Commentary on Article 772. Appointment and conduct of an examination of the Code of administrative offenses of the Republic of Kazakhstan
1.the expert examination shall be appointed by the judge, body (official) in which the proceedings on an administrative offense are being conducted, if the circumstances relevant to the case may be obtained as a result of the study of the materials of the case conducted by the expert on the basis of special scientific knowledge.
2.the presence in the case of acts of inspections, inspections, conclusions of departmental inspections, as well as official documents drawn up based on the results of research conducted by specialists in the course of procedural actions, does not exclude the possibility of conducting an expert examination on these issues.
3.the judge, body (official) in which the proceedings on an administrative offense are being conducted may appoint an examination at the request of the parties or on their own initiative.
4.conducting an expert examination may be entrusted to employees of expert bodies or other persons meeting the requirements of Article 757 of this code. The examination may be entrusted to the person represented by the parties. The requirement of a judge, an official to call a person who is entrusted with conducting an examination is mandatory for the head of the organization in which this person works.
5. the judge, body (official), who is in the proceedings on an administrative offense, issues a ruling on the appointment of an expert examination, which indicates::
1) last name, full name of the judge, official, name of the Court, body;
2) time, place of appointment of the examination;
3) grounds for the appointment of an examination;
4) last name, first name, patronymic (if any) of the expert or name of the expert body to which it should be conducted;
5) questions asked to the expert;
6) list of materials submitted to the expert.
The ruling must also contain notes on explaining to the expert his rights and obligations and warning about his responsibility for giving a knowingly false opinion.
6.for conducting complex expert research, a commission examination conducted by at least two experts of the same specialty may be appointed.
7.if it is necessary to conduct research on the basis of various fields of knowledge to determine the circumstances relevant to the case, a comprehensive examination conducted by experts of various specialties within its competence is appointed.
8. before sending a ruling on the appointment of an expert examination for execution, the judge or body (official) who appointed the forensic examination is obliged to familiarize the person and the victim in respect of whom the case on an administrative offense is being filed, explain to them the rights:
1) to declare an objection to the expert or a request for exclusion from the examination by the forensic expert body;
2) Apply for the appointment of persons specified by them or employees of specific forensic examination bodies as experts, as well as for the examination by the expert commission;
3) submit to the expert a request to ask additional questions or clarify the issues raised;
4) participate in the examination with the permission of the judge or the body (official) that appointed the forensic examination, give explanations to the expert, except in cases that interfere with the examination;
5) the expert's opinion or conclusion may be given .after receiving a notification about the accident, the judge or body (official) who appointed the forensic examination has the right to submit their comments, submit applications for the appointment of additional or re-examination, the appointment of new examinations.
Examination of victims is carried out only with their written consent. If these persons have not reached the age of majority or have been recognized by the court as incapacitated, written consent to the examination is given by their legal representatives.
9.based on the results of the examination, the expert (s) submits on his own behalf an opinion drawn up in accordance with the requirements of Article 773 of this code and sends it to the judge, body (official) appointed by the examination.
10.in case of insufficient clarity or completeness of the conclusion, as well as if there is a need to resolve additional issues related to the previous study, an additional examination may be appointed, the production of which is entrusted to one or another expert (s).
11.if the expert's opinion is not sufficiently substantiated or his conclusions raise doubts, or if the procedural norms on the appointment and conduct of the expert examination are seriously violated, a re-examination may be appointed to study these objects and resolve these issues, the production of which is entrusted to a commission of experts, which is not included in the expert (s) who conducted the previous examination.
12.the decision of a judge, body (official) on the appointment of an additional and repeated examination must be reasoned. When passing additional and repeated examinations, the expert (s) must be provided with conclusions drawn up based on the results of previous examinations.
13.if an expert before conducting a study makes sure that the questions posed to him are beyond his special knowledge, or that the materials presented to him are unsuitable or insufficient for giving an opinion and cannot be filled in, or the state of Science and expert practice does not allow him to answer the questions asked, he draws up a reasoned notification of the possible possibility of giving an opinion and sends it to a judge, body (official).
