Commentary to article 765. Proofs  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Evidence in an administrative offense case is legally obtained factual data, on the basis of which, in accordance with the procedure established by this Code, the judge or the body (official) in charge of the administrative offense case establishes the presence or absence of an act containing all the signs of an administrative offense, the commission or non-commission of this act by a person in respect of whom proceedings are underway on an administrative offense, the guilt or innocence of this person, as well as other circumstances., important for the proper resolution of the case.

     2. The factual data specified in the first part of this Article shall be established by: explanations of the person brought to administrative responsibility; testimony of the victim, witnesses; conclusions and testimony of an expert, specialist; material evidence; other documents; protocols on an administrative offense and protocols of procedural actions provided for by this Code.

     When reviewing materials on administrative offenses, data obtained through the use of scientific and technical means may be used as evidence.

     3. Factual data must be declared inadmissible as evidence if they were obtained in violation of the requirements of this Code, which, by depriving or restricting the legally guaranteed rights of participants in the proceedings or violating other rules of the process, affected or could affect the reliability of the factual data obtained, including:

     1) using violence, threats, deception, as well as other illegal actions;

     2) using the misconception of the person participating in the process regarding his rights and obligations, which arose as a result of an unexplained, incomplete or incorrect explanation of them to him;

     3) in connection with the conduct of a procedural action by a person who does not have the right to conduct proceedings in this case;

     4) in connection with the participation in the procedural action of the person subject to recusal;

     5) in violation of the procedure for the procedural action;

     6) from an unknown source;

     7) using methods in the course of proof that contradict modern scientific knowledge.

     4. The inadmissibility of using factual data as evidence is established by a judge or an authority (official) conducting proceedings on an administrative offense on his own initiative or at the request of the participants in the process.

     5. Evidence obtained in violation of the law is considered to have no legal force and cannot be used as the basis for a decision on the case, as well as used to prove any circumstance in the case, except for the fact of relevant violations and the guilt of the persons who committed them.

     Evidence in an administrative offense case is legally obtained factual data, on the basis of which, in accordance with the procedure established by the Code of Administrative Offenses, the judge or the body (official) in charge of the administrative offense case establishes the presence or absence of an act containing all the signs of an administrative offense, the commission or non-commission of this act by a person in in respect of which proceedings are being conducted in the case of an administrative offense, the guilt or innocence of this person, as well as other circumstances that are important for the proper resolution of the case.

     The advancement of an administrative case from one stage to another, within the stages, the adoption of procedural decisions on the case, the production of procedural actions, is possible only on the basis of evidence (factual data).  

     A ruling in a case cannot be based on assumptions and is made only on condition that during the review the guilt of an individual (for example) in committing an administrative offense is confirmed by the totality of evidence examined by the court.

     Part 1 of the article says that the evidence is "factual data". The concept of "factual data", in this context, is equivalent to the concept of information (information). Such a generalization is appropriate only in the broadest sense. However, in most cases, the administrative practice of law enforcement agencies does not distinguish between these categories either in protocols or in resolutions of authorized bodies (officials) and courts. In practice, these "factual data" become known from the explanation of the person against whom proceedings on an administrative offense are being conducted, the testimony of the victim, witness, expert opinions, during the inspection of the scene, things, examination of physical evidence, documents, etc.

     Any "factual data" (with rare exceptions explicitly stated in the Administrative Code) can become evidence in a case if they are related to an event that occurred, if on their basis it is possible to establish any circumstance that is relevant for the proper resolution of the case.  

     The legislator has established a mandatory condition for recognizing factual data as evidence – their lawful receipt.  

     In the theory of evidence, the concept of "source of evidence" is used. The sources of obtaining "factual data" are: the person against whom proceedings are being conducted in the case of an administrative offense, the victim, witness, specialist, expert, as well as objects of the surrounding world, etc.

     In relation to each source of obtaining "factual data", the law establishes the procedure for their collection (survey, inspection, examination, etc.). A separate regulation is devoted to each (articles 791-795, 772-780, etc.).  

     On the basis of legally obtained factual data, the judge or the body (official) in charge of the administrative offense case establishes the circumstances relevant for the proper resolution of the case. In fact, factual data is the foundation and building material of the entire administrative process.

