Comment to article 877. Inspection, administrative detention and bringing of persons enjoying diplomatic immunity of the Code of the Republic of Kazakhstan on Administrative Offenses
1. The persons listed in subitems 1), 4) – 7) of the first part of Article 876 of this Code, as well as other persons, in accordance with an international treaty of the Republic of Kazakhstan, 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.
2. If a foreign State grants a specific waiver of immunity from administrative liability of the persons referred to in paragraphs 1), 4) – 7) of the first part of Article 876, the proceedings in the case shall be conducted in accordance with the general procedure.
Part 1. Personal inviolability is one of the basic immunities of diplomatic personnel, as well as members of other foreign bodies of foreign relations. They are not subject to arrest or detention in any form. The receiving State is obliged to treat them with due respect and take all appropriate measures to prevent any encroachments on their personality, freedom or dignity. The status of family members of diplomatic staff is determined in a similar way, provided that these persons not only live with them, but also are not citizens of the host country.
In accordance with paragraph 10 Rules for Registration of a Diplomatic mission, an International organization and (or) its representative office, a consular institution and accreditation of heads, members of Staff of Diplomatic missions, International Organizations and (or) their Representative Offices, employees of Consular Institutions in the Republic of Kazakhstan, approved by Order of the Minister of Foreign Affairs of the Republic of Kazakhstan dated September 27, 2017 No. 11-1-2/442, chapter, members of the staff of diplomatic missions, international organizations and (or) their representative offices, employees of consular institutions, military, marine or aviation attaches (hereinafter referred to as mission staff) and family members of mission staff receive an accreditation certificate, which contains the following information: first name, last name, patronymic (if any), position of the diplomatic mission officer, name of the diplomatic mission and the category of the accreditation certificate (hereinafter referred to as certificates) corresponding to their status.
Cohabiting with the staff of the representative offices, to family members and the issuance of certificates to them is carried out on the basis of the principle of reciprocity with the sending / represented State.
The following persons are registered as a family member of an employee of the representative office:
1) spouse;
2) unmarried children:
under the age of 18;
under the age of 21, studying in higher/secondary specialized educational institutions of the Republic of Kazakhstan;
3) parents and dependent children under the age of 25, based on the principle of reciprocity with the sending/represented State (without granting immunities and privileges).
Based on paragraph 14 of the said order, depending on the status of the representative office employee, his family members and, accordingly, the scope of their privileges and immunities defined in international treaties ratified by the Republic of Kazakhstan, certificates of the series "D", "C", "HC", "T", "S" and "M" are issued.".
If a foreigner has an accreditation certificate confirming his status as a person enjoying diplomatic immunity, it is prohibited to apply to him measures to ensure proceedings on an administrative offense provided for in Articles 787, 790, 791 of the Administrative Code.
Part 2. The norm has a content similar to Part 2 of art. 876 of the Administrative Code. At the same time, the decision on the application of measures to ensure the proceedings in respect of diplomatic personnel and their family members is of independent importance when deciding on the waiver of immunity by a foreign State. In other words, this issue should be positioned and resolved in diplomatic relations separately from the issue of the possibility of bringing these persons to administrative responsibility as such.
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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