Commentary to article 45. Confiscation of an object that was an instrument or object of an administrative offense, as well as property obtained as a result of an administrative offense of the Code of the Republic of Kazakhstan on Administrative Offenses  

     1. The confiscation of an object that was the instrument or object of an administrative offense, as well as property obtained as a result of an administrative offense, consists in their compulsory, gratuitous conversion into state ownership in accordance with the procedure established by law.

     The seizure of an object from the illegal possession of a person who has committed an administrative offense, which is subject to return to its owner or withdrawn from circulation, is not considered confiscation. An item withdrawn from circulation is subject to State ownership or destruction.

     2. Only an object that is the property of the violator is subject to confiscation, unless otherwise provided for in the Special Part of this Code.

     3. Confiscation of hunting weapons, ammunition for them and other permitted hunting and fishing implements may not be applied to persons for whom hunting (fishing) is the main legitimate source of livelihood.

     4. Confiscation shall be applied by a judge and may be imposed in cases where it is provided for by the relevant article of the Special Part of this section as an administrative penalty.

     Part 1. One of the administrative penalties is confiscation. The Administrative Code, while allowing for the use of confiscation for a number of offenses, provides for the confiscation not of the offender's property at all, but only of those objects and implements with which administrative offenses are committed.

     The confiscation of an object that was the instrument of commission or the direct object of an administrative offense consists in the compulsory gratuitous conversion of this object into the property of the State.

     As follows from the meaning and content of this article, this measure is of a proprietary nature. Confiscation is carried out in respect of those items that are the instrument of commission or the subject of an offense. In the latter case, it is more likely that we are talking about the means of committing an offense, rather than the object of the encroachment.

     The instruments of committing an offense are weapons, tools, documents, and other items that can be used for the intended crime.  

     It should be noted that in practice there are often subjects that relate to the so-called means of committing an offense.  

     The means of committing an offense can be various objects and devices that can be used to facilitate the commission of an offense (for example, a motor and oars for a boat, a garrote, etc.). However, this definition is not reflected in the Administrative Code, which causes serious discrepancies in practice. Since such items in this case belong to the instruments of committing an offense, and, accordingly, are confiscated, which theoretically does not seem to be true (provided that the offender does not have ownership rights to them). Different practices and regulations of the Russian Federation. It should be noted that the Administrative Code of the Russian Federation does not contain a restrictive provision on the admissibility of liability in the form of confiscation only in relation to things owned by the violator. Thus, confiscation of tools or objects that do not belong to the violator by right of ownership is allowed for committing an administrative offense (see Resolution of the Constitutional Court of the Russian Federation No. 8-P of May 14, 1999 and Ruling of the Constitutional Court of the Russian Federation No. 202-O of November 27, 2001).

     The subject of an administrative offense in the broadest sense is the object to which the encroachment is directed, an administrative offense. In this sense, it should be distinguished from the instrument and means of committing an offense.

     According to the Code, confiscation is recognized only as an additional measure of administrative punishment (Part 3 of Article 42 of the Administrative Code).

     In the 2001 edition of the Administrative Code, there was such a rule as the retaliatory seizure of an object that was an instrument or the subject of an administrative offense, which was excluded from the 2014 Administrative Code. Confiscation should be distinguished from retaliatory seizure, since retaliatory seizure of an instrument of commission or an object of an administrative offense is associated with the reimbursement of their value to the former owner, and confiscation is carried out free of charge. Upon confiscation, the subject of personal property becomes state property.

     The seizure of an item withdrawn from circulation from the illegal possession of a person who has committed an administrative offense is also not considered confiscation. An item withdrawn from circulation is subject to State ownership or destruction.

     Items withdrawn from civil circulation have a special legal regime.

     Firstly, due to their special qualities, they cannot be freely transferred to other persons at all and, in fact, belong through civil rights to none of the participants in the civil turnover.

     Secondly, their list should be explicitly specified in legislative acts (paragraph 2 of Article 116 of the Civil Code) and, accordingly, is exhaustive. The classification of things as withdrawn from civil circulation is the exclusive competence of the legislative bodies of the State and cannot be expanded by a court or other law enforcement agency.

     Thirdly, in Kazakhstan, such facilities belong to the state and are included in the so-called list of exclusive state property (for example, paragraph 1 of Article 8 of the Water Code of the Republic of Kazakhstan). In some other legislative acts, things withdrawn from circulation are designated as state property (for example, paragraph 2 of Article 8 of the Forest Code, Article 3, paragraph 2 of Article 26 of the Land Code of the Republic of Kazakhstan).

     Fourthly, the commission of any transactions and other acts aimed at the alienation of these objects in relation to things withdrawn from civil circulation is unacceptable. Such acts must be declared invalid (paragraph 1 of Article 158 of the Civil Code, paragraph 3 of Article 8, Article 21 of the Water Code, paragraph 5 of Article 8 of the Forest Code).

     The execution of a decree on the confiscation of an object that was the instrument of commission or the direct object of an administrative offense is carried out by seizing the confiscated object and forcibly transferring it to the ownership of the State free of charge.

     For the commission of administrative corruption offenses, the sanctions of articles of Chapter 34 of the Administrative Code do not provide for the confiscation of property obtained as a result of an administrative offense. When resolving cases on such administrative offenses, the courts, in accordance with Part 3 of Article 822 of the Administrative Code, should decide the fate of physical evidence by transferring it to the appropriate institutions or destroying it.

     Part 2. 45 of the Administrative Code emphasizes that only an object that is in the personal property of the violator can be confiscated, unless otherwise provided for in the Special Part of the Administrative Code.  

     The Administrative Code of the Kazakh SSR stated that only an object that is in the personal property of the violator can be subject to confiscation, unless otherwise provided by legislative acts. For example, it was allowed to confiscate property that was the subject of a customs offense, regardless of whether the relevant goods and vehicles were owned by the violator or transferred to his management or use. This was due to the fact that the owner is not always a direct participant in customs relations.

     The 2014 Administrative Code resolved this legal situation in a different way, referring to specific sanctions of a Special part. However, the issue of ownership remains unresolved in a purely legal sense. Judicial practice on this issue also varies. The structures of administrative offenses, the sanctions of which provide for confiscation, contain general provisions regarding the subject and the regime of property.  

     However, such a revision of Part 2 of the said article makes it possible to state the possibility of confiscation of the instrument of commission of an offense or the object of an offense, regardless of whether they are owned by the violator or transferred to him for management or use, if the confiscation is explicitly stated in the sanction of the article of the Special Part of the Administrative Code.  

     Part 3. Administrative and legal confiscation is always special: it is carried out only in relation to things directly related to the offense.  

     For example, persons for whom hunting is their main source of livelihood may not be subject to confiscation of firearms and ammunition, as well as other hunting implements. The relevant item is being confiscated, not the property, which distinguishes this administrative measure from the criminal penalty.

     Part 4. According to Article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of their property, except by a court decision, as a result of which confiscation is appointed only by a judge. This type of penalty may be imposed in cases where it is provided for by the relevant article of the Special Part as an administrative penalty.

     For example, the sanction of Part 5 of Article 281 of the Administrative Code provides for additional administrative penalties in the form of confiscation of petroleum products, which are the direct objects of an administrative offense, and (or) income received as a result of the offense. The application of such an additional penalty is mandatory. Considering that the sanction explicitly provides for the possibility of confiscation of income received as a result of an offense, if it is not possible to confiscate petroleum products, confiscation should be applied to income from their sale in the amount established by the authorized body during the pre-trial proceedings.

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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