Commentary to article 10. The presumption of innocence The Code of the Republic of Kazakhstan on Administrative Offences
1. A person against whom an administrative offense case has been initiated shall be considered innocent until his guilt is proven in accordance with the procedure provided for in this Code and established by a decision of a judge, body (official) that has reviewed the case within the limits of its powers.
In the case of a case of an administrative offense being considered in a shortened procedure, as well as by an order requiring the payment of a fine, the person against whom the case of an administrative offense has been initiated is considered innocent until the relevant decision enters into force.
2. No one has to prove their innocence.
3. Any doubts about guilt are interpreted in favor of the person against whom an administrative offense case has been initiated. Doubts arising from the application of legislation on administrative offences should also be resolved in his favor.
The presumption of innocence is an important democratic achievement of the modern civilized world. This is one of the basic, constitutional, and system-forming principles for today, which was proclaimed back during the Great French Revolution of the 18th century in the famous Declaration of Human and Civil Rights as one of the greatest social values after the centuries of absolutist arbitrariness of power that ignored individual rights.
The norm of this article reproduces and develops the constitutional provisions of Article 77 of the Constitution on the presumption of innocence, taking into account the specifics inherent in legislation on administrative responsibility, in particular, proceedings in cases of administrative offenses.
The provisions of the commented article fill the principle of presumption of innocence with specific requirements that must be implemented by all those involved in proceedings on administrative offenses.
Part 1. Guilt is the most important sign of an administrative offense, in order to establish the presence or absence of which there is a variety of verification and evidentiary procedural activities of officials who, according to the requirements of the law, are responsible for bringing to administrative responsibility.
It should be noted that the wording of this article is classic for the legislative acts of the tort cycle. This is due to the fact that the Administrative Code, as well as the Criminal Code, provides for the commission of an offense intentionally or negligently. This is explicitly provided for in Articles 25, 26 and 27 of the Administrative Code.
Paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 states that "when considering cases of administrative offenses, the principle of presumption of innocence enshrined in Article 10 of the Administrative Code must be strictly observed."
Thus, a person is subject to administrative responsibility only for those acts (actions or omissions) and socially dangerous consequences that have occurred, in respect of which guilt has been established in the form of intent or negligence. Objective imputation, that is, responsibility for innocent harm, is not allowed.
In the theory of law, guilt is defined as the mental attitude of a person towards a dangerous act committed by him and the consequences in the form of intent or negligence.
The final version of the commented part was formulated by the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI; it was supplemented by the second paragraph in connection with the specifics of involving the offender in a reduced procedure, as well as the requirement to pay a fine. According to Chapter 42 of the Administrative Code, in the case of payment of a fine in the order of shortened proceedings in the case of an administrative offense, no decision is made, and the case is considered to have been considered on its merits.
In addition, when an administrative offense is recorded in the field of traffic by certified special control and measuring equipment and devices operating in automatic mode, a decision on the case is also not issued, and a fine in accordance with Part 1-1 of Article 821 of the Administrative Code is issued in the form of an instruction on the need to pay a fine.
In this regard, Article 10 of the Administrative Code additionally provided that a person involved in the above-mentioned types of proceedings is considered innocent until the relevant decision comes into force.
Part 2 of the article stipulates that no one is required to prove their innocence. In a commentary to the Code of Administrative Offences of the Russian Federation, in a similar article, V.S. Chizhevsky explains that "proving a person's guilt in committing an administrative offence is the responsibility of the judge, body, and official in charge of the case."
However, such a provision should be considered erroneous for the Kazakh legal system, since a judge should only administer justice, and not prove guilt. According to Article 32 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", a judge is obliged to honestly and conscientiously perform his duties, administer justice, obeying only the Constitution and laws of the Republic of Kazakhstan, be impartial and fair.
In addition, in accordance with Part 2 of Article 781 of the Administrative Code, the obligation to prove the existence of grounds for administrative responsibility and the guilt of an offense lies with the body (official) authorized to conduct proceedings on administrative offenses, namely the persons specified in Article 804 of the Administrative Code. This rule is also included in the criminal procedure legislation.
It is widely believed that an exception to this principle is established by art. 31 of the Administrative Code, according to which, when fixing an offense with special technical means, the owner (owner) of vehicles is brought to administrative responsibility for administrative offenses in the field of traffic. In this case, the condition for his release from liability is to establish during the inspection, according to his message or statement, the fact that the vehicle left his possession as a result of illegal actions of other persons, or to identify another person in whose possession the vehicle was at the time of the offense. That is, the offender does not always have to prove his involvement in the committed offense.
Part 3 of the article in question stipulates that any doubts about guilt, including doubts arising from the application of legislation on administrative offenses, must be interpreted and resolved in favor of the person against whom an administrative offense case has been initiated.
If the authorities conducting the proceedings on an administrative offense had only his own confessions against a citizen as evidence of his guilt, which he refused with at least one oral statement during the judicial review, then these testimonies cannot be taken into account by the court as evidence of his guilt. At the same time, the offender, who refused to give evidence previously, is relieved of the obligation to prove that he gave this testimony under someone's illegal (physical or psychological) pressure, pressure, etc.
All irremediable doubts about the guilt of a person suspected of committing an administrative offense (arising from insufficient evidence, contradictory evidence, illegality of evidence extraction methods, etc., etc.), the court, the body (official) authorized to consider the case of an administrative offense, is obliged to interpret in favor of the suspected offender.
The decision on bringing to administrative responsibility cannot be based on:
– assumptions;
– guesses (assumptions) of officials and the court that do not have proper evidence;
– testimony from anonymous sources (the identification data of which is not known to the court, body (official));
– unsubstantiated allegations (even in writing) about the "alleged" fact of the existence of a multitude of secret evidence, which the court authority (official) does not have access to;
– other "inadmissible evidence".
The court or an authorized official considering the case of an administrative offense should not take sides with anyone, but should be an independent, impartial, objective, comprehensive and lawful body of consideration of the validity (groundlessness), evidence (lack of evidence) of an administrative offense.
The Code of the Republic of Kazakhstan on Administrative Offences
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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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