Commentary to article 782. Collecting evidence The Code of the Republic of Kazakhstan on Administrative Offences
1. The collection of evidence shall be carried out in the course of proceedings in cases of administrative offences by carrying out the actions provided for in this Code.
2. After their assessment, the items and documents are attached to the case, which is recorded in the protocol on administrative offenses or a separate protocol is drawn up.
Acceptance of items and documents from persons who are participants in the proceedings on administrative offenses is carried out on the basis of a petition.
The collection of evidence, according to part 1 of the commented article, consists in the commission by the subjects of evidence of actions provided for by the Administrative Code. Such actions are: interviewing participants in administrative proceedings (Article 767 of the Administrative Code), appointment of an expert examination (Article 772 of the Administrative Code), inspection (Articles 794, 798 of the Administrative Code), seizure of items and documents (Articles 795, 799 of the Administrative Code), requesting additional information (Article 780 of the Administrative Code), etc. The Administrative Code and violation of these norms are unacceptable. Otherwise, evidence obtained in violation of the norms of the Administrative Code will be considered inadmissible as evidence.
To disclose the concept of "collecting evidence", it is necessary to define the content of this concept. There is no unequivocal opinion in the legal literature.
Thus, A.I. Vinberg defines the content of the concept of collecting evidence as "a set of actions for the detection, fixation, seizure and preservation of various evidence."
N.V. Terziev included in the concept of collecting evidence their discovery, collection, consolidation and examination of evidence.
M.S. Strogovich points out that the evidentiary process consists of the discovery of evidence, their consideration and procedural consolidation, verification and evaluation.
In order for evidence to be used as a means of proof, it should be collected, i.e., in one way or another, placed at the disposal of the subject of proof precisely as evidence, and isolated from the entire vast array of factual data based on their significance for the case.
The most optimal definition of the content of the concept of "collecting evidence" is the definition of A.I. Vinberg. Collecting evidence is a complex concept. It includes actions to detect, record, seize, and preserve evidence.
The discovery of evidence is the initial and necessary stage of their collection. The discovery of evidence includes: finding them, identifying them, paying attention to certain factual data that may acquire evidentiary value. At this stage of collecting evidence, the subject of proof is actually dealing with factual data, which, according to his assumption, can become evidence. This is due to the fact that the evidentiary value of the discovered data can be judged only after their investigation.
The next step in collecting evidence is the removal of evidence. After the subject of evidence has given a preliminary assessment in terms of the relevance of the identified information, he must use this information for evidence, attach it to the case, and also save it for the investigation and trial. The seizure may be carried out by way of a claim, the production of a seizure, during the production of a survey of participants in administrative proceedings.
The next step in collecting evidence is to record it, that is, to consolidate it in accordance with the procedure established by law. Administrative legislation provides for the preparation of a protocol of a procedural action as the main form of recording evidence. There are also auxiliary methods of recording evidence: photographing, audio and video recordings, etc. Evidence can only be those factual data that are recorded in one or more of the ways prescribed by current legislation. Fixation serves as a means of preserving evidence for subsequent verification and evaluation in evidence.
Preservation of evidence consists in taking measures to preserve the evidence itself or its evidentiary properties, and also aims to ensure that it can be used at any necessary time by the subject of evidence.
The collection of evidence is subject to a number of conditions:
- compliance with the requirements of administrative legislation, which implies the use of only those methods of collecting evidence that are provided for by law; the use of legitimate methods of collecting evidence only within the framework of their procedural procedure, which is established by law; collecting evidence only by a person authorized by law; objectivity, impartiality in collecting evidence;
- ensuring the completeness of the evidentiary material collected in the case. All procedural actions to collect evidence should be carried out efficiently and carefully; none of the evidence essential to the case should be outside the field of view of the subjects of evidence.
- the timeliness of actions to collect them, which consists in choosing the right moment to conduct a particular procedural action to collect evidence.;
- compliance with the necessary guarantees for the accuracy of information about the actual data received. This condition is provided by: the choice of reliable sources of evidentiary information; compliance with those tactical conditions and methods of conducting procedural actions that create the prerequisites for obtaining reliable results; the use of such technical means that make it possible to fully identify, accurately record and reliably preserve evidence.
Based on the above, it can be concluded that collecting evidence is a system of actions that ensure that the subject of proof perceives objectively existing traces of the event being studied, accompanied by the formation of a cognitive image in consciousness, as well as actions that ensure the preservation of this image through the procedural fixation of the results of perception.
Part 2. The procedure for attaching objects and documents to the materials of an administrative offense case differs in relation to the participants who collected them.
Thus, objects and documents, after their assessment by the subject of evidence represented by the judge, the body (official) in whose proceedings the case of an administrative offense is, are attached to the case by making an appropriate entry in the protocol on an administrative offense or by drawing up a separate protocol of the procedural action during which the object or documents are seized.
It is also necessary to indicate that the participants in the process are: the person against whom proceedings are being conducted on an administrative offense (Article 744 of the Administrative Code), the victim (Article 745 of the Administrative Code), the legal representatives of an individual (Article 746 of the Administrative Code), representatives of a legal entity (Article 747 of the Administrative Code), the defender (Article 748 of the Administrative Code), the representative the victim (Article 753 of the Administrative Code) is granted the right to present evidence, respectively, which they have previously collected.
In this case, according to Part 2 of this article, the acceptance of items and documents from persons who are participants in the proceedings on administrative offenses is carried out on the basis of a petition. This petition gives rise to the obligation of the person (body) in whose proceedings the case is, to resolve the petition. If it is satisfied, the document or object will acquire the status of evidence.
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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