Comment to Article 862. Persons entitled to compensation for damage caused as a result of illegal actions of a court, body (official) authorized to consider cases of administrative offenses of the Code of the Republic of Kazakhstan On Administrative Offenses  

     1. The damage caused to a person as a result of the illegal application of measures to ensure the proceedings in the case is reimbursed from the republican budget in full, regardless of the fault of the judge, the body (official) authorized to consider cases of administrative offenses.

     2. The following persons have the right to compensation for damage caused as a result of illegal actions of a judge, body (official) authorized to consider cases of administrative offenses:

     1) the persons specified in the first part of Article 745 of this Code;

     2) persons in respect of whom the proceedings should not have been initiated, but were subject to termination on the grounds provided for in subparagraphs 1) – 7) and 11) of the first part of Article 741 of this Code, if the proceedings were initiated despite the existence of circumstances precluding proceedings on an administrative offense, or It has not been discontinued since they were identified.

     3. In the event of the death of an individual, the right to compensation for damage in accordance with the established procedure passes to his heirs.

     4. The damage is not subject to compensation to a person if it is proved that during the proceedings in the case by voluntary self-incrimination he prevented the establishment of the truth and thereby contributed to the onset of the consequences specified in the first part of this article.

     5. The rules of this article, in the absence of the circumstances specified in subparagraph 2) of part two of this article, shall not apply to cases where administrative penalties and other administrative and legal measures imposed on a person have been lifted or changed due to the expiration of the statute of limitations, the adoption of a law eliminating administrative liability or mitigating administrative penalties.

     Part 1. In this article, the legislator provides a list of cases in which compensation for harm occurs and defines the categories of persons entitled to compensation for such harm.  

     The concept of harm is more typical for civil law. Harm in civil law is the diminution or destruction of a subjective civil right or good. Harm may be caused to a person or property. However, the current Civil Code does not contain a general definition of the concepts of "harm", "damage" and "losses". It should be noted that in the dictionary the terms "harm", "loss", "damage" are treated as equivalent concepts, but their legal meaning is different. Harm or damage is most often considered synonymous. The concepts of "harm" and "loss" do not coincide. Harm is a broader concept, divided into property and non-property.

     Property damage is the material (economic) consequences of an offense that have a cost form. Monetary assessment of property damage is called losses.

     In this case, it is stipulated that this is harm caused precisely by measures to ensure proceedings in cases of administrative offenses as a result of illegal actions of the court or an official. This may be a lost profit, due to the prohibition of the operation of the vehicle by the driver or the prohibition of the activities of a legal entity, etc.

     Article 917 of the Civil Code of the Republic of Kazakhstan stipulates that damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full. Since judges and officials are authorized to consider cases of administrative offenses on behalf of the state, in case of their guilt or mistakes, compensation for harm should be provided from the republican budget.

     Part 2 of the commented article lists the categories of persons who are entitled to compensation for damage caused as a result of illegal actions of a judge, body (official) authorized to consider cases of administrative offenses.:

     1) Victim (Part 1 of Article 745 of the Administrative Code) - an individual or a legal entity to whom an administrative offense has caused physical, property or moral harm.

     2) Persons in respect of whom the case should not have been initiated, but what was initiated was subject to termination on the rehabilitative grounds specified in subparagraphs 1-7), 11) of Part 1 of Article 741 of the Administrative Code, in cases where the judge, the authorized person was aware of the circumstances precluding the proceedings, but it was not terminated, and the person against whom the proceedings were initiated suffered moral or material harm.

     Part 3 of Article 862 of the Administrative Code provides for the right of heirs to compensation for harm in the event of a citizen's death. As a general rule, according to the norms of Chapter 59 of the Civil Code, the right to compensation for harm passes depending on the line of heirs according to the law (first priority, second, etc.).

     1038 of the Civil Code, inheritance is the transfer of the property of a deceased citizen (testator) to another person (persons) - the heir (heirs). It should also be noted that according to the rule of art. 1040 of the Civil Code, the inheritance includes property belonging to the testator, as well as rights and obligations, the existence of which does not cease with his death. That is, the right to compensation for harm is inherited according to the rules of civil law relations.

     Part 4 stipulates the conditions under which the harm is not reimbursed to the person. Such a condition is voluntary self-incrimination, which prevents the establishment of the truth. Self-incrimination can play a fatal role in the fate of suspects, accused and defendants, placing a heavy burden on justice, calling into question the legality and fairness of the court decision. Self-incrimination can be voluntary and forced, the difference between them is that the motives for voluntary self-incrimination are personal, internal in nature, while the reasons for forced self-incrimination are external effects on the accused (for example, the use of physical or mental violence against the accused). In the resolution of the Plenum of the Supreme Court of the USSR, self-incrimination was defined as "knowingly false testimony of a suspect, accused, or defendant, given in order to convince the preliminary investigation authorities and the court that it was he who committed a crime that he did not actually commit." Voluntary self-incrimination by a person who has not committed an administrative offense, with the onset of negative consequences for him of the application of measures to ensure production, is regarded as a conscious decision of this person. Accordingly, the harm caused to him cannot and should not be compensated.  

     However, courts or officials need to find out on a case-by-case basis whether the person's self-incrimination was voluntary and whether it hindered the establishment of the truth in the case. In cases where the case establishes the use of illegal methods of administrative proceedings or other violations of the law (deception, blackmail, etc.), which could lead to self-incrimination, harm caused to a person in connection with illegal administrative liability or other illegal actions of authorized bodies, must be satisfied.

     In accordance with part 5 of this article, compensation for damage is not carried out in cases where the circumstances specified in paragraph 2) of Part 2 of art. 862 were absent, and in case of cancellation or modification of an administrative penalty and measures to ensure proceedings in an administrative offense case, due to the expiration of the statute of limitations for the adoption of a law eliminating administrative liability or mitigating an administrative penalty, a claim for damages is subject to satisfaction only for the time during which, if the person agrees to terminate the case or amend An administrative penalty on these grounds was not promptly decided by a judge or an official.

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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