Commentary to article 745. The victim of the Code of the Republic of Kazakhstan On Administrative Offenses
1. A victim is a natural or legal person who has suffered physical, property, or moral harm due to an administrative offense.
2. The victim has the right to get acquainted with all the case materials, provide explanations, present evidence, file petitions and challenges, have a representative, appeal the protocol on an administrative offense and the decision on an administrative offense, and enjoy other procedural rights granted to him by this Code.
3. The case of an administrative offense is considered with the participation of the victim. In his absence, the case may be considered only in cases where there is evidence that he was properly notified of the place and time of the case and if he did not file a motion to adjourn the case.
4. The victim may be questioned as a witness in accordance with the procedure provided for in Article 754 of this Code. If the victim is a legal entity, its representative may be interviewed as a witness.
Part 1. A natural or legal person who has suffered physical, property or moral harm as a result of committing an administrative offense is recognized as a victim in proceedings on administrative offenses.
Physical harm is the infliction of harm to human health, bodily injury, actions resulting in the development of any disease or poisoning, etc. Physical harm caused to the victim as a result of committing an administrative offense (for example, as a result of beatings during minor hooliganism), as a rule, is expressed in slight harm to his health. The legislator classifies offenses resulting in serious or moderate harm to health as crimes and criminal offenses.
Property damage involves a person suffering hardships related to the destruction or damage of his property, incurring monetary expenses, loss of material assets, etc. Property damage caused to a victim as a result of an administrative offense (for example, damage to a car due to a traffic violation) is mostly minor damage. When making a decision on an administrative offense, the cost assessment of damage is often extremely important, since for a number of offenses, the cost of property damage is generally the basis for distinguishing administrative offenses, crimes and criminal offenses.
In accordance with paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral harm", moral harm should be understood as moral or physical suffering experienced by a citizen as a result of unlawful violation, diminution or deprivation of personal non-property benefits and rights belonging to him. Moral suffering, as an emotional and volitional experience of a person, should be understood as feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc. Physical suffering should be understood as the physical pain experienced by a citizen in connection with the commission of violence or harm to health.
It should be noted that legal entities, unlike individuals, can only cause property and moral damage by an administrative offense. In case of causing such harm to a legal entity, all rights and obligations are exercised by a representative of this legal entity.
Part 2. An individual or a legal entity acquires the status of a victim in an administrative offense case from the moment when it is recorded as such in the protocol on an administrative offense or in the prosecutor's decision on the initiation of an administrative offense case. From this moment on, the person recognized as a victim has certain procedural rights and obligations.
In accordance with Part 2 of the commented article, the victim has the right to: get acquainted with all the case materials, provide explanations, provide evidence of the offense committed and the harm caused to him, file petitions and challenges, have a representative, appeal the protocol on an administrative offense and the decision on the case of an administrative offense, as well as enjoy other procedural rights provided for by the norms of the Administrative Code..
A victim who does not speak the language in which the proceedings are conducted in a case that is mute or deaf is provided with an interpreter or a person who has sign language skills, i.e. understands the signs of the mute or deaf. This allows the victim to actively participate in the consideration of the case, protect his rights and legitimate interests, and use the services of persons he trusts, which, of course, contributes to a full, comprehensive and objective consideration of the case.
Among the above-mentioned rights of the victim, one of the most important is the right to file petitions. Since the degree of physical or property damage inflicted on the victim must be taken into account when determining the severity of the offense and the measure of administrative punishment, in some cases it is desirable for the victim to conduct an appropriate examination.
Expert examinations and research are often necessary in other cases for a comprehensive, complete and objective investigation of all the circumstances of the case and to establish the guilt of the person against whom the proceedings are being conducted. In this regard, it is important that the victim has the right to file petitions, including for the involvement and hearing of a specialist, the appointment of an expert examination in the case, and to propose questions submitted for the expert's permission.
At the same time, the victim can file petitions already when drawing up a protocol at the stage of initiating an administrative offense case. The petition must be submitted to the victim in writing and is subject to immediate consideration by the judge, body, official in charge of the case.
Part 3. The victim has the right to participate in the consideration of an administrative offense case, which is an important guarantee of ensuring and protecting his rights and legitimate interests. Resolving the case in the presence of such an interested person as the victim ensures the adversarial nature of the process, allows you to more accurately clarify all the circumstances of the case that are important for the correctness of the ruling on the case. At the same time, a case of an administrative offense can also be considered in the absence of the victim, if there is evidence that the victim was properly notified of the place and time of the case, and he did not receive a request to postpone the case (the so-called absentee proceedings).
Part 4. The victim in the proceedings on administrative offenses is at the same time a witness to the very event of the administrative offense. In addition, establishing the nature and extent of the damage caused by the victim's testimony may be of great importance for characterizing this offense, and even qualifying it as a crime or a criminal offense. Taking all this into account, it is possible to interview the victim as a witness in accordance with art. 754 of the Administrative Code.
If the victim in the case of an administrative offense is a legal entity, then his representative, who is aware of any facts of the offense, may be interviewed as a witness.
In his testimony, the victim has the right to raise any issues if he considers that they are relevant to the case. He may, in particular, provide information on the aggravating circumstances, causes and conditions conducive to the commission of this offense. The victim's testimony may relate to the characteristics of the person being investigated, witnesses, relationships with and between them, etc.
For refusal or evasion from appearing before the body (official) considering the case, which led to the postponement of the proceedings in the case, the victim bears administrative responsibility in accordance with art. 654 of the Administrative Code.
For giving deliberately false testimony to the body (official) considering the case of an administrative offense, the victim bears administrative responsibility in accordance with art. 659 of the Administrative Code.
If the victim has knowingly given false testimony in the judicial review of an administrative offense case, then he is subject to criminal liability in accordance with art. 420 of the Criminal Code.
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
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
