Commentary to article 14. Personal integrity  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. No one may be subjected to administrative detention, summoning, delivery to the internal affairs bodies (police) or other state bodies, personal search and inspection of possessions with an individual, or other measures to ensure proceedings on an administrative offense, except on the grounds and in accordance with the procedure established by this Code.

     2. Administrative arrest as a measure of administrative punishment may be imposed only by a judge's order in the cases and in accordance with the procedure established by this Code.

     3. Every detainee who has been brought before the internal affairs bodies (police) or other state body shall be immediately informed of the grounds for detention, bringing, delivery, as well as the legal qualification of the administrative offense that he is charged with committing.

     4. A state body (official) is obliged to immediately release an unlawfully detained person who has been brought, delivered or is under administrative arrest for more than the period stipulated by the judge's decision.

     5. None of the persons participating in the case of an administrative offense may be subjected to torture, violence, cruel or degrading treatment.

     6. In the course of proceedings on an administrative offence against the will of a person or his representative, actions violating the inviolability of the person are possible only in the cases and in the manner expressly provided for by this Code.

     7. The detention of a person against whom administrative arrest has been chosen as a measure of administrative punishment, as well as a person subjected to administrative detention, must be carried out in conditions that exclude a threat to his life and health.

     8. Damage caused to an individual as a result of unlawful administrative arrest, detention in conditions dangerous to life and health, or ill-treatment of him is subject to compensation in accordance with the procedure provided for by law.

     In 2003, by Decree of the President of the Republic of Kazakhstan No. 1227, the International Covenant on Human Rights was signed, which was ratified by the Law of the Republic of Kazakhstan dated November 21, 2005 "On Ratification of the International Covenant on Economic, Social and Cultural Rights". Recognizing that, according to the Universal Declaration of Human Rights, the ideal of a free human person, free from fear and want, can be realized only if conditions are created in which everyone can enjoy their economic, social and cultural rights, as well as their civil and political rights.

     The commented principle is also enshrined in Article 18 of the Constitution. Everyone has the right to privacy, personal and family secrets, and the protection of their honor and dignity. Everyone has the right to privacy of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications. Restrictions on this right are allowed only in cases and in accordance with the procedure directly established by law.

     The article under investigation of the Administrative Code consists of 8 parts and is devoted to the protection of a person's personality from the illegal application of administrative coercion measures against a person suspected of committing an administrative offense.

     Part 1 provides for a regulatory ban on the use of measures to ensure proceedings in an administrative offense case without the grounds established by the Code. The legal grounds and the full list of security measures are listed in Article 785 of the Administrative Code. The grounds for applying security measures are characterized by objectives:

     1) identification;

     2) drawing up a protocol on an administrative offense, when it is impossible to draw it up at the place where the administrative offense was committed.;

     3) ensuring timely and proper consideration of the case;

     4) execution of the decision on the imposition of an administrative penalty adopted in the case;

     5) prevention of an immediate threat to human life or health, the threat of an accident or man-made disasters.

     More specific goals are specified in Articles 786, 787, 790-793, 795-797 and 800 of the Administrative Code. The mechanism of application of measures to ensure proceedings in cases of administrative offenses is explained in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 9, 2012 No. 1. Moreover, the application of security measures must be lawful, meet the criteria of reasonableness, necessity and sufficiency. Each of the security measures listed in Article 785 of the Administrative Code may be applied separately or simultaneously with other measures, if necessary.

     Part 2 of the commented article establishes that administrative arrest may be imposed only by a judge's order in the cases and in accordance with the procedure established by the Code. The concept and legal grounds for the application (or prohibition on the use) of administrative arrest are provided for in Article 50 of the Administrative Code. Administrative arrest may not be applied to pregnant women and women with children under the age of fourteen, persons under the age of eighteen, persons with disabilities in groups 1 and 2, as well as women over the age of fifty-eight, men over sixty-three, and men raising children under the age of fourteen alone. However, this is not a complete list of persons against whom it is prohibited to impose administrative penalties in the form of administrative arrest. According to part 2 of art . 32, administrative arrest shall not be applied to military personnel and those liable for military service who are at military training camps, except in the cases provided for in articles 651, 652, 667, 676, 677, 680, 681 Administrative Code. Such a penalty may also not be applied to employees of special State and law enforcement agencies, judges and persons who have privileges and immunity from administrative responsibility.

