Comments on article 86. Protection of personal rights when receiving samples of the Civil Procedure Code of the Republic of Kazakhstan

1. Methods and scientific and technical means of obtaining samples should be safe for human life and health.

2. The use of complex medical procedures or methods that cause pain or possible negative health consequences is allowed only after explaining such consequences to a person and only with the written consent of the person from whom the samples are to be obtained, and if he has not reached the age of majority or suffers from a mental illness, then with the consent of his legal representatives.

1. It follows from the content of the article that we are talking about the protection of individual rights when receiving biological samples (blood, saliva, etc.) from a living person.Methods and scientific and technical means of obtaining samples should be safe for human life and health. This rule is initially based on the constitutional provision that the highest values of the Republic of Kazakhstan are a person, his life, rights and freedoms (paragraph 1 of Article 1 of the Constitution).

2. The rule on the safety of methods and scientific and technical means for life and health does not exclude that their use may cause pain or possible negative health consequences. In such cases, the specified consequences are explained to the person in advance and written consent is obtained from the person. Written consent for persons under the age of majority is given by their legal representatives - parents (parent), adoptive parents (adoptive parents), guardian or trustee, foster carer and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education, upbringing, protection of the rights and interests of the child (subparagraph 12) of paragraph 1 Article 1 of the KBS).

Additional comment

1. Any methods and scientific and technical means may be used in sampling, but they should not endanger human life and health. Such methods and tools should have a scientific basis, be based on the studied objective patterns, pass experimental verification and be recognized by judicial practice.Various samples of a living person may be required for the examination.: saliva, blood, other secretions of the human body, voice, etc. It may be necessary to expose the human body. However, the honor and dignity of the individual should not be violated, and their humiliation should not be allowed. When a person's body is exposed, only persons of the same sex as the person from whom the samples are taken may be present (with the exception of employees of a medical institution). Such a person should not feel any harassment or hear any ridicule, reproaches, etc. When taking samples from living persons, it is unacceptable:1) deprivation or restriction of their rights guaranteed by law (including through deception, violence, threats and other illegal measures); 2) the use of these persons as subjects of clinical research of medical technologies, pharmacological and medicinal products; 3) the use of methods involving surgical intervention.

2. The person from whom the samples are taken must be informed by a specialist in an accessible form about the methods used, possible pain and side effects. The specified information is also provided to the legal representative of the person from whom the samples are being taken who has submitted the relevant application. When using methods that cause pain or possible negative health effects, the person from whom the samples are to be obtained or his legal representative must give written consent to this procedure.Written consent for persons suffering from mental illness is given by their legal representatives - guardians (Article 26 of the Civil Code, part three of Article 327 of the CPC).

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

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