Part 1. In accordance with Article 1 of the law of the Republic of Kazakhstan dated February 10, 2017" on forensic activity", forensic examination is a study of the materials of a criminal, civil case or case on an administrative offense, carried out on the basis of special scientific knowledge in order to identify factual data relevant for its resolution.
Special scientific knowledge is a branch of special knowledge, the content of which consists of scientific knowledge implemented in Forensic Research Methods.
In accordance with Part 1 of the commented article, the purpose of the appointment of an expert examination is to establish circumstances significant for the case, which may be obtained as a result of the study of the case materials conducted by the expert on the basis of special scientific knowledge.
Thus, examination in an administrative process means a procedural action related to the study by experts on a scientific basis of physical evidence submitted by a Court, body (official), samples, documents related to the subject of forensic examination, information contained in the materials of the case in which the forensic examination is carried out, and other objects in order to establish the circumstances. important for the case.
Currently, about 30 examinations are conducted in 58 expert specialties in the country. "This is stated in the order of the Minister of Justice of the Republic of Kazakhstan dated March 27, 2017 No. 306 ""on approval of the list of types of forensic examinations conducted by forensic expert bodies and expert specialties whose qualifications are assigned by the Ministry of Justice of the Republic of Kazakhstan""."
Part 2. The presence in the case of acts of inspections, inspections, conclusions of departmental inspections, as well as official documents drawn up based on the results of research conducted by specialists in the course of procedural actions, does not exclude the possibility of conducting an examination on the same issues, since their conclusions are not binding on the Court, body (official) Such conclusions are by nature the conclusions of specialists and differ in terms of the power of reasoning. However, it should be borne in mind that, despite the fact that the courts have prioritized expertise as the main method of interpreting specific data through special knowledge, neither they nor others have pre-reasoned power. Official documents drawn up on the basis of inspections, inspections and conclusions of departmental inspections, as well as the results of research carried out by specialists, are mainly documents of the official activities of authorized bodies.
Part 3. The examination is appointed by the judge, body (official) in which the proceedings on an administrative offense are being conducted. At the same time, the decision on the appointment of an examination is made by the judge on his own initiative or at the request of the parties.
The right to apply with a request for the appointment of an examination includes: the person on whom the proceedings are being conducted in the case of an administrative offense (article 744 of the Administrative Code), the victim (article 745 of the Administrative Code), legal representatives of an individual (article 746 of the Administrative Code), representatives of a legal entity (article 747 of the Administrative Code), a defender (article 748 of the Administrative Code), a representative of the victim (article 753 of the Administrative Code).
The procedure for filing an application by the parties to the process is regulated by Article 740 of the Administrative Code. The application is submitted in writing or in the form of an electronic document certified by an electronic digital signature and must be considered immediately. In cases where the application cannot be considered immediately, the decision on it must be made no later than three days from the moment of submission of the application.
The amount and procedure for reimbursement of expenses related to the conduct of a forensic examination are determined by procedural legislation and by-laws.
The amounts spent on conducting an expert examination in the judicial examination bodies are collected in accordance with the Rules for Determining the cost of conducting a forensic examination in the judicial examination bodies, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated March 30, 2017 No. 325.
Part 4. The examination may be entrusted to a person from among those proposed by the parties.
The production of a forensic examination may be entrusted:
1) employees of the judicial examination bodies;
2) individuals engaged in forensic expertise on the basis of a license;
3) to other persons on a one-time basis in cases stipulated by law.
The persons specified in subitems 1) and 2) must have the citizenship of the Republic of Kazakhstan.
Information about forensic experts who are employees of forensic examination bodies, as well as persons licensed to engage in forensic expertise, is entered into the State Register of Forensic Experts of the Republic of Kazakhstan.
The Ministry of Justice also creates a register of experts – individuals engaged in forensic expertise on the basis of a license. Unfortunately, their number is minimal, which, along with other industry problems, hinders the development of the private expertise market and mainly preserves the monopoly of state expertise in this industry.