     Based on Part 3 of Article 744 of the Administrative Code, the court's consideration of a case on an administrative offense, the commission of which entails an administrative penalty in the form of administrative arrest, the presence of a person brought to administrative responsibility is mandatory.

     According to Part 3 of Article 759 of the Administrative Code, in the absence of a prosecutor, such cases can be considered only in cases where there is evidence of timely notification by the prosecutor of the place and time of the case and if he has not received a motion to postpone the case.

     Part 3 of the analyzed article provides for the specifics of administrative delivery, detention and drive. When applying these coercive measures, the person is immediately informed of the grounds for detention, drive, delivery, as well as the legal qualification of the administrative offense, the commission of which is imputed to him.

     The basis for the application of delivery is the availability of objective data on the fact of the commission of an administrative offense and a reasonable assumption about its commission by the person against whom it is applied. One of the additional grounds is the violator's refusal to comply with the legal requirements or orders of representatives of state bodies to stop committing an administrative offense. The use of administrative detention for the purpose of drawing up a protocol on an administrative offense, checking documents, establishing identity, etc. not allowed.

     The drive is carried out by the internal affairs bodies, the anti-corruption service, and the economic investigation service on the basis of a determination by a judge, body (official) considering an administrative offense case. A copy of the definition is given to the person who has been brought in.

     Part 4 of the article in question provides that a State body (official) is obliged to immediately release an unlawfully detained person who has been brought, delivered or is under administrative arrest for more than the period stipulated by the judge's decision.

     The terms of administrative detention are provided for in Article 789 of the Administrative Code, depending on the offense committed, it can last up to 48 hours. Delivery does not have specific deadlines, but must be carried out as soon as possible, but if the delivery objectives listed in Article 786 of the Administrative Code are achieved, the person must be released or an informed decision on administrative arrest must be made. The time of delivery is not included in the time of administrative detention.

     A drive is the forced transfer of an individual or a representative of a legal entity against whom proceedings are underway in an administrative case, a representative of a minor who is being held administratively liable, to a court or body considering an administrative offense case, if these persons evade attendance at the summons of a judge or body (official).

     Part 5 of the commented article prohibits the subjecting to torture, violence, cruel or degrading treatment of persons participating in the administrative process. The content of the norm is aimed at the realization of the constitutional right of citizens to the inviolability of human dignity, provided for in Article 17 of the Constitution. No one should be subjected to torture, violence, or other cruel or degrading treatment or punishment.

     It should be noted that law enforcement and other government agencies in Kazakhstan have internal security units whose task is to prevent, detect and suppress offenses by employees, including acts of torture.

Torture and ill-treatment are qualifying signs of offences falling within the scope of criminal justice. The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated December 28, 2009 clarifies the procedure for responding to such negative phenomena. If the arguments and complaints about the use of torture, violence, or other cruel or degrading treatment are confirmed, the prosecutor issues a decision to institute criminal proceedings. At the same time, the prosecutor must reverse the illegal decision being appealed and take measures to restore the violated rights of the applicant.

     If an appeal is received from a person brought to administrative responsibility that the testimony was given by him during physical or mental abuse by officials, while he was not familiar with the right to invite a lawyer and not to testify against himself, his interview was conducted without the participation of a lawyer, then the disputed testimony should be declared inadmissible. as evidence.

     Part 6 provides that the commission of acts violating the inviolability of a person, against the will of a person or his representative, is possible only in cases and in accordance with the procedure directly provided for by the Administrative Code. The reason for this may be the goals provided for in Article 785 of the Administrative Code on the application of measures to ensure proceedings in cases of administrative offenses.

     In cases stipulated by law, employees of special state and law enforcement agencies have the right to apply special preventive measures, including for administrative offenses. For example, articles 59-62 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" provide for cases (legal grounds) when law enforcement officers have the right to use physical force, special means and firearms against an offender.

     According to Part 3 of Article 36 of the Administrative Code, victims and other individuals also have the right to detain a person who has committed an encroachment, along with specially authorized persons. In this regard, law-abiding citizens, when suppressing administrative offenses, may violate the inviolability of the individual.

     According to the Law of the Republic of Kazakhstan dated July 9, 2004 "On the participation of citizens in ensuring public order", citizens involved in the protection of public order have the right "to use physical force and other means to prevent offenses and detain offenders if it is not possible to achieve these goals by other means. At the same time, the necessary measures should not be exceeded. It is prohibited to use physical force and other means against women, persons with obvious signs of disability, and minors when their age is known or obvious, except in cases where they commit an armed or group attack (violence)."

