Comment to article 861. Rehabilitation by recognizing the innocence of a person brought to administrative responsibility of the Code of the Republic of Kazakhstan on Administrative Offenses  

     1. A person against whom a decision has been issued by a judge, body (official) authorized to consider cases of administrative offenses, to terminate the case on the grounds provided for in subparagraphs 1) -7) and 11) of the first part of Article 741 of this Code, shall be considered innocent and may not be subject to any restrictions in rights. and freedoms guaranteed by the Constitution and laws of the Republic of Kazakhstan.

     2. A judge, body (official) authorized to consider cases of administrative offenses shall be obliged to take all measures provided for by law to recognize the person indicated in part one of this article as innocent and restore personal non-property and property rights violated as a result of illegal actions of a judge, body (official) authorized to consider cases of administrative offenses. administrative offenses.

     Part 1. When considering cases of administrative offenses, a judge or official must make, in accordance with art. 821 of the Administrative Code, one of the following decisions: imposition of an administrative penalty or termination of proceedings in the case.  

     Termination of proceedings in cases of administrative offenses is possible on rehabilitating and non-rehabilitating grounds. A retrospective look at the ways of formation and development of the institute of rehabilitation allows us to conclude that the concept of "rehabilitated" means a person who was not involved in the commission of an unlawful act, but due to fatal circumstances (intent or negligence of an official, or a mistake) was persecuted by the state and suffered hardships and sufferings completely in vain and innocently. Hence the need for a public apology, the return of all that was lost, compensation for the damage caused, and restoration of labor, pension, housing, and other rights.

     Rehabilitation according to the social meaning of its content should entail the complete and undoubted restoration of the wrongly accused's reputation, restoration of his former rights, and compensation for material damage.

     In cases of termination of the proceedings on the grounds provided for in the sub-paragraphs 1), 2), 3), 4), 5), 6), 7), 11) Part 1 of Article 741, the person against whom the proceedings were initiated is considered innocent. These include:

     1) Part 1 of Article 741 of the Administrative Code — absence of an administrative offense event. In this case, the situation occurs when, according to an application received or a report about an allegedly committed administrative offense, authorized officials have not collected sufficient data indicating its actual commission, since they are absent in reality, there are no obvious material traces in nature.;

     2) part 1 of Article 741 of the Administrative Code — absence of an administrative offense. With regard to this subparagraph, the legislator himself officially explains in Part 2 of Article 741 of the Code that, on this basis, proceedings on an administrative offense are terminated in cases where harm is lawful or the act was committed under circumstances that, in accordance with Chapter 5 (Circumstances excluding administrative liability) of the Administrative Code exclude administrative liability..

     Consequently, the case of an administrative offense is terminated due to the absence of the composition of an administrative offense (in addition to the general established requirements for this ground, in particular, the mandatory presence of the subject, the subjective side, the object, the objective side of the administrative offense) also in the following cases::

     a) necessary defense (Article 35 of the Administrative Code);

     b)      detention of a person who committed an encroachment (Article 36 of the Administrative Code);

     c)      of extreme necessity (Article 37 of the Administrative Code);

     d)      physical or mental coercion (Article 38 of the Administrative Code);

     e)      execution of an order or instruction (Article 39 of the Administrative Code);

     3) Part 1 of Article 741 of the Administrative Code — repeal of the law or its individual provisions establishing administrative responsibility. In this case, we mean the existence of an adopted legislative act that excludes punishability for certain types of actions as a whole, or excludes certain of its provisions.;

     4) part 1 of Article 741 of the Administrative Code — if the law or its individual provisions establishing administrative responsibility, or other normative act to be applied in this case of an administrative offense, on which the qualification of the act as an administrative offense depends, is recognized by the Constitutional Council of the Republic of Kazakhstan as unconstitutional.

     In this case, if the Constitutional Council of the Republic of Kazakhstan recognizes a law or certain of its provisions as unconstitutional, then a resolution of the Constitutional Council is issued, binding on all state bodies.;

     5) part 1 of Article 741 of the Administrative Code — expiration of the limitation period for bringing to administrative responsibility. In this case, in accordance with Article 62 of the Administrative Code (Exemption from administrative liability due to the expiration of the statute of limitations), upon general demand, a person is not subject to administrative liability after two months from the date of the commission of an administrative offense, and for committing an administrative offense in the field of the environment — after one year from the date of its commission., except as provided by this Code.

     Meanwhile, in some cases, depending on the type of administrative offense, the statute of limitations may exceed two months. For example, in accordance with Part 2 of Article 62 of the Administrative Code — after 5 years from the date of its commission (Administrative corruption offense in the field of taxation and others).

     The remaining provisions legalizing the limitation periods for bringing persons to administrative responsibility, as well as the suspension and interruption of these periods, are set out in detail in parts 3-8 and a note to art. 62 of the Administrative Code.;

     6) Part 1 of Article 741 of the Administrative Code - the presence of a decision of a judge, body (official) on the imposition of an administrative penalty or an unturned decision on the termination of an administrative offense case, as well as the presence of a decision on the same fact regarding the recognition of a person as a suspect.;

     7) Part 1 of Article 741 of the Administrative Code - death of an individual, liquidation of a legal entity in respect of which proceedings are underway. In this case, since there is no subject of an administrative offense, this is a circumstance that precludes proceedings on an administrative offense.

     It should be noted that the new Administrative Code has received its own legislative consolidation and development, along with the responsibility of individuals. liability of legal entities (Articles 33, 34 of the Administrative Code);

     11) Part 1 of Article 741 of the Administrative Code — a person brought to administrative responsibility is recognized in accordance with the procedure established by law as a victim in a criminal case of a crime related to human trafficking. In this case, if a person formally falls under the administrative legislation, but is a victim in a criminal case of a crime related to human trafficking, then this circumstance excludes proceedings on an administrative offense.

     Part 2 of the commented article obliges the judge, the official authorized to consider cases of administrative offenses, to restore the property and non-property rights of the person in respect of whom the proceedings are conducted.  

     Property damage includes compensation for: wages, pensions, benefits, other funds and income that they have lost; property unlawfully confiscated or converted to state revenue on the basis of a verdict or other court decision; fines levied in pursuance of an unlawful court verdict; court costs and other amounts paid by a person in connection with illegal actions; amounts paid by a person for providing legal assistance; other expenses. Also, persons who are entitled to full compensation for property damage caused as a result of illegal actions have the right to be restored to their labor, pension, housing and other rights, as well as to eliminate the consequences of moral harm.

     During the proceedings on administrative offenses, coercive measures are applied that restrict human rights, including freedom of movement. As a result, in some cases, it is impossible to avoid the facts of humiliation of a person's human dignity, as well as harming the business reputation of a legal entity. An example of this is the application of measures to ensure proceedings in cases of administrative offenses, such as unjustified or illegal delivery, administrative detention, prohibition of activity, prohibition of operation of a vehicle or small vessel, which, of course, is a violation of constitutional guarantees.

     If these violations are detected, the judge or official must terminate the case of an administrative offense, in accordance with Article 741 of the Administrative Code, declaring the person innocent, and also cancel the application of security measures in this case so that the person against whom proceedings were initiated does not suffer negative consequences from their application.

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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