Commentary to article 19. Exemption from the obligation to testify The Code of the Republic of Kazakhstan on Administrative Offences
1. No one is obliged to testify against himself, his spouse, or his close relatives, whose circle is determined by law.
2. Clergymen are not required to testify against those who confided in them in confession.
3. In the cases provided for in parts one and two of this article, the said persons have the right to refuse to testify and cannot be held liable for this in any way.
The content of the disposition of the commented article follows from the provisions of subclause 7) of clause 3 of Article 77 of the Constitution, according to which "no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by law. Clergymen are not required to testify against those who confided in them in confession."
Part 1. The concept of "close relatives" is not contained in the Administrative Code. The circle of close relatives is defined in clause 13) of Article 1 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family": close relatives are parents (parent), children, adoptive parents (adoptive parents), adopted children, full and half siblings, grandfather, grandmother, grandchildren. A similar definition is given in paragraphs 11) of Article 7 of the CPC and a note in Article 14 of the Law of the Republic of Kazakhstan "On Combating Corruption".
Subparagraph 26) of Article 1 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" defines marriage (matrimony) as an equal union between a man and a woman, concluded with the free and full consent of the parties in accordance with the procedure established by the law of the Republic of Kazakhstan, with the aim of creating a family, generating property and personal non-property rights and obligations between spouses.
According to V.N. Lapshin, spouses are persons who are married to each other, whose personal and property rights and obligations are determined by family legislation.
In Kazakhstan, marriage (matrimony) is recognized, concluded only by state bodies. A marriage entered into according to religious rites and ceremonies is not equivalent to a marriage registered with the registration authorities and does not give rise to corresponding legal consequences. Marriage (matrimony) is not recognized as the actual cohabitation of both a man and a woman, or persons of the same sex. That is, same-sex marriage or marriage that has not been officially concluded is not prohibited in Kazakhstan, but according to paragraph 3 of Article 2 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" they are not recognized as spouses. If a same-sex marriage is concluded abroad, it will not be recognized in the territory of the Republic of Kazakhstan. Article 230 of the Marriage (Matrimony) and Family Code regulates the procedure for recognizing a marriage (matrimony) concluded outside the Republic of Kazakhstan. A marriage (matrimony) between citizens of the Republic of Kazakhstan and between citizens of the Republic of Kazakhstan and foreigners or stateless persons concluded outside the Republic of Kazakhstan in compliance with the legislation of the State in whose territory it was concluded shall be recognized as valid in the Republic of Kazakhstan, except in cases provided for in articles 10 and 11 of the said Code. A marriage (matrimony) between foreigners concluded outside the Republic of Kazakhstan, in compliance with the legislation of the state in whose territory it was concluded, is recognized as valid in the Republic of Kazakhstan if it does not contradict the legislation of the Republic of Kazakhstan.
Part 2 of the article in question gives the clergy the right not to testify against persons who confided in them during confession. In accordance with paragraph 3) of Article 1 of the Law of the Republic of Kazakhstan "On Religious Activities and Religious Associations", a clergyman is a person authorized by the relevant religious association to perform spiritual, preaching service.
Confession is in the Abrahamic religions (Judaism, Christianity, and Islam) a confession of one's committed sins before God. Confession implies repentance and a decision to try to avoid sin in the future.
If the clergy witnessed the commission of an offense or they became aware of something about the act from other sources, but not during confession, they have the right to declare this (this is true for administrative offenses), and when contacting them they are required to give evidence.
Based on part 3 of the article under investigation, citizens and clergy cannot be held accountable if they refuse to testify in the cases listed in Parts 1 and 2 of Article 19 of the Administrative Code.
Based on paragraph 5 of Article 19 of the Law of the Republic of Kazakhstan "On Internal Affairs Bodies of the Republic of Kazakhstan", police officers, when exercising their powers, are required to explain to citizens that they have the right not to testify against themselves and close relatives, as well as to force them to testify and admit themselves guilty of committing a criminal or administrative offense.
The refusal of spouses, close relatives, and clergymen to testify is noted in the protocol indicating the initiation of proceedings on an administrative offense. For refusing to testify, the above-mentioned persons cannot be held accountable in any way.
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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