This is a direct consequence of the insufficient number of active participants in the market of services licensed to engage in forensic expertise (the number of persons engaged in forensic expertise in private is extremely low today).;
- Undeveloped material infrastructure for private forensic activities (there are no private laboratories, research centers, etc.).
The production of a forensic examination on a one-time basis may be entrusted in the following cases::
1) appointment of a forensic examination that is not provided for in the list of types of forensic examinations established by the Ministry of Justice of the Republic of Kazakhstan;
2) satisfaction of a reasoned challenge to judicial experts of the relevant specialty who are employees of the judicial examination bodies, as well as to persons engaged in forensic expert activity on the basis of a license, or reasoned suspension from the judicial examination of the judicial examination body as a whole;
3) involving a judicial expert of a foreign state.
The body (person) that appointed the forensic examination has the right to involve a specialist from a foreign state in the field of forensic examination as a judicial expert in accordance with the procedure established by law, on its own initiative or at the request of the head of the forensic examination body.
The requirement of a judge or official to summon the person charged with conducting the examination is mandatory for the head of the organization where the specified person works. This provision is fixed in Article 24 of the Law of the Republic of Kazakhstan dated February 10, 2017 "On forensic expertise".
Part 5. On the appointment of an expert examination, the judge, the body (official) in charge of the administrative offense case, issues a ruling in accordance with the requirements provided for in Part 5 of the commented article.
It is mandatory to have an entry in the definition explaining to the expert his rights and obligations and warning him of responsibility for giving a deliberately false conclusion. This requirement is mandatory for individuals engaged in forensic expertise on the basis of a license.; to other persons for whom the appointment of an expert examination is a one-time procedure, since an expert who is an employee of a judicial examination body is considered to be familiar with his rights and duties by the nature of his activity and warned about responsibility for giving a deliberately false conclusion in court. However, the presence of such a record in the definition when appointing an expert examination in the judicial examination authorities will not be a violation.
Part 6. Depending on the type and complexity of the assigned study, the forensic examination is carried out by a judicial expert alone or by a commission of judicial experts.
In cases where it is necessary to conduct complex forensic investigations, a commission examination is appointed, which is conducted by at least two forensic experts of the same specialty.
A commission consisting of at least three experts is appointed to conduct a forensic psychiatric examination of a person's sanity.
Part 7. A comprehensive examination is appointed when, in order to establish circumstances relevant to the case, research is needed based on different branches of knowledge, and is conducted by forensic experts of various specialties within their competence.
It is allowed to entrust a comprehensive examination to one expert if he has qualifications in various forensic specialties necessary for the conduct of this examination.
The rules for the organization and production of the examinations under consideration are regulated by the Law of the Republic of Kazakhstan dated February 10, 2017 "On Forensic expertise", by Order of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017 No. 484 "On approval of the Rules for the organization and production of forensic examinations and research in forensic examination bodies".
Part 8. Before sending a ruling on the appointment of an expert examination for execution, the judge or the body (official) who appointed the judicial examination is obliged to familiarize with it the person against whom proceedings are being conducted on an administrative offense and the victim, explaining to them the rights provided for in Part 8 of Article 772 of the Administrative Code.
Otherwise, the expert opinion will lose its evidentiary value and will be declared inadmissible, since it was obtained in violation of the constitutional rights and freedoms of a citizen or the requirements of the Administrative Code related to the deprivation or restriction of the rights of participants in the administrative process or violation of other rules of the administrative process (Part 3, Article 765 of the Administrative Code).
Unfortunately, this requirement of the law often remains unfulfilled. This is a common law enforcement problem for both administrative and criminal procedure practice.
The examination of the victims is carried out only with their written consent. If these persons have not reached the age of majority or have been declared legally incompetent by a court, written consent to the examination is given by their legal representatives (art. 753 of the Administrative Code).
