Commentary to article 754. Witness to the Code of the Republic of Kazakhstan On Administrative Offences  

     1. Any person who may be aware of the circumstances relevant to the case may be called as a witness in an administrative offense case, unless otherwise provided by law.

     2. The witness has the right: to refuse to testify against himself, his spouse or close relatives; to make statements and comments about the correctness of entering his testimony into the relevant protocol; to speak in his native language during the consideration of the case; to use the free help of an interpreter.

     3. The witness must appear at the summons of the judge, the body (official) in charge of the administrative offense case, 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.

     4. The witness is warned about administrative responsibility for evading or refusing to testify, giving deliberately false testimony to the body (official) authorized to consider cases of administrative offenses, and about criminal liability for committing these acts in court.

     5. If a witness refuses to appear at the summons of a judge, body (official) in charge of an administrative offense case, he may be brought by the internal affairs body (police) on the basis of a ruling by the judge, body (official).

     6. When interviewing a minor witness who has not reached the age of fourteen, the participation of a teacher or psychologist is mandatory. If necessary, the interview is conducted in the presence of the legal representative of such a witness.

     Part 1. A witness in an administrative offense case is any person who has information and knowledge about the presence or absence of legal facts, the establishment of which may become the basis for bringing to administrative responsibility. The key word in this definition is "anyone", that is, any person can potentially be a witness under certain conditions defined by law.  

     At the same time, the law provides for a list of persons who, although they have information relevant to the case of an administrative offense, cannot be witnesses in this administrative case. Such persons include:

     1) a person in respect of whom proceedings are being conducted on an administrative offense case;

     2) the spouse and close relatives of the person being held administratively liable;

     2) a person who, due to his age, physical or mental disabilities, is unable to correctly perceive the circumstances to be established in an administrative offense case and provide explanations about them.;

     3) the defender of the person against whom proceedings on an administrative offense are being conducted – regarding the circumstances that have become known to him in connection with the provision of legal assistance.;

     4) the clergyman – regarding the circumstances known to him from confession;

     5) the victim's representative – regarding the circumstances that have become known to him in connection with the performance of his procedural duties.

     The right of a citizen (citizen) not to testify against himself, as well as his spouse and close relatives is enshrined in paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, and is one of the basic principles of justice in our state.  

     The list of persons who are recognized as close relatives is set out in Article 1 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family".  

     Part 2. The witness has the scope of procedural rights and duties established by the norms of the Administrative Code and gives evidence in accordance with the procedure established by law. The testimony of a witness obtained in violation of the requirements of the law cannot be used as evidence in an administrative offense case. In the course of administrative proceedings, a witness has the right to:

     - to make statements and comments about the correctness of entering their testimony into the relevant protocol;  

     - when considering a case, speak in your native language;  

     - use the free help of an interpreter.

     Despite the fact that part 2 of this article does not provide for other rights and obligations from the point of view of legal technology, in fact they exist and are provided for in other norms of the Administrative Code in connection with the implementation by him, with his participation or actions or decision-making affecting his rights and legitimate interests. For example, to file petitions.  

     Part 3. The witness must appear at the summons of the judge, the body (official) in charge of the administrative offense case, give truthful testimony and certify with his signature in the relevant protocol or explanation the correctness of the testimony entered from his words.  

     Unfortunately, just as in criminal proceedings, the legislator does not give a clear definition of where the limits of information relevant to the case end, in connection with which the witness has an obligation to testify. It is not uncommon for this to be the subject of abuse by the relevant authorities and officials.  

     Part 4. A witness must be warned by a judge or an official considering the case about responsibility for knowingly giving false testimony, as well as for refusing to give evidence.  

     A witness's refusal to testify or knowingly giving false testimony during the consideration of a case of an administrative offense by an authority (official) authorized to consider cases of administrative offenses entails administrative liability in accordance with articles 658, 659 of the Administrative Code. Unlike the Administrative Code, a witness's refusal to testify or knowingly giving false testimony to an authority or official (not a court) in the field of criminal procedure is criminally punishable.  

     At the same time, if a witness knowingly gave false testimony or refused to testify during the judicial review of an administrative offense case, then he is subject to criminal liability in accordance with articles 420, 421 of the Criminal Code.  

     Part 5. In case of refusal or evasion from appearing before the body (official) considering the case of an administrative offense, the witness is subject to administrative responsibility under Article 654 of the Administrative Code, and in accordance with Article 790 of the Administrative Code may be brought on the basis of the determination of the body considering the case of an administrative offense.  

     Part 6. The legislator does not specify the age at which a person may act as a witness in proceedings on administrative offences.  

     The ability to correctly perceive an event and give evidence about it depends on the conditions of upbringing, the degree of development, and the nature of the perceived facts. Therefore, in necessary cases, minors may be witnesses, and in exceptional cases, minors (under 14 years of age)..  

     However, the degree of their development, the state of the sensory organs and other data necessary for a correct assessment of their indications must be clarified. To do this, parents and caregivers can be interviewed, and, if necessary, a psychological examination can be ordered.  

     Young witnesses are recommended to be interviewed in their usual environment, taking frequent breaks. When interviewing a witness under the age of 14, the presence of a teacher or psychologist is mandatory. As a rule, they can be school teachers, educators and psychologists with appropriate education.  

     If necessary, the interview is conducted in the presence of the legal representative of the minor witness.  

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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