     The legislator has fixed the circumstances to be proved in the case of an administrative offense in art. 766 of the Administrative Code.  

     Based on the above, we believe that the evidence in the administrative process is characterized by the following features:

     1) Evidence is factual data related to the facts sought.;

     2) evidence is factual data obtained by an authorized body (official), a court in compliance with a certain procedural form from sources provided by law.

     Theoretically, evidence can be classified on several grounds:  

     1) according to the source from which information about the facts (factual data) is obtained;

     2) according to the method of formation (formation) of evidence;

     3) by the nature of the connection between the evidence and the sought fact.

     According to the source from which the court receives information about the facts, the evidence is divided into personal (explanations of the parties and other persons legally interested in the outcome of the case, testimony of witnesses, expert opinions) and substantive (written and physical evidence, audio, video recordings).

     According to the method of formation, proofs are divided into initial and derivative ones. A proof is considered initial if information about the facts is obtained from the original source. Such evidence includes the testimony of a witness, the original document, etc. The initial evidence is characterized by the fact that there is no intermediate link between it and the fact it testifies to (there is no other evidence). This proof is created under the direct influence of the fact to be proved. A derivative is a proof that reproduces the content of another proof. This is the so-called "second-hand" information about facts. An example of such evidence may be the testimony of a witness who learned about the fact from another person.

     By the nature of the relationship between the evidence and the sought fact, they are divided into direct and indirect. Direct evidence is those that are unambiguously linked to the sought-after fact, which makes it possible to draw only one conclusion about the sought-after fact. Indirect evidence is connected with the sought-after fact by a multi-valued connection, as a result of which it becomes possible to draw various conclusions about the sought-after fact.  

     Items that served as tools or retained traces of an offense, or were the objects of illegal actions, as well as things or other valuables obtained unlawfully, and other items that are important for the proper resolution of an administrative offense case (art. 777 of the Administrative Code) are recognized as material evidence.

     Documents are recognized as evidence in a case if the information stated or certified in them by organizations, officials and individuals is relevant to the case of an administrative offense (art. 779 of the Administrative Code). In this sense, documents can be both independent evidence and physical evidence (Article 777 of the Administrative Code).  

     Evidence may be provided by the person in respect of whom the administrative process is being conducted, the victim, any natural and legal person and their representatives.  

     The collection of evidence and the proving of a person's guilt is the exclusive right of the authorities conducting proceedings in cases of administrative offenses, based on publicity as the main, undeclared principle of administrative law.

Part 2 of Article 765 of the Administrative Code establishes the range of sources of evidentiary information, more specifically, the initial forms of its extraction. In the theory of law, they are referred to as sources of evidence. These include: explanations of the person brought to administrative responsibility; testimony of the victim, witnesses; conclusions and testimony of an expert, specialist; material evidence; other documents; protocol on an administrative offense, protocol of procedural actions).  

     If factual data is obtained from sources not provided for by law, they cannot be recognized as evidence in administrative proceedings.

     Each piece of evidence obtained in the course of administrative proceedings is subject to assessment in terms of relevance, admissibility, and reliability, and all the evidence collected in their entirety is assessed in terms of its sufficiency to make a decision on an administrative offense case.

     Evidence in an administrative proceeding is assessed in accordance with Article 784 of the Administrative Code. These four criteria are basic and fundamental from the point of view of the theory of judicial evidence. Their importance cannot be overestimated.  

     The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5 "On the court's decision in the case of an administrative offense" determines the validity of the decision by the extent to which its content is inextricably linked to evidence that meets the requirements of the law on their relevance, admissibility and reliability.

     Evidence relating to the case of an administrative offense is recognized, through which circumstances relevant to the case are established. Evidence that is not capable of establishing or refuting the circumstances to be proved is not considered relevant.

     Evidence obtained in accordance with the procedure established by the Administrative Code and from sources provided for by law is considered admissible.  

     Part 3. Evidence is considered inadmissible if it is obtained in violation of the constitutional rights and freedoms of a citizen or the requirements of the Administrative Code related to the deprivation or restriction of the rights of participants in administrative proceedings or violation of other rules of administrative procedure.

