Commentary to article 777. Physical evidence  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The material evidence in the case of an administrative offense is objects that were the instrument or the subject of the offense or retained traces of it.

     2. If necessary, the material evidence is photographed or recorded in another way and attached to the case, which is recorded in the protocol on an administrative offense or other protocol provided for by this Code.

     3. The judge, the body (official) in charge of the administrative offense case must take the necessary measures to ensure the safety of material evidence before resolving the case on its merits, as well as make a decision on them after the case is considered.

     Part 1. Part 2 of Article 765 of the Administrative Code lists factual data of evidentiary value, with the help of which the main elements of the subject of evidence in the proceedings on an administrative offense provided for in Article 766 of the Administrative Code are established. One of these sources is physical evidence.  

     The Instructions "On the procedure for the seizure, accounting, storage, transfer and destruction of material evidence, documents in criminal cases, civil cases and cases of administrative offenses by the court, prosecutor's office, preliminary investigation, inquiry and forensic examination" provide a general concept of material evidence under the legislation of the Republic of Kazakhstan. This rule-making technique is questionable, since these definitions compete with similar ones set out in the relevant procedural codes.

     Thus, items obtained in a lawful manner are recognized as material evidence in criminal, civil and administrative cases, if there is reason to believe that they served as instruments of an offense or retained traces of an offense or were objects of criminal activity, as well as money and other valuables, objects and documents that may serve as a means of detection. violations, establishing the factual circumstances of the case, identifying the perpetrators, or refuting the charges or mitigating liability.  

     According to Part 1 of the commented article, administrative legislation refers to physical evidence:

     - objects that were the instrument of an offense;

     - objects that were the subject of an offense;

     - objects that have retained traces of the offense.

     These items contain the information necessary for a comprehensive, complete and objective clarification of all the circumstances of the case, the establishment of objective factual data, which will later serve to make a lawful and reasonable decision in the case of an administrative offense.

     The main distinguishing feature of physical evidence from other types of evidence is that they represent "not a verbal or coded (digital, graphic) description of the circumstances relevant to the case, but a sensually visual embodiment of their traces and signs preserved at the time of the proceedings."

     Thus, the appearance of traces and signs is possible as a result of interaction with the environment as a result of committing an administrative offense in the form of an action or omission.  

     Illegal actions are committed in the environment of the surrounding reality. These actions are interconnected with objects of the environment, things, objects and interact with them, as a result of which illegal actions leave traces on objects of the material world.

     An offense committed in the form of inaction can also cause changes in the state of the environment, for example, bringing things to an unusable state. At the same time, the absence of changes in the environment can also serve as evidence of the criminal inaction of the offender. For example, the failure to take measures to destroy wild cannabis.  

     The above allows us to conclude that physical evidence in a broad sense is objects of the material world, which, by their properties, appearance, shape, changes, location, affiliation and other features, are able to confirm or refute facts of evidentiary importance in the case of an administrative offense.  

     Objects of the material world can act as physical evidence in the following cases::

     - when items deviate from the requirements of technical, sanitary, epidemiological and other norms, rules, standards, and regulations. Such a deviation or a change in the condition of objects can be the result not only of human activity, but also due to natural processes. For example, the establishment of the fact of wear on the steering of a motor vehicle serves as the basis for recognizing a technically defective car as material evidence.;

     - if there are changes in these items related to the fact that an administrative offense has been committed. For example, a damaged car body, felled trees;

     - when prohibited by administrative and legal regulations, their creation and use. For example, the issue of friendly, bronze and financial bills in the territory of the Republic of Kazakhstan;

     - if they are found in a certain place and at a certain time, if these circumstances are relevant to the case. For example, a rifle and captured hunting products found in a citizen's possession on the territory of a hunting ground during the period of the hunting ban will be material evidence of illegal hunting.  

     The cases listed above, in which objects of the material world act as physical evidence, are not exhaustive. Physical evidence can be obtained and used in a wide variety of cases. It is worth saying that for this it is extremely important to comply with two basic conditions: the objects must carry the information necessary to establish the truth in the case, and their involvement in the case must be properly documented.

     Physical evidence may also include documents. The documents serve as physical evidence if they were:

     - objects of illegal actions;

     - means of preparation, commission or concealment of an administrative offense;

     - there are traces of illegal actions on them.

     If the value of a document in a case is determined by reference or authentication data, that is, based on the information contained in it, it is a document as one of the types of evidence.

     According to the source of origin, physical evidence is divided into initial, i.e. directly related to the event of the offense, and derivative — casts, impressions, photographs of the original physical evidence, preserving all their essential features.  

     Derived physical evidence is used in cases where the study of originals is difficult due to their bulkiness, fragility, inseparability from the environment, susceptibility to rapid deterioration, etc. Obtaining derived physical evidence is subject to compliance with certain guarantees of the reliability of their origin and quality. For example, if a footprint or fingerprint cannot be removed directly, the physical evidence (derivative) will be a copy taken under conditions that ensure the accuracy of reproducing the features of the footprint.  

     In relation to the circumstances to be proved, the physical evidence is indirect or direct.  

