Commentary to article 665. Failure to appear before the prosecutor, investigator and the body of inquiry, bailiff, bailiff The Code of the Republic of Kazakhstan on Administrative Offences
1. Failure to appear at the summons of the prosecutor, investigator, body of inquiry to give evidence, to the bailiff, bailiff on issues of enforcement proceedings, as well as refusal to give evidence or giving knowingly false testimony -
They impose a fine on individuals in the amount of three, and on officials in the amount of ten monthly calculation indices.
2. Failure to comply with the requirements of the prosecutor, investigator, inquirer, presented on the grounds and in accordance with the procedure established by law, -
entails a fine of twenty for individuals, fifty monthly calculation indices for officials, or administrative arrest for up to five days.
The general object of the administrative tort under consideration is the normal activity of the institution of state power.
The generic object is social relations that ensure the established procedure for the activities of the prosecutor, investigator, body of inquiry, bailiff and bailiff.
The objective side of part 1 of the administrative tort under consideration is expressed both in the form of an action and in the form of inaction. At the same time, responsibility comes for alternative actions.:
Inaction:
- failure to appear at the summons of the prosecutor, investigator, body of inquiry to give evidence;
- failure to appear before the bailiff or bailiff in matters of enforcement proceedings;
- refusal to testify in the case of an administrative offense.
Actions:
- giving deliberately false testimony in the case of an administrative offense.
Non-appearance in the explanatory dictionary of the Russian language means absence; non-arrival somewhere.
It should be noted that there is a specific procedure for summoning for questioning persons involved in criminal proceedings, regulated by the Criminal Procedure Code of the Republic of Kazakhstan. Thus, a witness, a victim, or a suspect are summoned by the person conducting the pre-trial investigation for questioning with a summons. The summons is handed over to the person being summoned for questioning, against receipt, or transmitted by means of communication.
At the same time, the person who received the summons must appear at the appointed time or notify the person conducting the pre-trial investigation in advance of the reasons for non-appearance, which must be valid (Article 208 of the CPC).
At the same time, according to the provisions of the Law "On the Prosecutor's Office", officials and citizens are summoned to the prosecutor's office in compliance with the status and competence of the prosecutor in such a way that the summoned person has sufficient time to appear in a timely manner and prepare for explanations, except in cases of emergencies or circumstances that are unavoidable under these conditions (Part 5 V. 45).
A valid reason for non-attendance may be the illness of the citizen himself or someone close to him, if there is no one else to take care of them, or the inability to appear due to independent objective circumstances. These are all kinds of weather, transport, man-made accidents and disasters, as a result of which it becomes difficult or impossible to overcome the distance from home to the specified place.
In turn, the procedure for summoning participants in enforcement proceedings to a bailiff or bailiff is regulated by the Law "On Enforcement Proceedings", "On Bailiffs":
- the participants in the enforcement proceedings are notified of the enforcement actions and measures of compulsory execution by notification or are summoned to the bailiff or to the place where the enforcement actions were committed by a subpoena.;
The duty of attendance of participants in administrative proceedings is also fixed in the Administrative Code.
In accordance with paragraph 3 of Article 35-1 of the Law "On Enforcement Proceedings and the Status of Bailiffs", valid reasons for the failure of a debtor duly notified of the summons are recognized as: illness, which makes it impossible for the debtor to appear, death of close relatives, natural disasters, and other reasons that deprive the debtor of the opportunity to appear at the appointed time. The debtor is obliged to notify the bailiff who summoned him if there are valid reasons preventing him from appearing on the call at the appointed time.
Thus, administrative liability under the part of the article in question occurs if the person has been duly notified and valid reasons for his non-appearance are not established.
Here is an example that occurred in Aktau in June 2017: "The Specialized Administrative Court of Aktau considered an administrative case against Mr. F., who received a summons from the bailiff to appear on May 08, 2017 at 3 p.m., to give an explanatory note on the execution of the judicial act and did not appear at the specified time without valid reasons.
The court decided to find Mr. F. guilty under Part 1 of Article 665 of the Administrative Code of the Republic of Kazakhstan (Failure to appear before the prosecutor, investigator and body of inquiry, bailiff, bailiff) and impose an administrative penalty in the form of an administrative fine in the amount of a three-month calculation index equal to 6807 tenge."
It should also be noted that one of the main problems in the recovery of alimony is the avoidance of debtors from appearing at an appointment with bailiffs.
The next type of inaction covered by the objective side of the considered part of the article is the refusal to testify in the case of an administrative offense.
Refusal to give evidence in the case of an administrative offense is expressed in a single fact of refraining from performing the required action – giving evidence.
