Commentary to article 792. Inspection of vehicles and small vessels The Code of the Republic of Kazakhstan on Administrative Offences  

     1. An inspection of a vehicle, small vessel, that is, an inspection of a vehicle, small vessel, carried out without violating their structural integrity, is carried out in order to detect and seize instruments of commission of an offense or objects of an administrative offense.

     2. The inspection of vehicles and small vessels is carried out by authorized officials listed in Article 787 of this Code, with the participation of two witnesses.

     In exceptional cases (in hard-to-reach areas in the absence of adequate means of communication or when, for other objective reasons, it is not possible to involve individuals as witnesses), inspection of vehicles, small vessels, that is, an inspection carried out without violating the structural integrity, can be carried out without the participation of witnesses, but with the use of technical means of fixation. its progress and results.

     3. The grounds for the inspection of vehicles and small vessels are:

     1) there are sufficient grounds to believe that a vehicle or small vessel contains instruments of commission or objects of an administrative offense;

     2) driving a vehicle by a driver who is in a state of alcoholic, narcotic, or substance abuse intoxication, if the driver disobeys the lawful requirements of authorized officials;

     3) carrying out measures by authorized officials to detain wanted vehicles and small vessels;

     4) if there are sufficient grounds to believe that the cargo transported on a vehicle or small vessel does not comply with the submitted documents;

     5) the need to verify the components and assemblies of the vehicle, small vessel with the data according to the submitted documents;

     6) identification of malfunctions of a vehicle or small vessel, in the presence of which operation is prohibited;

     7) detention of a vehicle, prohibition of its operation.

     4. Inspection of vehicles and small vessels is carried out in the presence of the person in whose possession they are, or his representative or the person operating the vehicle or small vessel on a legal basis. In urgent cases, they may be searched in the absence of the specified persons.

     5. If necessary, photographs, films, and video recordings are made for the purpose of fixing objects identified during the inspection of vehicles and small vessels.

     6. A protocol is drawn up on the inspection of vehicles and small vessels. A copy of this protocol shall be handed over to the person in possession of the vehicles or small vessels subjected to inspection, or to his representative or the person operating the vehicle or small vessel on a legal basis.

     7. The inspection protocol for vehicles and small vessels shall specify the date and place of its compilation, the position, surname and initials of the person who drew up the protocol, information about the identity of the owner of the vehicle, small vessel subjected to inspection, information about the type, make, model, state registration number, and other identification features of the vehicle, small vessel.

     8. An entry is made in the inspection report on the use of photography, filming, video recording, and other established methods of document recording. The materials obtained during the inspection using photographs, films, video recordings, and other established means of recording physical evidence are attached to the relevant protocol.

     9. The protocol of inspection of vehicles and small vessels is signed by the official who drafted it, the person in respect of whom the case is being conducted, the owner of the vehicle, small vessel subjected to inspection, or his representative. If the person against whom the proceedings are being conducted, the owner of the vehicle, the small vessel that has been inspected, or his representative refuses to sign the protocol, an appropriate entry is made in it.

     Part 1. An inspection of a vehicle or small vessel differs fundamentally little from a personal search and an inspection of items carried by an individual. In both cases, the purpose of the inspection is to detect the instruments of commission or objects of an administrative offense.  

     The only difference lies in the object of the inspection: in the first case, it is a vehicle or a small vessel, and in the second – an individual or his belongings.  

     An inspection of vehicles and small vessels is a compulsory inspection of vehicles without violating the structural integrity of small vessels in order to detect instruments of commission or objects of an offense that can be recognized as evidence in an administrative offense case.

     In accordance with paragraph 28) of paragraph 1 of the Law of the Republic of Kazakhstan dated April 17, 2014 "On Road Traffic", a vehicle is a device designed to transport people, goods or equipment installed on it on roads.  

     64 of the said law lists the types of vehicles subject to state registration in the Republic of Kazakhstan.:

     1) passenger cars, trucks, buses, including special vehicles and trolleybuses made on their basis;

     2) motorcycles, tricycles, ATVs and mopeds with a maximum design speed of more than fifty kilometers per hour;

     3) trailers intended for movement in a train with cars.

     The listed types of vehicles are subject to inspection, the procedure for which is regulated by this article. Trams may also be subject to inspection, as they are also vehicles.  

     It should be noted that this category of vehicles does not include such modes of transport as air, rail and sea. However, small vessels are an exception, which are subject to inspection in accordance with the procedure of this article, although they are not vehicles.  