     The deprivation of the rights of a participant in an administrative proceeding implies the action (inaction) of a judge (court) or an authority (official) in charge of an administrative offense case, which is expressed in the creation of conditions for the impossibility of exercising the rights of a participant in the process provided for by law and guaranteed by the State. For example, the right to legal assistance implies the participation of a defender (lawyer) in the proceedings, but the judge or body (official) unreasonably refuses the request of the participant in the process to invite a defender. Even in cases where such assistance is directly prescribed by law – art. 749 of the Administrative Code.  

     The restriction of the rights of a participant in administrative proceedings implies the action (inaction) of a judge (court) or an authority (official) in charge of an administrative offense case, which is expressed in creating conditions under which a participant in the process cannot fully exercise the rights of a participant in the process provided for by law and guaranteed by the State. For example, when exercising the right to legal assistance, a judge or an authority (official) restricts the time for a conversation between a participant in the process and his lawyer.  

     The legislator highlights the grounds for recognizing evidence as inadmissible.

     The norm of paragraph 1) of Part 3 of the article excludes the possibility of using factual data obtained with the use of violence, threats, deception, as well as other illegal actions.  

     In accordance with Article 17 of the Constitution of the Republic of Kazakhstan, no one should be subjected to torture, violence, or other cruel or degrading treatment or punishment.  

     Thus, factual data is unacceptable as evidence if it is obtained using violence, which can be physical or mental: beatings, bullying, the use of handcuffs, a gas mask; binding, dissemination of information that may harm the rights and interests of participants in the administrative process and their loved ones, etc.  

     Threats (intimidation) and deception are considered illegal actions.  

     A threat is an illegal way of psychologically influencing an interrogated person or expert. The most common forms of it are the threat of arrest, bringing relatives and friends to justice, the threat to use physical violence, and to retrain actions under the article of the Administrative Code, which provides for a more severe punishment.

     Deception refers to a false idea of something, i.e. misleading. Deception can take two forms: active and passive. Active deception is the communication of false information to a person that distorts the perception of certain facts and events. Passive deception is omission of the truth, failure to disclose information about facts or circumstances that should be disclosed.

     Other illegal actions include the use of blackmail, hypnosis, the use of false evidence, and a false promise to end the case. Other illegal actions should also include the use of physical violence against the interrogated person (the use of handcuffs, a gas mask, tying, beating, beatings, etc.), and the deprivation of liberty of the interrogated person without legitimate grounds.  

     Blackmail is one of the types of mental coercion, which consists in intimidating an interrogated person or expert in order to force him to give evidence or a conclusion. For example, a threat to disclose information that shames the interrogated person or expert, a threat to disclose other information, the disclosure of which may cause significant harm to the interests of the victim, etc.

     The commission of these actions forms part of a criminally punishable act.

     The norm of paragraph 2) of Part 3 of the article is aimed at preventing cases of non-explanation, incomplete or incorrect explanation of the rights and obligations of the participant in the administrative process. In this regard, in the case of an administrative offense, the judge or the body conducting the proceedings, in accordance with Articles 803, 818, 829-10, 838 of the Administrative Code, are required to clarify the rights and obligations of the persons involved in the case. At the same time, explain not only the general meaning of the rights and obligations granted, but also reveal their specific content and the mechanism of their implementation. When explaining the rights and obligations, the judge or the body conducting the proceedings should ask questions that will determine whether the participant in the process has understood the content of his rights and obligations.

     The norm of paragraph 3) of Part 3 of the article excludes the possibility of using factual data obtained during the production of procedural actions by a person who is not authorized to produce them.  

     The current legislation assigns the performance of procedural actions in the case of an administrative offense to the person authorized to consider cases of administrative offenses. The list of authorized persons is established by Articles 682, 684-735 of the Administrative Code.

     The grounds for the recusal of a person performing procedural actions who does not have the right to conduct proceedings are fixed in Articles 814-815 of the Administrative Code.

     The grounds for disqualification of persons participating in the procedural action who are subject to disqualification are fixed in Articles 762-763 of the Administrative Code.  

     The norm of paragraph 5) of Part 3 of the article regulates the most common violation: deviation from the procedure of procedural actions. This is due to the fact that each procedural action has goals, objectives, a beginning, an end, a circle of participants, a certain sequence of proceedings, and an order of execution.  

