Commentary to article 31. Features of administrative responsibility when fixing an offense with certified special control and measuring equipment and devices The Code of the Republic of Kazakhstan on Administrative Offences
1. When an administrative offense is recorded by certified special control and measuring equipment and devices operating in automatic mode, the owners (owners) of vehicles are brought to administrative responsibility for administrative offenses in the field of traffic.
2. The owner (owner) of a vehicle shall be released from administrative responsibility for an offence committed with the participation of this vehicle if, during an inspection, according to his report or application, the person in whose possession it was at the time of fixing the offence is identified or it was removed from its possession as a result of illegal actions of other persons.
Note.
In the articles of this Code, the owners of vehicles are recognized as individuals who own vehicles by right of ownership, as well as individuals to whom vehicles belonging to individuals and legal entities have been transferred for temporary possession and use.
Certified special control and measuring equipment and devices in the articles of this Code should be understood as technical equipment and devices for monitoring and recording offenses that have passed metrological verification, photographic and video equipment that record the fact and time of the offense, type, make, state registration number plate, as well as the speed and direction of movement of the vehicle.
Part 1. In accordance with Article 25 of the Administrative Code, the legislator recognizes as an administrative offense an unlawful, culpable (intentional or careless) act or omission of an individual or an unlawful act or omission of a legal entity for which administrative responsibility is provided. Some administrative offenses can be recorded by special control and measuring equipment operating in automatic mode. These technical means are certified by the Committee for Technical Regulation and Metrology of the Ministry of Investment and Development of the Republic of Kazakhstan.
It should be mentioned that the commented article "migrated from the old Administrative Code", which was included in it within the framework of the Law of the Republic of Kazakhstan dated July 4, 2008 "On Amendments and additions to certain legislative acts of the Republic of Kazakhstan on road safety". The main purpose of the introduced regulation was to combat corruption by eliminating direct contact with a police officer from law enforcement practice, as well as improving traffic supervision.
This procedure works as follows. According to art . 802 of the Administrative Code, one of the reasons for initiating an administrative offense case is the testimony of special automated measuring instruments, as well as certified special control and measuring equipment and monitoring devices, including those operating in automatic mode and recording the commission of an administrative offense in the field of motor transport and road safety through photographs and videos of the traffic situation, determining the speed and direction of a vehicle, and the actions of other road users.
Thus, technical measuring instruments are used to determine the speed of vehicles, the weight parameters of heavy vehicles, as well as to record other traffic offenses (non-compliance with the requirements prescribed by road signs or road markings, violation of maneuvering rules, etc.).
The peculiarity of the commented norm is that the process of initiation and bringing to administrative responsibility is carried out in the absence of the driver, and the instruction on the need to pay a fine is sent to the owner of the vehicle.
In accordance with paragraph 25 of Article 1 of the Law of the Republic of Kazakhstan "On Road Traffic", a driver is a person driving a vehicle, a driver leading cattle, a herd, pack, harness or riding animals along the road.
In turn, in Ozhegov's dictionary, the owner is understood as the owner of the property, i.e. the person to whom the ownership right is assigned. Part 1 of Article 188 of the Civil Code states: The right of ownership is the right of a subject, recognized and protected by legislative acts, to own, use and dispose of property belonging to him at his discretion.
Let's analyze these concepts in more detail. Ownership, as a legal category, means that property belongs to certain individuals or collectives under certain conditions and in certain forms (ownership in the subjective sense).
The right of ownership is a legally secured opportunity to exercise actual ownership of property.
The right of use is a legally secured opportunity to extract useful natural properties from a property, as well as to benefit from it. The benefit can take the form of income, increment, fruits, offspring and in other forms.
The right of disposal is a legally secured opportunity to determine the legal fate of property.
When driving a vehicle, the driver enjoys the right of ownership and use, and the right to dispose of the vehicle belongs exclusively to its owner.
