third country passing through the territory of the Republic of Kazakhstan, and members of their families who accompany these persons or travel separately in order to join them or return to their country;

     enjoy personal inviolability. If they have documents confirming their status as persons enjoying diplomatic immunity, they cannot be subjected to a personal search, detained or brought to court for committing an administrative offense. Their belongings may also not be searched.

     Part 6. If, after the expiration of the prescribed period of detention (the time limits of detention are established by Article 789 of the Administrative Code), a penalty is not imposed on the detainee in accordance with the established procedure, or if the grounds for detention are not confirmed, such a detainee is subject to immediate release.  

     Practice often omits a significant aspect from the point of view of protecting the rights of citizens. This is marking the exact time of the detainee's release. These entries in the protocol may be essential if the detained person appeals against the validity of his detention and verifies the legality of the application of this measure in accordance with Chapter 44 of the Administrative Code.

     Part 7. The place and procedure of detention of detained persons is an important guarantee of respect for the rights of a person against whom administrative detention is applied as a measure to ensure proceedings on an administrative offense.

     The place of detention of the detained persons depends on which offense and which of the authorized persons (which body) carried out the detention. However, regardless of this, detainees are kept separately from those held under administrative arrest in a specially designated room.  

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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