Comment to article 879. Diplomatic immunity of premises and documents  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The residence of the head of the diplomatic mission, the premises occupied by the diplomatic mission, the living quarters of members of the diplomatic staff and their family members, their property and means of transportation are inviolable. Access to these premises, their inspection, as well as the inspection of vehicles may be carried out only with the consent of the head of the diplomatic mission or a person replacing him.

     2. On the basis of reciprocity, the immunity provided for in the first part of this article applies to living quarters occupied by employees of the service staff of the diplomatic mission and their family members who live with them, if these employees and their family members are not citizens of the Republic of Kazakhstan.

     3. The premises occupied by the consulate and the residence of the head of the Consulate shall enjoy immunity on the basis of reciprocity. Access to and inspection of these premises may take place only at the request or with the consent of the head of the consulate or diplomatic mission of the relevant foreign State.

     4. Archives, official correspondence and other documents of diplomatic missions and consulates are inviolable. They may not be inspected or seized without the consent of the head of the diplomatic mission or consulate. Diplomatic mail cannot be opened or detained.

     5. The consent of the head of a diplomatic mission or consulate to access the premises specified in parts one, two and three of this Article, to inspect them, as well as to inspect and seize documents specified in part four of this Article, is requested by the prosecutor through the Ministry of Foreign Affairs of the Republic of Kazakhstan.

     6. In case of receiving a request or consent of the head of the diplomatic mission or consulate for access to the premises, the inspection in them, as well as the inspection and seizure of documents specified in part four of this Article, shall be carried out in the presence of the prosecutor and a representative of the Ministry of Foreign Affairs of the Republic of Kazakhstan.

     Part 1. The main immunity of a diplomatic mission, enshrined in paragraph 1 of Article 22 of the Vienna Convention on Diplomatic Relations of 1961, is the inviolability of premises.

     The concept of "inviolability" in this context means, on the one hand, that the receiving State is obliged to ensure that its officials refrain from carrying out a number of specific actions, namely:

     - from entering the premises of the representative office without the consent of its head;

     - from conducting a search, arrest, requisition and enforcement actions;

     - from actions that damage the representative office, violate its peace of mind or offend the dignity of its employees.

     On the other hand, the receiving State is obliged to ensure the implementation of the necessary protection of the mission from the encroachments of private individuals – from any intrusion, damage, disturbance of peace or insult to the dignity of the mission.

     The prohibition to enter the premises of a representative office without the consent of its head is absolute. There are no exceptions to this rule, and it must be respected even in the event of a fire in the diplomatic mission or the capture of the latter by terrorists.

     Own means of transportation are an important factor in ensuring the normal functioning of a diplomatic mission. Diplomatic means of transportation are any means of transportation (usually automobile, air, and water) that are owned, rented, or provided for regular use by diplomatic missions, mission staff, and their family members.  

     In international law and diplomatic practice, no distinction is made between vehicles owned directly by the mission and vehicles owned personally by the staff of the mission; both are considered diplomatic vehicles. A distinctive feature of a diplomatic vehicle is a special license plate issued by the relevant authorities of the receiving State. It should be remembered that according to the general rules of these conventions, there is a special attitude towards the transport of diplomatic missions, the internal space of which enjoys the right of extraterritoriality. This means that the vehicle is equivalent in its characteristics to the premises occupied by the diplomatic mission.

     In all cases of waiver of diplomatic immunity, it is required that it be documented by the head of the diplomatic mission. And in emergency cases, video recording of the expression of such consent.

     Part 2. The immunities provided for in part 1 of the commented article, on the basis of reciprocity, extend to a limited extent to employees of the service staff of the diplomatic mission and their family members (they apply only to residential premises). Immunities are granted provided that these persons are not citizens of the Republic of Kazakhstan. It is also necessary for family members to live together with the staff of the diplomatic mission's staff.  

     Part 3. The Vienna Convention on Consular Relations of 1963 contains a norm defining the status of consular premises – "Consular premises are inviolable. The authorities of the receiving State may not enter that part of the consular premises which is used exclusively for the work of the consular institution, except with the consent of the head of the consular institution, the person appointed by him or the head of the diplomatic mission of the sending State. Nevertheless, the consent of the head of the consular institution may be required in the event of a fire or other natural disaster requiring urgent protective measures."  

     The principle of reciprocity in ensuring the exercise of this immunity is not directly mentioned in the Convention, therefore, the principle of reciprocity, which is generally very common in international practice, should be considered the basis for such a formulation of the status of consular premises and the residence of the head of the consulate in the commented article. At the same time, the receiving State has a special obligation to take all appropriate measures to prevent any disturbance of the peace of the consular institution or insult to its dignity, as well as to protect the consular premises from any kind of intrusion or damage.  

     In all cases of waiver of diplomatic immunity, it is required that it be documented by the head of the diplomatic mission. And in emergency cases, in which such registration is impossible, video recording of the expression of such consent.

     Part 4. Article 24 of the Vienna Convention on Diplomatic Relations of 1961 establishes that the archives and documents of the mission are inviolable at any time and regardless of their location. Similarly, the status of consular archives and consular documentation is enshrined in international law.

     The inviolability of archives and documents is normally ensured by virtue of the inviolability of the premises of the diplomatic mission and the inviolability of diplomatic mail. The inviolability of archives and documents remains in cases where, for any reason, they have ceased to be at the disposal of the mission at any time, even after the severance of diplomatic relations. Archives usually include any sources of information contained on paper or magnetic media (documents, correspondence, registers of a representative office together with ciphers, codes, card files), as well as any furnishings designed to ensure their safety or storage.  

     The official purpose of the diplomatic post is interstate correspondence and providing diplomatic missions abroad with communication with their domestic foreign relations bodies (the head of state, government, etc.). The secret of the contents of the diplomatic cargo is strictly guarded: according to international standards, it is inviolable even during military operations. In accordance with the Vienna Convention on Diplomatic Relations of 1961, diplomatic mail is not subject to either opening or detention, both in the host State and on the territory of third countries. These immunities are granted if two basic requirements are met.: 1) all items that make up diplomatic mail must have visible external signs indicating their nature; 2) diplomatic mail may contain only diplomatic documents and items intended for official use.

     In accordance with the Vienna Convention on Diplomatic Relations of 1961, the exemption of diplomatic mail from opening and detention is absolute; the Convention does not provide for any exceptions.

     The consular bag is not subject to opening or detention. However, in cases where the competent authorities of the receiving State have serious grounds to believe that the bag contains something other than official correspondence, documents or items intended exclusively for official use, they may require that the bag be opened in their presence by an authorized employee of the sending State. In the event that the authorities of the represented State refuse to comply with this requirement, the valise is returned to the place of departure.  

     All items that make up the consular bag must have visible external signs indicating their nature, and may contain only documents or items intended for official use.

Part 5. It provides for the procedure for possible but exceptional restrictions on diplomatic immunities by obtaining the consent of the head of the diplomatic mission or consulate to access the premises of the residence of the head of the diplomatic mission, the premises occupied by the diplomatic mission, the living quarters of members of the diplomatic staff and their family members, the residence of the head of the consular institution and the official consular premises, the living quarters occupied by staff service personnel of the diplomatic mission and their family members, as well as the implementation of coercive actions there.  

     Part 6. Proceeds from the fact that consent to access the premises and (or) to carry out the coercive actions specified in Part 5 of the commented article has been received, or the relevant request has been made by the head of the diplomatic or consular mission himself. The prosecutor and a representative of the Ministry of Foreign Affairs of the Republic of Kazakhstan must be present when carrying out the coercive actions mentioned in the regulation.  

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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