Part 9. Based on the results of the examination, the expert (experts) gives on his behalf an opinion drawn up in accordance with the requirements of Article 773 of this Code and sends it to the judge, the body (official) who appointed the examination.
Part 10. An additional examination is appointed if there is insufficient clarity or completeness of the conclusion, as well as if there is a need to resolve additional issues related to the previous study.
The production of additional expertise may be entrusted to the same or another expert. When ordering an additional examination, the expert must be provided with the conclusion of the previous examination.
A comprehensive examination is appointed when, in order to establish circumstances relevant to the case, research is needed based on different branches of knowledge, and is conducted by forensic experts of various specialties within their competence.
Part 11. A second judicial examination is appointed to examine the same objects and resolve the same issues in cases where the previous conclusion of the judicial expert is insufficiently substantiated or its conclusions are questionable or the procedural rules were significantly violated when appointing and conducting a judicial examination.
The re-examination is entrusted to a commission consisting of at least two experts and without the inclusion of the expert who conducted the initial examination. The expert who conducted the previous examination may be present during the re-examination and provide explanations to the commission, but he does not participate in the expert study and the preparation of the conclusion.
A commission forensic examination is appointed in cases where it is necessary to conduct complex forensic research and is conducted by at least two forensic experts of the same specialty.
Part 12. Complex, repeated and commission examinations are classified as complex if the Appendix to the Rules for the Organization and Production of forensic Examinations and Research in the judicial examination bodies does not provide for the classification of issues solved during their production as particularly complex.
In order to appoint additional and repeated examinations, the judge, the body (official) issues a ruling that must be motivated. If the reasons for the appointment of a re-examination are insufficiently substantiated, the head of the territorial subdivision returns the objects of the examination to the judge, the body (official) who appointed the examination, without executing the resolution, the ruling on the appointment of the examination. When assigning additional and repeated examinations, the expert(s) must be provided with the conclusions drawn up based on the results of previous examinations.
If a second or subsequent examination is ordered for several reasons, some of which relate to additional examination, and others to repeated examination, such examination is carried out according to the rules of repeated examination.
Forensic research is divided into four categories according to the degree of complexity:
1) simple - standard, for uncomplicated objects that do not require the use of labor-intensive research methods;
2) medium degree of complexity - in which the qualitative and quantitative characteristics of objects, as well as the methods of forensic research used, require certain time costs.;
3) complex - forensic investigations that require the use of long-term and high-tech, instrumental methods, in-depth analysis of the results obtained, related to visiting the scene, multi-object, with a large number of questions;
4) particularly complex - original, non-standard studies of new objects, as well as those that are methodically and organizationally complicated, including solving situational problems.
Depending on the complexity categories of forensic examinations, the time period for their production is determined in the following order:
1) simple – up to 5 days;
2) medium degree of difficulty – up to 20 days;
3) difficult and especially difficult – up to 30 days.
Part 13. If, prior to conducting the study, the judicial expert (judicial experts) becomes convinced that the questions posed to him go beyond his special knowledge or the materials presented to him are unsuitable or insufficient to give an opinion and cannot be completed, or the state of science and expert practice does not allow answering the questions raised, he makes a reasoned message about the impossibility of giving an opinion to the judge., to the body (official) who appointed the expert examination. The message must be certified by his signature and personal seal. In the case of a judicial examination by a judicial examination body, the signature of a judicial expert (judicial experts) is certified with the seal of the specified body.
The notification of the inability to give an opinion must specify: the date of its execution, the time and place of the forensic examination; the basis for the forensic examination; information about the body (person) who appointed the forensic examination; the objects of the study; information about the body of the forensic examination and (or) the judicial expert (judicial experts) who are entrusted with the judicial examination expertise (surname, first name, patronymic (if any), education, expert specialty, work experience in the specialty, academic degree and academic title, position held); a note, certified by the signature of a judicial expert (judicial experts), stating that he has been warned of responsibility for knowingly giving a false conclusion; questions raised with the permission of a judicial expert (judicial experts); justification for the inability to answer the questions posed to the judicial expert (judicial experts).
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