     According to subclause 45) of clause 1 of the Law of the Republic of Kazakhstan dated July 6, 2004 "On Inland Waterway Transport", a small vessel is a vessel with a length of no more than twenty meters with a permissible number of people on board of no more than twelve people, except for vessels built or equipped for fishing, cargo transportation, towing, conducting search, exploration and mining, construction, track, hydraulic engineering and other similar works, pilotage and icebreaking, as well as measures to protect water bodies from pollution and clogging.

     In accordance with part 2 of the commented article, the same officials who are authorized to carry out a personal search and an inspection of items with an individual are entitled to inspect a vehicle or a small vessel. The list of such officials is contained in Article 787 of the Administrative Code.  

     Inspection of vehicles and small vessels is carried out in the presence of their owner or his representative, or the person operating the vehicle or small vessel legally (if appropriate documents are available), as well as two witnesses.

     In some cases, the inspection of vehicles and small vessels may be carried out in the absence of the owner (owner). An authorized person, in the presence of two witnesses, may subject a vehicle or small vessel to inspection in cases where:

     - it was not possible to identify the owner of the vehicles and small vessels;

     - there is information about the presence of explosive devices or other objects in them that endanger the health and life of others.  

     In part 2 of the commented article, cases of such an inspection are specified.  

     Without the participation of witnesses, an inspection of a vehicle or small vessel can be carried out in hard-to-reach areas, as well as in deserted places far from highways and other highways, settlements, ports, etc.  

     In addition to these situations, the problem of attracting witnesses to participate in the inspection also exists at night, and, accordingly, the legislator allows in this case to inspect a vehicle or small vessel without the participation of witnesses, but with the mandatory use of technical means of fixation.  

     In all the above cases, the possibility of the absence of witnesses during the inspection is justified by the difficulty of ensuring their presence due to various circumstances. Therefore, the legislator resorted to an alternative to the participation of witnesses in the inspection in the form of the use of technical means of recording this procedural action.  

     Part 3. For the first time in the entire existence of the Administrative Code, the current version of the commented article includes a list of grounds for conducting an inspection of a vehicle or small vessel.  

     In the previous edition of the Administrative Code of 2001, the specified list was not specified. In accordance with Part 3 of the commented article, the grounds for conducting an inspection of vehicles and small vessels are:

     1. There are sufficient grounds to believe that a vehicle or small vessel contains instruments of commission or objects of an administrative offense.  

The presence of sufficient grounds means that an official has reliable information about the presence in a vehicle, small vessel of an instrument of commission or objects of an administrative offense, and therefore is obliged to carry out an inspection in order to prevent or suppress the offense and bring the perpetrator to justice.  

     At the same time, the official is not obliged to report to the owner of the vehicle or small vessel on the sources of the above information, and the owner of the vehicle or small vessel has no right to interfere with the inspection and is obliged to comply with all legal requirements of the person conducting the inspection.  

     If a person present at the inspection believes that any violations were committed by an official during the inspection, he has the right to subsequently appeal the actions of the official to the relevant authorities.  

     2. Driving a vehicle by a driver who is in a state of alcoholic, narcotic, or substance abuse intoxication, if the driver disobeys the lawful requirements of authorized officials.  

     When drunk, a person is more at risk of committing offenses, unlike a sober person. Disobeying and sometimes resisting the lawful demands of authorized officials is also most often the case with drivers who are intoxicated.  

     Inspection of a vehicle, a small vessel operated by an intoxicated driver, very often contributes to the detection and suppression of an offense being committed, a previously committed offense, and sometimes to the prevention of an offense being prepared. A driver who is intoxicated has much more determination to commit an offense than a sober one, and also less fear of being held responsible for the act committed.  

     Disobeying the lawful demands of officials immediately raises the suspicion that the driver, for some reason, is afraid of checking the documents for the vehicle, or is trying to hide the fact that he is driving while intoxicated, or prevents the detection of the offense he is committing or has committed.  

     For example, the driver did not comply with the lawful requirement of the inspector of the highway patrol service to stop the vehicle in order to conceal the fact that he was transporting weapons, explosives, narcotic drugs, as well as tools or objects of a previously committed offense. That is why the legislator has included this item in the list of grounds for inspection of vehicles and small vessels.  

     3. Carrying out measures by authorized officials to detain wanted vehicles and small vessels.  

     This paragraph applies to cases where a vehicle or small vessel is hijacked, or if the driver of the vehicle has fled the scene of a traffic accident.  

