Commentary to article 17. Inviolability of property The Code of the Republic of Kazakhstan on Administrative Offences
1. Property is guaranteed by law. No one can be deprived of their property except by a court decision.
2. Seizure of property and documents; suspension from driving a vehicle, small vessel; detention of a vehicle, small vessel; inspection of vehicles, small vessels; inspection of territories, premises, vehicles, goods, other property, as well as relevant documents, application of other measures to ensure proceedings on an administrative offense infringing on property, may be carried out only in the cases and in the manner provided for by this Code.
According to Article 6 of the Constitution, State and private property are recognized and equally protected in the country. Property is binding, and its use must simultaneously serve the public good. The subjects and objects of ownership, the scope and limits of the exercise of their rights by the owners, and the guarantees of their protection are determined by law.
Part 1 of the commented article is aimed at protecting the property constitutional rights of citizens provided for in Article 26 of the Constitution. Citizens of the Republic of Kazakhstan may have any legally acquired property in private ownership. Property, including the right of inheritance, is guaranteed by law. Compulsory alienation of property for State needs may be carried out in exceptional cases provided for by law, provided that it is compensated in an equivalent manner.
45 of the Administrative Code, the deprivation of citizens of their property, except by a court decision, may be carried out when the court elects an administrative penalty in the form of confiscation of objects that were the instrument or object of an administrative offense, as well as property obtained as a result of an administrative offense.
Confiscation can only be applied as an additional administrative penalty, and the conditions for its execution are provided for in Article 899 of the Administrative Code.
The sale or further use of the confiscated item is carried out on the basis of the resolution of the Government of the Republic of Kazakhstan dated July 26, 2002 "Some issues of accounting, storage, evaluation and further use of property that has been transferred (received) into state ownership on separate grounds."
The right to property of citizens and their lawful disposal of their property is provided for in Article 188 of the Civil Code of December 27, 1994. The owner has the right, at his discretion, to perform any actions with respect to the property belonging to him, including alienating this property to other persons, transferring to them, while remaining the owner, his powers to own, use and dispose of the property, pledge the property and encumber it in other ways, dispose of it in another way.
The same part stipulates that citizens may be deprived of their property except by a court decision. The legal grounds for the compulsory termination of ownership rights are also set out in Part 2 of Article 249 of the Civil Code in the following cases::
1) foreclosure on property under the obligations of the owner;
2) compulsory alienation of property that, by virtue of legislative acts of the Republic of Kazakhstan, cannot belong to this person;
3) requisitions;
4) confiscation;
5) compulsory alienation of immovable property in connection with the seizure of a land plot;
6) seizures of mismanaged historical and cultural monuments and cultural valuables;
7) nationalization;
8) sale of property at public auction by a court decision in the event of the impossibility of dividing the common property or allocating a share from it.
253 of the Civil Code, requisition is applied in cases of natural disasters, accidents, epidemics, epizootics, during the period of martial law or during wartime and under other circumstances of an emergency nature. Property in the interests of the company may be seized from the owner by decision of state bodies with payment of the value of the property (requisition).
In case of confiscation, property is seized from the owner free of charge in court in the form of a sanction for committing an administrative offense.
Part 2 of the article under study, as well as Part 1 of Article 14 of the Administrative Code, provides for the principle of lawful application of measures to ensure proceedings in an administrative offense case, but only in terms of protecting the property rights of citizens, not individuals.
Based on Part 3 of Article 785 of the Administrative Code, the measures to ensure proceedings in an administrative offense case listed in Part 2 of Article 17 of the Administrative Code may be applied prior to the initiation of an administrative offense case (except for personal inspection, inspection of items with an individual), during the proceedings, as well as at the stage of execution of the decision on the case. about an administrative offense. At the same time, it should be taken into account that in the 2014 edition of the Code, an inspection can be carried out only after the initiation of an administrative case, while an inspection can be carried out before it is initiated.
The purposes and legal grounds for the application of these security measures are provided for in Articles 792, 795, 797, 796, 798 of the Administrative Code.
Other measures to ensure proceedings on an administrative offense infringing on property should be understood as the measures provided for in Articles 799-801 of the Administrative Code applied to legal entities.
The specifics of the application of measures to ensure proceedings in the case of an administrative offense are set out in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 9, 2012 No. 1 "On the application of measures to ensure proceedings in cases of administrative offenses." The application of security measures must be lawful and 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.
Security measures may be appealed by the person in respect of whom they have been taken to a higher authority (a higher official), to a specialized administrative or district court in accordance with the procedure provided for in Chapter 44 of the Administrative Code.
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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