Thus, an administrative offense recorded by certified special control and measuring equipment and devices can be committed by a driver who is not the owner of the vehicle, but an instruction on the need to pay a fine will come to the owner of the vehicle if no other person is listed in the database as driving this vehicle by proxy.
This provision is not fully consistent with the basic principles of administrative legislation. In fact, the burden of proof in this part (partially) lies not on the body, but on the person being held administratively liable. This is a kind of payment for the speed and simplicity of such administrative proceedings. Undoubtedly, the involvement of an innocent person is intolerable. However, it should be noted that such a revision of the article, in fact, shifts the burden of proof from the administrative body to the owner. If the vehicle was not driven by him, but by another person, then he needs to apply to the administrative practice authority with an appropriate application. This technique is often used by negligent citizens who want to avoid administrative responsibility, who, upon the expiration of the statute of limitations established by Article 62 of the Administrative Code, apply to administrative authorities together with another person with relevant statements.
The automatic locking devices are configured to identify the type, make and state registration number plate of the vehicle and only optionally allow you to record the driver's appearance, unlike, for example, in Germany, where the identification of the driver is mandatory. In this part, we are very optimistic and expectant about the future, as progress is being made in the development of certified special control and measuring equipment and devices operating in automatic mode.
Also, with the application of this rule, there is a problem of providing a defender to a person against whom proceedings have been initiated on an administrative offense. How can a suspect of committing an administrative offense in the field of road safety express his disagreement with the offense imputed to him and use the services of a defense attorney if the notification (notice) is he handed to him by a postman who is not at all a participant in the process of an administrative offense?
Part 2. As defined above, for administrative offenses recorded by certified special control and measuring equipment and devices operating in automatic mode, the owners (owners) of vehicles are brought to administrative responsibility for administrative offenses in the field of traffic. In cases where, at the time of the commission of an administrative offense, the vehicle was in the possession of another person, or was removed from his possession as a result of illegal actions of other persons, after proper notification to the owner of the vehicle, he has the right to contact the administrative police with a statement stating that he did not own this vehicle at the time of the commission of the offense. How can this be established?:
- identification by photos and videos of the driver and the owner;
- provision of documents on the transfer of the vehicle to the trust management;
- a statement from the person in possession of the vehicle at the time of the commission of the offense;
- providing copies of statements about the theft of a vehicle;
- providing documents confirming the absence of the vehicle owner in the locality where the offense was committed, etc.
Administrative scientists identify one of the significant problems of applying the rule of case review at the place where the offense was recorded, because it is the body in whose service area special technical means were used that receives the received materials, which also reduces the possibilities of protecting the person against whom the proceedings are being conducted in case of residence in another region.
In the note to this standard, the detailed concept of the vehicle owner is given, as well as what is meant by certified special control and measuring equipment and devices that apply to the entire Code of Administrative Offenses of the Republic of Kazakhstan.
A partial description of the principle of fixing an offense by technical means is given, this provision is of particular importance, since in the absence of one of the elements, for example, a car brand, a state registration license plate or a speed of movement, there will be insufficient evidence base for the offense, and this, in turn, will entail the impossibility of bringing to justice the perpetrators.
It should also be noted that more and more often in the legal press there are statements about the introduction of the practice of setting the average speed of vehicles on certain sections of the road. In this regard, it should be noted that the second paragraph of the note to this article does not provide an unambiguous answer about the legality or illegality of such practices. However, there are still a number of issues that indicate that such practices do not fully comply with legal norms. Thus, it follows from the direct interpretation of this paragraph that the technical means and devices used serve the purpose of "observation and fixation" rather than restoration and reconstruction of the event. In addition, these tools and devices must "record the fact and time of the offense, as well as the speed of the vehicle." In the case of an average speed, these legal requirements are not fully respected, since it is impossible to determine the exact speed, and the average speed is not such, as well as the exact time of the violation, which cannot be attributed to the time period, which is the case with an average speed.
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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