Commentary to article 29. Insanity The Code of the Republic of Kazakhstan on Administrative Offences
An individual who was in a state of insanity at the time of committing an unlawful act provided for in this Code is not subject to administrative responsibility, that is, he could not realize the actual nature and danger of his actions (inaction) or direct them due to a chronic mental illness, temporary mental disorder, dementia or other mental illness.
Due to the fact that sanity is a mandatory feature of the subject of an administrative offense, the legislator in this norm establishes the concept of insanity. This concept is common to tort law, in particular, and to criminal law (art. 16 of the Criminal Code).
Sanity is a mental property of a person, therefore insanity is the basis for exemption from responsibility of individuals.
Based on the content of this rule, insanity contains several constructive elements.:
- the ability to realize the actual nature of their actions (inaction);
- the ability to recognize the danger of their actions (inaction);
- the ability to direct their actions.
Scientists classify these elements according to legal, (mental) – the ability of a person to be aware, and medical (biological) criteria – the ability of a person to direct their actions (inaction). The combined presence of these criteria can serve as a basis for declaring a person insane.
The ability to realize the actual nature of a person's action (inaction) presupposes that he himself understands the reality of his actions in objective reality.
A person's awareness of the danger of action (inaction) presupposes an understanding of the threat to the interests of society and individuals, their health and individual rights. Understanding that his act is socially significant and may lead to a violation of established rules.
The ability to direct one's actions is inherent in a person acting or acting according to his own will, desire and conviction.
The root cause of the elements of insanity commented above is the personality psyche. Mental disorders affecting the legal assessment of human behavior are classified by the legislator into the following groups::
- chronic mental illness;
- temporary mental disorder;
- dementia;
- other painful mental states.
Chronic mental illnesses that affect a person's sanity include schizophrenia, affective disorder (mania), dissociative identity disorder (split personality), and others. These diseases are characterized by a long-term and stable nature, have a protracted and often progressive etiology.
A temporary mental disorder is an abnormal state of the human psyche in which he could not be aware of and direct his actions. This group may include psychosis, amnesia, pathological intoxication, and affect. The peculiarity of this category of mental anomalies is their temporary nature, sudden onset and completion.
Dementia is not one, but a complex of mental disorders characterized by persistent impoverishment and simplification of mental activity, weakening of cognitive processes, impoverishment of emotions and behavioral disorders.
Other painful mental conditions include conditions that are not a mental illness, but are accompanied by various temporary mental disorders. For example, acute hallucinatory delusions caused by various causes, caused by severe infections, severe injuries, brain tumors, etc..
The time factor is very important for exemption from administrative responsibility. Finding a person in a state of insanity must coincide with the moment of committing an administrative offense. Depending on the article of the Special Part of the Administrative Code, the time of the end of the commission of an administrative offense may vary. An individual must be in a state of insanity at the time of the end of the offense.
In proceedings on an administrative offense committed by an individual in a state of insanity, it is important to establish that the person's mental illness occurred before the offense, and did not occur after it was committed.
If a person has a mental illness after committing an administrative offense, he is subject to administrative responsibility on a general basis, except in cases when such a person has not recovered by the time of bringing to justice. Otherwise, it would contradict the goals and objectives of imposing an administrative penalty.
It is also necessary to exclude cases when the perpetrator suffered from a mental illness and was cured of it before committing an administrative offense.
In this sense, it is necessary to distinguish between incapacity and insanity, since there may be cases where a person could commit an administrative offense and subsequently be declared incompetent.
Undoubtedly, the categories of "insanity" and "incapacity" (Article 26 of the Civil Code) have a lot in common, but they should never be identified. First of all, they differ in their scope of application. The category of "insanity" is studied in detail and is widely used in the field of criminal law, and "incapacity" in the field of civil law. Insanity and incapacity have similar criteria: medical and legal. However, the medical criterion of "incapacity" is somewhat narrower than the similar criterion of "insanity". Accordingly, the content of the concept of "incapacity" is already the concept of "insanity". Recognition of a citizen as legally incompetent, as a rule, is directed towards the future, aimed at preventing him from committing rash actions. Recognition of a person as insane is always directed to the past, tied to the moment when he committed an offense.
In all cases of offenses committed by an insane person, expert examinations should be appointed to establish such issues as:
- does the person suffer from a chronic mental illness? If so, how?
- does the person suffer from dementia?
- What is the time duration of a person's mental illness?
- did the person get sick before or after committing an administrative offense?
- was the person in a state of mental disorder or other painful mental state at the time of the commission of the offense?
- could the person at the time of the commission of the offense have been aware of the actual nature and danger of his actions (inaction) or directed them?
- and others .
At the same time, all documentary evidence of mental illness must be requested during the trial: medical certificates, outpatient records, medical histories.
In order to make a correct and informed decision on the case, along with the expert's opinion and medical documents, it is necessary to collect data confirming the mental state of a person from the testimony of eyewitnesses, family members, and neighbors. Only when assessing the totality of evidence should a decision be made on exemption from administrative liability.
In accordance with Article 741 of the Administrative Code, proceedings on an administrative offense committed by a person in a state of insanity cannot be initiated, and what has begun must be terminated. The reason for the termination of such a case is the absence of corpus delicti (paragraph 2, part 1, art. 741 of the Administrative Code). The state of insanity excludes the subjective side from the composition of an administrative offense, and the absence of one of the elements of the offense leads to the recognition of the event as legitimate.
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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