Comment to article 864. Recognition of the right to compensation for harm The Code of the Republic of Kazakhstan on Administrative Offences
Having made a decision on the full or partial rehabilitation of a person, a judge or an authority (official) authorized to consider cases of administrative offenses is obliged to recognize his right to compensation for harm. A copy of the resolution on the termination of the case, on the cancellation or amendment of other illegal decisions is handed over or sent to the person concerned by mail. At the same time, a notice is sent to him explaining the procedure for compensation for damage. In the absence of information about the place of residence of the heirs, relatives or dependents of the deceased person entitled to compensation for damage, the notification is sent to them no later than five days from the date of their application to the body (official) authorized to consider cases of administrative offenses.
The rules of this article regulate the procedure for recognizing the right to compensation for damage caused by illegal actions of a court, body (official). Although there is no precise and complete definition of rehabilitation in the Administrative Code, and in Chapter 48 there is no distinction between full and partial rehabilitation, however, such definitions are used in the text of this article. Within the meaning of Article 861 of the Administrative Code, rehabilitation is the recognition of the innocence of a person against whom proceedings have been initiated on an administrative offense on the grounds specified in subparagraphs 1-7), 11) of Part 2 of Article 741 of the Administrative Code.
Full rehabilitation in the criminal process is understood as the passing of an acquittal due to the absence of the composition, the event of a criminal offense, etc. Partial rehabilitation is understood as the adoption of a decision by a court or an authorized body to cancel or amend the initial procedural decision in the direction of reducing the volume of charges. It follows from this that a court, body (official), when issuing a decision to terminate an administrative offense case on rehabilitative grounds, is obliged to recognize this person's right to compensation for property damage and (or) moral damage, if any.
The recognition of a citizen's right to compensation for harm lies in the fact that the specified body, having made a decision on rehabilitation, is obliged to inform the citizen of his rights. This is expressed in the fact that the body (official) specified in Article 864 of the Administrative Code must be handed over or mailed a copy of the decision to terminate the case, to cancel or amend other illegal decisions to a person entitled to compensation for harm, or to an interested person.
At the same time, a notification is sent to the citizen explaining the procedure for compensation for damage. The notification is a list of all the rights that a citizen has to compensation for harm, according to Articles 861-869 of the Administrative Code. Such a notification should resemble a protocol for familiarizing the suspect, the accused, and the victim with their rights existing in the criminal process.
The procedure for recognizing the right to compensation for harm includes the following steps::
1) making a decision on full or partial rehabilitation of a person;
2) recognition of the right to compensation for harm for the person in respect of whom the decision on rehabilitation has been made;
3) handing over a copy of the resolution on the termination of the case, on the cancellation or amendment of other illegal decisions to the person concerned;
4) sending notices explaining the procedure for compensation of harm to the person concerned.
It seems correct, in our opinion, to recognize the right to compensation for harm in the following logical order:
a) according to Part 1 of Article 866 of the Administrative Code, the body (official) who made the decision to rehabilitate a person is obliged to bring him an official apology for the harm caused. It is more appropriate to make such an official apology in writing, on an official or special form.
b) at the same time as making an official apology, draw up a notice explaining the procedure for compensation for harm.
c) the documents drawn up, namely: an official apology form for the damage caused and a notice explaining the procedure for compensation for damage, together with a copy of the decision to terminate the case or to cancel or amend other illegal decisions, should be handed over personally to the person entitled to compensation for damage, or sent by mail.
When handing over such documents to a person personally, it is necessary, of course, to make the necessary note in the case of an administrative offense about the acceptance of the notification.
When sending by mail (which is the most preferable and most expedient in the work of a court or law enforcement agency), it is also necessary to make a note on the registration of such documents for sending to the addressee and recording the receipt of these documents by the addressee. You can send documents by registered mail with a notification of receipt, in the same way as notifications (notices) of Article 743 of the Administrative Code are sent about the place and time of the case, since in accordance with Part 3 of art. According to Article 18 of the Constitution of the Republic of Kazakhstan, a person and a citizen have the right to get acquainted with documents, decisions and sources of information affecting their rights and interests, and government agencies and officials must provide such an opportunity.
All expenses for sending these documents must be carried out at the expense of funds at the disposal of the body (official) who made the decision on rehabilitation. The necessary amounts for this should be allocated from the state budget of the Republic of Kazakhstan or from the local budget as unforeseen expenses.
A similar procedure is provided for the rehabilitation of a citizen in criminal proceedings. The Law of the Republic of Kazakhstan "On the Budget" annually assigns a special position, according to which funds are allocated for unforeseen expenses, in particular, for compensation for damage caused as a result of investigative and judicial errors.
Article 864 of the Administrative Code does not specify the time period in which the relevant documents on rehabilitation and compensation for harm should be sent to the citizen. It seems correct that such a period should be minimal in order to avoid red tape and maximize the protection of the legitimate rights and interests of citizens entitled to compensation for harm.
In the absence of information about the place of residence of the heirs, relatives or dependents of the deceased person entitled to compensation for damage, the notification is sent to them no later than five days from the date of their application to the body (official) authorized to consider cases of administrative offenses.
This part of Article 864 of the Administrative Code has a sufficient element of formalism, since actions on the part of the body (official) for rehabilitation and compensation for harm will take place only when such an appeal is addressed to these bodies.
In this case, it should be noted that the body (official) has no obligation to rehabilitate and compensate for harm, since the law categorically does not prescribe the location of relatives or dependents of the deceased.
It is logical to conclude that even if such a person has relatives or dependents, in most cases they will not find out about the fact of rehabilitation, since in such cases the law is not obliged to inform them in any accessible way. This moment is a significant gap in the realization of the right to compensation for harm by relatives or dependents of a deceased citizen.
In order to exclude the repeated application of each heir (close relative, spouse) with a claim for recognition of the right to compensation to the courts, state bodies need to resolve the issue of the participation of all close relatives in the case as third parties on the plaintiff's side and explain to them the right to claim damages at the stage of preparing the case for compensation for damage. an independent claim in accordance with the Civil Procedure Code of the Republic of Kazakhstan.
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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