     In most cases, physical evidence is indirect evidence, so there are intermediate circumstances between them and the established fact. For example, damage to some parts of a car body as a result of a collision with another vehicle is not direct evidence of the driver's guilt. The driver's guilt will be proved if other circumstances are established, for example, in violation of the speed limit or maneuvering rules.  

     In other cases, physical evidence may be in the nature of direct evidence if there are no intermediate circumstances between the physical evidence and the established fact. For example, advertising products with erotic content.  

     Also, physical evidence can be of an accusatory and acquittal nature.  

     In general, physical evidence in administrative proceedings is of an accusatory nature, as it helps to establish the guilt of the person being held administratively liable. In very rare cases, physical evidence may be exculpatory. Such a source of evidence may be an expert opinion, which indicates that the seized items comply with GOST.  

     Physical evidence in the administrative process occupies an equal position with all other evidence and does not have a predetermined force.  

     There is a difference in the evaluation of physical evidence from other types of evidence. Thus, there is no subjective factor of information distortion in the evaluation of physical evidence, since, being objects of the material world, physical evidence objectively and adequately captures certain events or phenomena when, as in the testimony of a witness or victim, there is a factor of distortion of reality through the subjective perception of this reality.  

     However, one should not overestimate the evidentiary value of physical evidence along with other evidence, since "their role and significance can be correctly assessed only with the most careful and critical comparison with all the circumstances of the case, with all the evidence collected during the investigation and consideration of the case.

Part 2 of this article indicates the need to record and formalize the involvement of material evidence in the case of an administrative offense.  

     The main characteristics of the physical evidence are reflected in the protocol on an administrative offense or other protocol.  

     Analyzing the norms of the current administrative legislation, the description of the characteristics of the physical evidence can also be reflected in:

     - the protocol of personal inspection and inspection of things and objects that are with an individual;

     - protocol of inspection of vehicles, small vessels;

     - the protocol on the seizure of documents and belongings;

     - the inspection report.

     The description of the physical evidence in the protocol is the main way to record them. At the same time, physical evidence can be recorded using sound recording, video recording, film, photography and other scientific and technical means.

     The seized material evidence should be examined, if necessary, with the participation of a specialist, described in detail, indicating the quantitative and qualitative characteristics, all other individual features that make it possible to distinguish the object from the number of similar ones and determine its evidentiary value.

     Eg: individual signs of the physical evidence (serial number of the product), its specific features (color, shape, smell, etc.), traces on the object that are relevant to the case.

     It is also mandatory when describing physical evidence to indicate the time, place and conditions of the discovery of physical evidence, personal data of persons involved in the inspection or seizure of physical evidence (expert, witnesses).

     When describing the seized physical evidence, it is unacceptable to use terms that can only be reliably established after conducting a study, for example, blood.  

     Physical evidence, as a general rule, is packaged with the case file to ensure its safety. If the physical evidence has no individual characteristics, then it must be sealed.  

     If it is impossible to remove physical evidence due to their bulkiness or other reasons, they are recorded in the protocol of the procedural action using video, film, photography and other scientific and technical means, sealed and transferred to storage to persons living in the premises or representatives of the enterprise, organization on whose territory they are left. A receipt from the relevant person with an obligation to ensure its safety is attached to the case.  

     Part 3. The judge, the body (official) in charge of the administrative offense case is obliged to take the necessary measures to ensure the safety of material evidence before resolving the case on its merits, as well as to make a decision on them at the end of the consideration of the case.

     When storing physical evidence, measures are taken to ensure that the seized items retain the signs and properties by virtue of which they have the value of physical evidence in cases and materials, as well as the traces present on them, as well as the safety of the physical evidence itself, if they cannot be transferred to the custody of victims, their relatives, the parties or other persons., as well as organizations in accordance with the procedure established by law.  

     The rules for the seizure, accounting, storage, transfer and destruction of physical evidence are regulated by a joint order of the Minister of Justice of the Republic of Kazakhstan dated 12.11.1998, the Prosecutor General of the Republic of Kazakhstan dated 01.12.1998, the Chairman of the National Security Committee of the Republic of Kazakhstan dated 08.12.1998, the Minister of Finance of the Republic of Kazakhstan dated 22.12.1998, the Minister of Internal Affairs of the Republic of Kazakhstan dated 02.12.1998, the Minister of State Revenue of the Republic of Kazakhstan dated 28.12.1998. "On approval of the Instruction "On the procedure for seizure, accounting, storage, transfer and destruction of material evidence, documents in criminal cases, civil cases and cases of administrative offenses by the court, prosecutor's office, preliminary investigation, inquiry and forensic examination".  

     Upon completion of the consideration of the administrative offense case, the issues of the seized items and documents that were with the individual, the seized documents and property belonging to the legal entity must be resolved and indicated, while:

     1) items that were tools or objects of an administrative offense and belong to an individual or legal entity brought to administrative responsibility, in cases provided for by the sanctions of the norms of the Special Part of Section 2 of the Administrative Code, are confiscated or transferred to appropriate institutions or destroyed; in other cases, they are returned according to their affiliation.;

     2) items prohibited for circulation are transferred to the appropriate institutions or destroyed;

     3) items that are of no value and cannot be used are subject to destruction, and in cases of a petition from interested persons, they may be given to them.;

     4) documents that are material evidence remain in the file for the entire period of its storage or are transferred to interested parties.

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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