Commentary to article 36. Detention of a person who committed an encroachment The Code of the Republic of Kazakhstan on Administrative Offences
1. It is not an administrative offense to commit an act provided for in this Code when detaining a person who has committed an unlawful encroachment in order to deliver this person to state authorities and prevent him from committing new encroachments, if it was not possible to detain such a person by other means and the necessary measures were not exceeded.
2. Exceeding the measures necessary to detain a person who has committed an encroachment is recognized as their obvious inconsistency with the nature and degree of danger of the encroachment committed by the detained person and the circumstances of the detention, when clearly excessive harm is unnecessarily inflicted on the person, not caused by the situation. Such an excess entails administrative liability only in cases of intentional harm.
3. Along with specially authorized persons, victims and other individuals also have the right to detain a person who has committed an encroachment.
Part 1. The detention regulated in this norm should be distinguished from administrative detention as a measure to ensure proceedings in the case of an administrative offense, which is a short-term restriction of the personal freedom of an individual, a representative of a legal entity, an official in order to prevent an offense or ensure proceedings (art.787 of the Administrative Code). 36 of the Administrative Code can be carried out by any person, and in accordance with art. 787 Administrative Code is only authorized by an authorized person and an appropriate protocol is drawn up in accordance with the requirements of administrative proceedings.
The detention of a person who has committed an encroachment is regulated in this norm as a circumstance excluding the illegality of the act.
The existing conditions of legality in the detention of a person who has committed an encroachment can be divided into two groups:
- related to the detainee;
- related to the detention itself.
Only the person who committed the unlawful assault can be detained. A full and final legal assessment of this encroachment will be given by an authorized body or official. It should be noted that the Criminal Code, among the circumstances excluding the illegality of the act, establishes the infliction of harm during the detention of a person (art. 33 of the Criminal Code).
The second group of conditions includes the purpose of detention, the harm caused and its size.
Detention must be carried out for specific purposes:
- delivery of the person to the state authorities;
- preventing them from committing new attacks.
Based on the goals, the legitimate conditions should be the unwillingness or resistance of the person to appear before the relevant state body, as well as the ability to continue their illegal acts or commit new ones.
Causing harm during detention should be the only way to deliver or stop a person's unlawful actions.
Causing harm must fall under the signs of an administrative offense.
The legislator has established special requirements for the amount of damage caused. If the scope of the measures applied is exceeded than necessary, the conditions for the legality of detention will be violated.
In accordance with Part 2 of this rule, the signs of exceeding the measures necessary to detain a person are:
- the apparent inconsistency of the measures with the nature and degree of danger of the encroachment committed by the detained person and the circumstances of the detention;
- the harm unnecessarily inflicted is clearly excessive, not caused by the situation.
The apparent nature of the discrepancy implies an obvious difference between the committed infringement and the applicable measures, a significant and significant difference.
Legislation is not able to clearly measure the difference and consolidate it in its norms. Therefore, terms with an evaluative meaning are used. In each specific case, the circumstances should be determined in detail. The main condition for legality is the sufficiency of the applied measures to achieve the goals of detention. For example, it is enough to take the car keys so that the person stops violating the rules of the road. In another case, when a physically strong bully is detained, in order to overcome his resistance, it is necessary to immobilize his arms and legs. The possibilities of each of the parties to the detention should also be measured in each specific case.
An individual is not held liable for exceeding the measures of detention due to negligence, i.e. when he foresaw the possibility of harmful consequences, but without sufficient grounds thoughtlessly counted on their prevention or did not foresee the possibility of such consequences, although with due care and foresight he should have and could have foreseen them.
In the case of exceeding measures during detention, administrative liability occurs only when intentionally causing harm, i.e. when the person was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired or consciously allowed these consequences to occur or was indifferent to them.
Part 3 establishes the right of victims and other persons to detain a person who has committed an encroachment, according to the conditions stipulated in art. 36 of the Administrative Code.
By pointing out that citizens have such a right along with authorized bodies, several types of subjects are united according to the objectives of this event: delivery and suppression.
The legislator divided the subjects entitled to detention as follows::
- authorized person;
- the victim;
- other individuals.
The detention of a person who has committed an encroachment is not so much a right as an obligation for authorized persons and bodies, since if they do not take measures to detain them, they may be punished.
The subjects authorized to detain include employees of the internal affairs bodies, national security bodies, border guards, state revenue bodies, bailiffs and other authorized persons specified in art. 787 of the Administrative Code.
A victim is a natural or legal person who has suffered physical, property or moral harm by an administrative offense (Article 785 of the Administrative Code).
In administrative practice, it is often the victims who carry out the detention of persons who have committed an unlawful encroachment.
Other individuals may include a fairly wide range of individuals, but, as a rule, they include eyewitnesses of a committed offense. The most systematic is the consolidation of the grounds for detention in the Criminal Procedure Code of the Republic of Kazakhstan (Article 128), according to which such circumstances can be understood as such:
- when this person is caught committing an assault or immediately after it is committed;
- when eyewitnesses (witnesses), including victims, directly point to this person as having committed an unlawful assault;
- when obvious traces of a committed unlawful encroachment are found on this person or his clothes, with him or in his home.
This list is not exhaustive, it is not fixed in the norms of administrative legislation. Therefore, the decision on the legality of the detention is made based on all the circumstances of the event.
The detention of a person who has committed an encroachment must be distinguished from necessary defense (art. 35 of the Administrative Code). Despite the general similarity of circumstances that exclude the illegality of the act, they differ in the following main features::
- the purpose of detention is to deliver a person to state authorities and prevent the possibility of committing new attacks, and the necessary defense is to protect against encroachment.;
- detention can be carried out by a wide range of persons, and the necessary defense can only be carried out by the person against whom the attack is being committed.;
- detention can be carried out at any time after the commission of an offense, and the necessary defense is implemented during the encroachment or immediately after its completion.
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
