Commentary to article 37. An extreme necessity  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. It is not an administrative offense to harm the interests protected by this Code in a state of extreme necessity, that is, to eliminate a danger that directly threatens the life, health, rights and legitimate interests of this person or other persons, the interests of society or the state, if this danger could not be eliminated by other means and the limits of extreme necessity were not exceeded..

     2. Exceeding the limits of extreme necessity is recognized as causing harm that clearly does not correspond to the nature and degree of the threatened danger and the environment in which the danger was eliminated when harm equal to or more significant than prevented was inflicted on law enforcement interests. Such an excess entails liability only in cases of intentional harm.

     Part 1. An act committed under the following circumstances is considered an extreme necessity:

     - elimination of danger directly threatening the life, health, rights and legitimate interests of individuals, the interests of society and the state;

     - the harm caused by the actions of a person should be less significant than the harm prevented;

     - the person causing the harm had no other way to prevent the consequences except by causing less harm.

     If all these circumstances are present, the person's act will not qualify as an administrative offense, and the person will not be held administratively liable for its commission.

     By harm caused to legally protected interests, we mean various actions that form part of an administrative offense that entails administrative responsibility. When committing such acts in a state of extreme necessity, there is no sign of guilt.

     The Institute of extreme necessity helps to increase people's social activity, provides them with the opportunity to participate in preventing harm to human rights, the interests of the state and society.

     The reason for causing harm, if absolutely necessary, is the danger created by various sources. These are intentional or careless human actions (for example, creating an emergency situation on the road by a road user), natural forces (earthquake, flood, fire, etc.), technical accidents, malfunctions of machines and mechanisms, animal attacks, physiological processes occurring in the human body, etc..  

     At the same time, it should be understood that this danger is real, not imaginary, and if you do not take action, the consequences will be inevitable. In other words, actions are deliberately committed, actions that constitute an offense, but the least dangerous.

     For example, a driver who is intoxicated takes a person to the hospital. In order for his actions to be recognized as committed in a state of extreme necessity, the following is necessary. First, the person being transported to the hospital must be in real immediate danger. That is, this condition will be met if the situation required immediate medical intervention in cases of, for example, a heart attack, stroke, appendicitis attack, etc. Secondly, there were no other ways to urgently deliver the patient to a medical facility (there were no other vehicles; other persons capable of driving a vehicle but not intoxicated, etc.). Thirdly, driving a vehicle while intoxicated did not cause harm to the life and health of third parties. Only if all three conditions are met will the driver be released from administrative responsibility under Article 608 of the Administrative Code.  

     If the danger has not occurred or has passed, and the actions to eliminate it have been performed, in this case the act will not be recognized as committed if absolutely necessary and the person will be brought to administrative responsibility for it.

     When determining the amount of harm caused and the harm prevented, it is necessary to take into account the social values accepted in society, for example, in accordance with Article 1 of the Constitution of the Republic of Kazakhstan, the highest values of the state are a person, his life, rights and freedoms. Therefore, property and other protected interests can be sacrificed to save a person's life and health. Conversely, harm to property in the protection of human and civil rights should be recognized as legitimate, since in this case less harm is caused than prevented.

     The commission of an offense in conditions of extreme necessity can also be carried out to prevent harm to third parties, as well as to society and the state. For example, a hunter, having seen an attack by wild animals on people, fired a shot in a populated area (Article 436 of the Administrative Code), however, he will not be brought to administrative responsibility, because the hunter prevented greater harm that could have been caused to human life and health. On the condition that no one was injured by the shot fired, and there was no other way to protect the victims.

     Legal entities may also commit administrative offenses if absolutely necessary. As a rule, these offenses are related to the prevention of harm caused by natural disasters. For example, during a forest fire, an organization engaged in logging begins cutting down trees for which it did not have a permit (this offense falls under Article 372 of the Administrative Code), but they perform this action to separate burning trees from non-burning ones and save part of the forest.  

     Part 2. Exceeding the limits of extreme necessity is characterized only by the amount of harm caused, which is equal to or clearly greater than the harm being prevented.

     Determining the limits of the legality of extreme necessity is important both theoretically and practically. Their clear regulation by norms providing for extreme necessity is an important guarantee of their correct understanding by citizens and law enforcement agencies when applying these norms.

     However, there is a mandatory condition in the commented norm, under which the act will be considered to exceed the limits of extreme necessity.: this is the presence of intent to cause harm. That is, when a person commits unlawful acts to prevent harm, he must be aware of and desire the occurrence of equal or more severe consequences from his actions than from those prevented.

     In administrative law, there are two forms of guilt — intent and negligence. An administrative offense is considered to have been committed intentionally if the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired the occurrence of such consequences or consciously allowed them or treated them indifferently.  

     Thus, a person who commits an administrative offense, when exceeding the limits of extreme necessity, anticipates the harmful consequences of his act, desires the occurrence of these consequences and realizes that these consequences will be proportionate or cause greater harm than the harm being prevented. For example, a driver, driving a vehicle in dense traffic, notices that another car is approaching to his left, and in order to avoid a collision, the driver decides to enter the oncoming traffic lane, where he admits a more serious accident (head-on collision of vehicles). In this case, the driver was aware that entering the oncoming traffic lane could have more serious consequences than a side collision on a tangent, but nevertheless committed a violation of the traffic regulations of the Republic of Kazakhstan. Also, to assess the amount of damage caused and prevented, the difference in material damage between the committed accident and the prevented accident will be taken into account.  

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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