     In such cases, authorized officials carry out a set of measures aimed at searching for the stolen vehicle, identifying and detaining the perpetrators of the theft.  

     One of these measures is the inspection of vehicles and small vessels.  

     4. If there are sufficient grounds to believe that the cargo transported on a vehicle or small vessel does not comply with the submitted documents.  

     In this case, we are talking about the fact that the driver can provide the authorized official with documents for the transported cargo containing false information.  

     For example, a vehicle may carry more cargo than is indicated in the documents for it.  

     Thus, the driver can hide the fact of exceeding the maximum permissible weight of the transported cargo, allowed by the manufacturer of the vehicle, small vessel.  

     There are cases when, instead of the cargo indicated in the documents, a completely different cargo is transported on a vehicle or small vessel, or objects or substances seized from free civilian circulation (weapons, ammunition, explosives, radioactive, highly toxic substances, narcotic drugs, etc.) are transported together with the cargo indicated in the documents.  

     In order to identify the above-mentioned offenses, officials may inspect vehicles and small vessels.  

     5. The need for reconciliation of components and assemblies of a vehicle, small vessel with data according to the submitted documents.  

     There are cases of mismatch between the numbers of components and assemblies of a vehicle (engine number, vehicle body) with the numbers indicated in the vehicle registration certificate, as well as unauthorized installation of various devices and devices on the vehicle, the installation of which is prohibited by law (warning devices, flashing lights, etc.). Visually identify these violations This is not possible, and therefore it is necessary to inspect a vehicle or small vessel.  

     6. Identification of malfunctions of a vehicle or small vessel, in the presence of which operation is prohibited. The list of malfunctions and conditions under which the operation of vehicles is prohibited is contained in the Rules of the Road of the Republic of Kazakhstan, approved by the Decree of the Government of the Republic of Kazakhstan dated November 13, 2014.  

     The list of malfunctions, in the presence of which the operation of small vessels is prohibited, is contained in the Rules for the Use of small vessels and bases (facilities) for their parking, approved by the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 27, 2015 No. 354.  

     In order to identify malfunctions of vehicles and small vessels, and to hold the driver accountable for violations committed, authorized officials must inspect the vehicle and small vessel. And according to the commented article, they are entitled to do so in this situation.  

     7. Authorized officials also have the right to inspect a vehicle or small vessel in the event of its detention and prohibition of its operation. The grounds for the detention and prohibition of the operation of a vehicle or small vessel are specified in art. 797 of the Administrative Code.

     Part 4. Inspection of vehicles and small vessels is carried out in the presence of the person in whose possession they are, or his representative or the person operating the vehicle or small vessel on a legal basis.  

     In urgent cases, they may be searched in the absence of the specified persons. In which cases, see the commentary to part 2 of the commented article.  

     Part 5. An inspection of a vehicle or small vessel, like a personal inspection, can be carried out without the participation of witnesses, but with the mandatory use of technical means to record its progress and results (photo, video). The course and results of the fixation should be reflected in the protocol.

     Part 6. After the inspection of vehicles and small vessels, an authorized person draws up an inspection report, which is signed by an authorized official, two witnesses and the person in whose presence the inspection of the vehicle, small vessel was carried out (the owner of the vehicle, small vessel, his representative, or the person driving the vehicle, small vessel on legally).  

     A copy of the inspection report shall be handed over to the person in possession of the vehicles or small vessels subjected to inspection, or to his representative or the person operating the vehicle or small vessel on a legal basis.  

     Part 7. The inspection protocol for vehicles and small vessels shall specify the date and place of its compilation, the position, surname and initials of the person who drew up the protocol, information about the identity of the owner of the vehicle, small vessel subjected to inspection, information about the type, make, model, state registration number, and other identification features of the vehicle, small vessel.  

     Part 8. If technical means of recording its progress and results were used during the inspection of a vehicle or small vessel, this should be indicated in the inspection report, and all photo and video inspection materials obtained must be attached to the materials of the administrative offense case as evidence.  

     Part 9. The protocol of inspection of vehicles and small vessels is signed by the official who drafted it, the person in respect of whom the proceedings are being conducted, the owner of the vehicle, small vessel subjected to inspection, or his representative. If the person present during the inspection refused to sign the protocol of this procedural action, then a note about it is made in the inspection protocol, and the fact of the person's refusal to sign the protocol is confirmed by the signatures of the witnesses present.  

     If any items or documents are seized during the inspection of a vehicle or small vessel, this is also noted in the inspection report, and all seized items and documents are attached to the administrative offense case.  

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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