     The norm of paragraph 6) of Part 3 of the article excludes the possibility of using factual data obtained from an unknown source, since it is not possible to verify their reliability. For example, guarantees of the reliability of testimony include administrative liability for refusing to testify or evading, and for giving false testimony to a witness, victim, expert opinion, or incorrect translation provided for in Articles 658 and 659 of the Administrative Code.

     The norm of clause 7) of Part 3 of the article excludes the use of methods in the course of evidence that contradict modern scientific knowledge. The Administrative Code allows the use of scientific and technical means in the proof process and recognizes them as permissible if they are directly provided for by law, are scientifically sound, ensure the effectiveness of the proceedings, and are safe.  

     In addition, practice has developed other provisions based on certain norms of administrative legislation that detract from the evidentiary value of factual circumstances (case materials). So, P. 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of application by courts of the norms of the General Part of the Code of Administrative Offences of the Republic of Kazakhstan" states that in order to carry out the tasks of protecting the rights, freedoms and legitimate interests of man and citizen, public order and security and others listed in the first part of Article 6 The Administrative Code of Administrative Offenses, as well as the prevention of their commission, the legislation on administrative offenses establishes the grounds and principles of administrative responsibility, the violation of which, depending on the nature and materiality, entails the recognition of the proceedings in the case as invalid, the cancellation of decisions made during such proceedings, or the recognition of materials collected that do not have the force of evidence.

Evidence is considered reliable if it is true. Only reliable evidence can be used as the basis for procedural decisions taken by the court, the body (official) in charge of the administrative offense case. This is explicitly prescribed in paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5 "On the court's decision on the case of an administrative offense."

     Evidence is considered sufficient when its totality makes it possible to establish the circumstances to be proved in an administrative offense case.

     The evidence collected in the case of an administrative offense is subject to comprehensive, complete and objective verification by the court, the body (official) in charge of the administrative offense case.

     Part 4. The inadmissibility of using factual data as evidence is established by a judge or an authority (official) conducting proceedings on an administrative offense on his own initiative or at the request of the participants in the process.

     The recognition of evidence as inadmissible on the initiative of a judge or an authority (official) on its own initiative occurs in the process of evaluating evidence in accordance with art. 784 of the Administrative Code. This circumstance in no way detracts from the effect of the undeclared principle of competition and equality of the parties, but serves an objective, complete and comprehensive study of the case materials.

     If a petition is filed on the initiative of the participants in the process, the burden of proving the inadmissibility of the evidence is placed on the initiator. However, this does not prevent the court or the authorized body (official) considering the case from expressing its position on this issue. The petition is filed during the judicial review of the case in written or oral form. A written petition is attached to the case, and an oral one is entered into the record of the trial. The decision on the petition is made during the judicial review of the case.  

     Part 5. When establishing the fact of obtaining evidence in violation of the law, the evidence is deemed to be null and void and cannot be used as the basis for a decision on the case, as well as used to prove any circumstances in the case. Upon detection of this fact, the judge issues a private decision, which is sent to the appropriate body for consideration and action. This approach is universal for all three types of legal proceedings.  

     This provision of the law is a guarantee of the realization of human and civil rights proclaimed by the Constitution of the Republic of Kazakhstan: the right to recognition of his legal personality, the right to defend his rights and freedoms in all ways that do not contradict the law, the right to judicial protection of his rights and freedoms (Article 13 of the Constitution of the Republic of Kazakhstan), everyone is equal before the law and the court (Article 14 of the Constitution of the Republic of Kazakhstan) Human dignity is inviolable, and no one should be subjected to torture, violence, or other cruel or degrading treatment or punishment (Article 17 of the Constitution of the Republic of Kazakhstan).

     The recognition of evidence as having no legal force entails a number of legal consequences in the form of termination of proceedings, changes in the scope or qualification of the act, etc.

     However, these evidences can be used as evidence of the fact of the relevant violations during their collection and the guilt of the persons who committed them. Persons who have committed violations in the collection of evidence during administrative proceedings are subject to disciplinary, administrative, or criminal liability in accordance with applicable law.  

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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