     Prohibitions on the use of physical force by public police assistants differ from the prohibitions provided for in Article 60 of the Law of the Republic of Kazakhstan "On Law Enforcement Service". Law enforcement officers are prohibited from using "special means and fighting techniques against women, persons with obvious signs of disability, and minors, except in cases where they commit an attack that threatens the life and health of others, a group attack, or armed resistance." There are three main differences here:

     - Law enforcement officers are allowed to use special means and physical force against minors aged 14 and over, and public assistants are allowed to use physical force only against persons over the age of 18.;

     - prohibitions on the use of physical force by law enforcement officers apply only to the use of SAMBO fighting techniques, and public police assistants are allowed to use any other physical force.;

     - public assistants can use any means, and police officers can use only special means, which are provided for by the Decree of the Government of the Republic of Kazakhstan dated October 30, 2001 No. 1375.

     Part 7 of the article in question provides for the specifics of the detention of a person in respect of whom administrative arrest has been chosen as a measure of administrative punishment, as well as a person subjected to administrative detention. Conditions of detention in special institutions or in specially designated premises for persons detained administratively must exclude a threat to their life and health.

     The legal basis for the procedure and conditions of detention of persons in special institutions providing temporary isolation from society is the Law of the Republic of Kazakhstan dated March 30, 1999 No. 351 "On the procedure and conditions of detention of persons in special institutions providing temporary isolation from society." This Law defines the legal basis for the activities of special institutions that legally provide temporary isolation from society, as well as establishes the rights and obligations of persons held in them. In art . 4 It is stated that detention in special institutions is carried out in accordance with the principles of legality, the presumption of innocence, equality of citizens before the law, humanism, respect for the honor and dignity of the individual, the norms of international law and should not be accompanied by actions held in special institutions.

     At the subordinate level, the above principles are implemented on the basis of departmental legal acts of authorized bodies approving the regime and procedure for the detention of persons detained administratively and subjected to administrative arrest.  

     The internal affairs bodies, according to paragraph 9 of the Order of the Ministry of Internal Affairs of the Republic of Kazakhstan dated May 23, 2011 No. 232, allow the operation of special receivers only if there are premises that meet sanitary and hygienic standards and fire safety requirements suitable for the safe detention of persons subjected to administrative arrest.

     According to the Internal Regulations of the special receivers of the internal affairs bodies, approved by Order No. 9 of the Order of the Ministry of Internal Affairs of the Republic of Kazakhstan dated January 9, 2012, the administration of the special receiver creates conditions for persons subjected to administrative arrest that meet the requirements of hygiene, sanitation, and fire safety.

     The standard of sanitary area in the cells is set at the rate of at least 2.5 square meters per person. Persons subjected to administrative arrest and held in special reception facilities are provided for individual use.:

     1) a sleeping place;

     2) bedding: mattress, pillow and blanket;

     3) bed linen: two sheets and a pillowcase;

     4) tableware for mealtimes;

     5) with a towel;

     6) with soap.

     Boiled drinking water is supplied to the cells daily. At least twice a week, each person subjected to administrative arrest is given the opportunity to take a shower lasting no more than 15 minutes. Persons subjected to administrative arrest and held in special reception facilities are provided with food according to the standards established for detainees and those in a temporary detention facility. Writing materials (paper, ballpoint pen) are provided for writing complaints and statements, as well as upon request. You can use your own bedding, as well as other things and objects. It is allowed to receive parcels, parcels and transfers, the weight of which should not exceed the norms stipulated by postal regulations.

     Part 8 stipulates that harm caused to an individual as a result of unlawful administrative arrest, detention in conditions dangerous to life and health, or ill-treatment is subject to compensation in accordance with the procedure provided for by law. Compensation for harm is provided for in Chapter 48 of the Administrative Code, as well as in civil proceedings and established by Chapter 47 of the Civil Code of the Republic of Kazakhstan.  

     Part 1 of Article 862 of the Administrative Code states that the harm caused to a person as a result of the illegal application of measures to ensure the proceedings in a 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.

     923 of the Civil Code of the Republic of Kazakhstan, the damage caused to a citizen as a result of the unlawful imposition of an administrative penalty in the form of arrest is fully compensated by the state, regardless of the fault of officials of the bodies of inquiry, prosecutor's office and court, in accordance with the procedure established by legislative acts.  

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.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     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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