At the same time, there is a competing provision in the Criminal Code of the Republic of Kazakhstan that provides for the responsibility of a witness and a victim for refusing to testify in court or during a pre-trial investigation (Article 421 of the Criminal Code).
It should be noted that the Law "On Enforcement Proceedings and the Status of Bailiffs" does not explicitly state the existence of administrative responsibility for refusing to testify. At the same time, the Administrative Code explicitly provides that a person involved in an administrative offense case as a witness is warned about administrative responsibility for refusing to testify to an authority (official) authorized to consider cases of administrative offenses, and about criminal liability for committing these acts in court. This obligation of other participants in the administrative proceedings is not specified in the Administrative Code.
At the same time, the Administrative Code also provides for circumstances in which a person may be exempted from testifying in an administrative case. Thus, no one is obliged to testify against himself, his spouse, or his close relatives, whose circle is determined by law; clergymen are not obliged to testify against those who confided in them in confession (art. 19).
The only action for which responsibility arises under part 1 of the article in question is giving deliberately false testimony in the case of an administrative offense.
A person participating in the case as a witness is obliged to truthfully report everything known to him about the case and answer the questions raised, certify with his signature in the relevant protocol the correctness of his testimony. This obligation of other participants in the administrative proceedings is not specified in the Administrative Code.
It should be noted that in the Criminal Code of the Republic of Kazakhstan there is a competing norm providing for the responsibility of a witness and a victim for knowingly giving false testimony (Article 420 of the Criminal Code).
The subjects of part 1 of the administrative offense under consideration are individuals and officials to whom summonses have been sent in accordance with the established procedure to the prosecutor, investigator, body of inquiry, bailiff or bailiff. In accordance with Article 30 of the Administrative Code, an official is held administratively liable if he commits an administrative offense in connection with non-performance or improper performance of his official duties.
The subjective side of part 1 of the administrative tort under consideration is characterized by guilt in the form of direct and indirect intent. The presence of direct intent means that a person is aware of the unlawful nature of his failure to appear or refuse to testify, as well as giving deliberately false testimony, anticipates the occurrence of harmful consequences from his actions and desires their occurrence.
Indirect intent provides that a person is aware of the unlawful nature of his act (failure to appear or refuse to testify, as well as knowingly giving false testimony), does not directly want harmful consequences to occur, but consciously allows them or treats them indifferently.
The objective side of part 2 of the administrative tort under consideration is expressed in the form of inaction - failure to comply with the requirements of the prosecutor, investigator, inquirer, presented on the grounds and in accordance with the procedure established by law.
Thus, in accordance with the Criminal Procedure Code of the Republic of Kazakhstan, the requirements of the criminal prosecution body (prosecutor, investigator, inquirer), presented in accordance with the law, are mandatory for all state bodies, organizations, officials and citizens and must be executed within the time limit set by them, but no later than three days.
Failure to comply with the requirements is understood as ignoring them, not providing appropriate written responses to the criminal prosecution authority.
The subject of part 2 of the administrative offense under consideration are individuals and officials.
In accordance with Article 30 of the Administrative Code, an official is held administratively liable if he commits an administrative offense in connection with non-performance or improper performance of his official duties.
An obligatory sign of the onset of administrative responsibility under part 2 of Article 655 of the Administrative Code is failure to comply with requirements without valid reasons.
The subjective side of part 2 of the administrative tort under consideration is characterized by guilt in the form of direct and indirect intent. The presence of direct intent means that a person is aware of the unlawful nature of failure to comply with the requirements of the prosecutor, investigator, inquirer, anticipates the occurrence of harmful consequences from his actions and desires their occurrence.
Indirect intent provides that a person is aware of the unlawful nature of failure to comply with the requirements of the prosecutor, investigator, inquirer, does not directly want harmful consequences to occur, but consciously allows them or treats them indifferently.
Based on part 1 of Article 684 of the Administrative Code, cases of administrative offenses provided for in Article 665 of the Administrative Code are subject to consideration by judges of specialized district and equivalent administrative courts.
According to part 1 of Article 804 of the Administrative Code, the protocol on this offense is as follows:
1) authorized officials of the internal affairs bodies;
subclause 30) authorized officials of the anti-corruption service;
Subclause 56) State bailiffs;
57) bailiffs and other court staff authorized by the Chairman of the court or the chairman of the court session;
68) authorized officials of the Economic Investigation Service.
It should be noted that in accordance with paragraph 2 of Part 1 of Article 126 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings", the protocol on an administrative offense may be drawn up by a bailiff (with the exception of a private one). Thus, private bailiffs, who have the majority of judicial acts in execution, are forced to submit a report to the judicial authorities when establishing administrative violations.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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