Comment to article 789. Terms of administrative detention The Code of the Republic of Kazakhstan on Administrative Offences
1. Administrative detention shall be carried out during the time necessary to achieve the goals specified in Article 785 of this Code and may last no more than three hours.
The beginning of the period of detention is the hour, to the exact minute, when the restriction of the detained person's freedom has become real, regardless of whether the detainee has been given any procedural status or other formal procedures. The term of administrative detention in relation to a person who is in a state of intoxication is from the time of his sobering up, certified by a medical professional. The end of this period is the expiration of three hours, calculated continuously from the time of the actual detention.
2. A person against whom proceedings have been initiated for illegal entry into protected facilities, violation of the legislation of the Republic of Kazakhstan in the field of population migration, violations of the regime of the State Border of the Republic of Kazakhstan, border and customs regimes or the regime at checkpoints across the State Border of the Republic of Kazakhstan and the customs border of the Eurasian Economic Union, as well as an administrative offense on the continental shelf, territorial waters (sea) and internal waters of the Republic of Kazakhstan, may be detained, if necessary, to establish the identity and clarify the circumstances of the offense for up to forty-eight hours, with a written notification to the prosecutor within twenty-four hours from the moment of detention. Persons who violate the procedure established in connection with the imposition of a curfew in an area where a state of emergency has been declared may be detained by law enforcement officers (police) or military patrols until the end of the curfew, and those who do not have documents with them – until their identity is established, no more than for forty-eight hours.
3. A person against whom proceedings have been initiated in a case of an administrative offense entailing administrative arrest as one of the measures of administrative punishment may be subjected to administrative detention until the case of an administrative offense is considered, but not more than twenty-four hours.
Part 1. Administrative detention of a person who has committed an administrative offense may last no more than three hours.
In exceptional cases, due to special necessity, the legislative acts of the Republic of Kazakhstan establish other terms of administrative detention. Thus, in accordance with the Law of the Republic of Kazakhstan dated February 8, 2003 "On the state of emergency", citizens who violate the rules of the curfew are detained by law enforcement officers (police) until the end of the curfew, and persons who do not have identification documents with them - until their identity is established, but no more for less than 48 hours by decision of the head of the internal affairs body or his deputy.
The total period of administrative detention includes three hours. Within three hours from the moment of the beginning of the detention, the authorized official is obliged to carry out the entire list of procedural actions for which the administrative detention of the person was carried out.
As an example, you can specify such actions as drawing up a protocol on an administrative offense, establishing the identity of a detainee, conducting a personal search of the detainee and his belongings, or his vehicle, etc.
When applying administrative detention, it is important to take into account the start time of the three-hour period of this measure.
In the previous version of the Administrative Code, the term of administrative detention was calculated from the moment the person was taken to the relevant authorities conducting administrative proceedings.
In the current Administrative Code, the legislator sets an earlier start of the period of detention and links the duration of the period with the actual detention of the person, i.e. the moment of restriction of his freedom of movement, even if at the time of detention he does not have any procedural status (is not a participant in administrative proceedings). This was a consequence of the requirements of the Constitution and the regulatory resolution of the Constitutional Council of the Republic of Kazakhstan dated April 13, 2012 No. 2 "On the official interpretation of the norms of the Constitution of the Republic of Kazakhstan on the calculation of constitutional terms."
For example, if a person is detained in a public place for committing an administrative offense and is to be taken to an authorized body, then the period of his detention is calculated from the beginning of the actual detention at the place of the offense, when he was informed about it by an authorized official and a detention protocol was drawn up, and not from the moment the person was taken to the appropriate body.
Part 2. In addition to the general period of detention in administrative law, there is also a so-called special period of administrative detention, equal to 48 hours. Part 2 of the commented article defines a list of persons who can be detained for committing an administrative offense for up to 48 hours.
In addition, any person against whom proceedings are underway on an administrative offense may also be detained for up to 48 hours if the Administrative Code provides for a sanction in the form of administrative arrest for the offense committed. It should be borne in mind that the case of an administrative offense is considered no later than forty-eight hours after the arrest of the person who committed the administrative offense.
The term of administrative detention is included in the term of administrative arrest. For example, if a person was detained for committing an administrative offense for a period of 48 hours before the court considered the case, and subsequently the court imposed an administrative penalty on this person in the form of arrest for a period of five days, then in fact the offender will be held in custody for 3 days, since he has already served 2 days of arrest, being detained in an administrative I'm fine.
The term of administrative detention in relation to a person who is in a state of intoxication begins to be calculated from the time of his sobering up, certified by a medical professional.
Part 3. In accordance with the Law of the Republic of Kazakhstan dated December 28, 2017 "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses", a person against whom proceedings have been initiated on an administrative offense involving administrative arrest as one of the measures of administrative punishment may be subjected to administrative detention pending consideration of the administrative offense case., but not more than 24 hours.
In accordance with the norms of the Administrative Code, a protocol on an administrative offense, the responsibility for which may entail the application of administrative arrest, is sent to the judge immediately after it is drawn up (Part 2 of Article 808 of the Administrative Code).
At the same time, such cases must be considered on the day of receipt of the protocol, and in respect of a person subjected to administrative detention, no later than forty-eight hours from the moment of his detention (Part 3 of art. 817 of the Administrative Code).
At the same time, the presence of the person being held administratively liable is mandatory during the consideration of the case (Part 3, art. 744 of the Administrative Code).
However, the fulfillment of these requirements in practice was not possible at night or in the evening (after 7 p.m.), as well as on holidays and weekends.
At the same time, the application of a measure to ensure the proceedings in the form of administrative detention did not allow achieving the goals provided for in Part 1 of Article 785 of the Administrative Code (establishing the identity of a suspect in his commission, drawing up a protocol on an administrative offense when it is impossible to draw it up at the place of the commission of an administrative offense, ensuring timely and correct consideration of the case and the execution of the resolution adopted in the case), since the term of administrative detention previously lasted no more than 3 hours.
In this regard, the legislator increased the term of administrative detention to 24 hours, but only for those offenses where administrative arrest is provided as one of the measures of administrative punishment.
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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