Commentary to article 779. Documents The Code of the Republic of Kazakhstan on Administrative Offences
1. 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.
2. The documents may contain information recorded in both written and other forms. Documents may include, among other things, materials containing computer information, photographs and films, sound and video recordings, received, requested or submitted in accordance with the procedure provided for by this Code.
3. A driver's license for the right to drive a vehicle is a document that is relevant to the case only in cases of verifying its authenticity and making a decision to deprive an individual of the right to drive a vehicle.
4. The judge, the body (official) in charge of the administrative offense case must take the necessary measures to ensure the safety of documents before resolving the case on its merits, as well as make a decision on them after the case is considered.
5. In cases where the documents have the features specified in Article 777 of this Code, they are material evidence.
Part 1. A document is an object of the material world on which organizations, officials or individuals have recorded information relevant to the case of an administrative offense in the manner accepted for the document.
The document is acceptable as proof if a number of conditions are met:
- the information in these documents is stated or certified by organizations, their officials or individuals;
- the information contained in the documents has legal significance, that is, on the basis of this information (data), the presence or absence of an administrative offense event, the guilt of the person being held administratively liable, as well as other circumstances relevant to the proper resolution of the case, including those listed in art. 766 of the Administrative Code, are established.;
- the documents used as sources of evidence have been obtained, compiled, and created in accordance with the procedure established by law, that is, there must be information about how the document got into the case file (requested as a result of a request, or a protocol drawn up); there must be details of the official document or information about the citizen from whom the document originates; references to the source of the author's awareness (references to the name of instructions, rules, other regulations, etc.).
Part 2. In proving administrative cases, written documents are most common. This is a publicly available and widespread way of recording information that is directly presented and perceived not only by an official, but by any person without any technical devices, but not the only one. The documents may contain information recorded not only in writing, but also in another form.
In the context of worldwide informatization, the development of electronic communications, the creation of computer databases, and the introduction of electronic document signatures, a different method of document fixation, other than simple written form, is playing an increasingly important role. In this regard, part 2 of this article includes not only written documents, but also materials containing computer (digital) information, photographs and films, sound and video recordings.
Materials containing computer information should include information provided in an electronic format, that is, in a form suitable for human perception using electronic computers, as well as for transmission over information and telecommunication networks and processing in information systems.
These include an electronic document transmitted through electronic document management.
Video recording in the specialized literature is defined as an electronic recording of visual information presented in the form of a video signal or a digital video stream on a physical medium in order to preserve this information and enable subsequent reproduction.
Cinematography is the production on film of a series of consecutive frames with images of the object being shot in various phases of its movement. This source of evidence is top-down (in terms of frequency of use and relevance).
Currently, film is used only in professional cinematography, and video recordings are more relevant to administrative legislation.
The main feature of audio and video recordings is manifested in their substantive and material elements. The meaningful element of an audio recording is the expression of information in sound form, and for a video recording it is the visualization of information, both accompanied and unaccompanied by sounds.
A photograph is a fixed image.
The material element lies in the fact that the creation of audio recordings, videos and photographs is impossible without the use of special recording equipment.
Evidentiary information in this form must be obtained, requested or submitted in accordance with the procedure established by administrative legislation. When submitting documents at the initiative of an enterprise, organization, or their official, the submitted documents must be accompanied by a cover letter; when submitting documents at the initiative of an individual, they may be attached to the materials during the interview of the victim, witness, or person in respect of whom proceedings are underway on an administrative offense.
If documents are requested on the initiative of a judge, body (official) in charge of an administrative offense case, the documents are requested by sending an official request to organizations, enterprises, and their officials; documents may be withdrawn from individuals, and a protocol is drawn up.
Part 3. This provision is also a very positive innovation of the 2014 Administrative Code. A driver's license for the right to drive a vehicle is a document that is relevant to the case only in cases of verifying its authenticity and making a decision to deprive an individual of the right to drive a vehicle. That is, the withdrawal of this document occurs in two cases:
1) when the police officer has a question about the authenticity of the driver's license.
The authenticity of a document is its compliance with the system requirements within which it operates.
The forms and samples of the driver's license were approved by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated December 8, 2014 No. 87 "On approval of forms and samples of driver's license forms and vehicle Registration Certificate".
2) when an administrative offense has been committed, for which the sanction provides for the deprivation of an individual's right to drive a vehicle.
Part 4. The judge, the body (official) in charge of the administrative offense case is obliged to take the necessary measures to ensure the safety of documents before resolving the case on the merits, as well as to make a decision on them at the end of the consideration of the case.
The rules for the seizure, accounting, storage, transfer and destruction of documents 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.
Part 5. Documents become physical evidence if they are:
- objects of illegal actions;
- means of preparation, commission or concealment of an administrative offense;
- there are traces of illegal actions on them.
This is stated in more detail in the commentary to Article 777 of the Administrative 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
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