Commentary to article 38. Physical or mental coercion  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The commission of an act provided for in this Code as a result of physical or mental coercion is not an administrative offense if, as a result of such coercion, the person could not direct his actions (inaction).

     2. The issue of administrative responsibility for causing harm to the interests protected by this Code as a result of mental coercion, as well as as a result of physical coercion, as a result of which a person retained the ability to direct his actions, is resolved taking into account the provisions of Article 37 of this Code.

     Part 1. The commission of an unlawful act by a person under physical or mental coercion will not be considered an administrative offense and does not entail administrative responsibility, since the person could not independently direct his actions.

     A person's act, in order for the law to recognize it as illegal, must be an act of conscious activity, i.e. volitional. The act must be committed under the control of the person's will and consciousness. The act can be either voluntary or committed as a result of physical or mental coercion.  

     In the reference literature, coercion is defined mainly as "an action according to the verb "to compel", "to compel". According to Bachrach, "coercion can be understood as the affirmation of the will of the ruler in spite of the subject, the denial of the will of the subject and the external influence on his behavior."

     In the commented article, there are two forms of coercion: physical and mental. Let's look at each of them in more detail.

     Physical coercion is a violent effect on the human body, which is aimed at causing pain or harm to health, committed in order to achieve the commission of a certain action by the coerced person. Physical coercion can be reduced to beatings, the use of weapons, etc., as well as effects on other physiological processes (the use of potent medicinal, narcotic and psychotropic drugs, deprivation of food, sleep, etc.) and restriction of the physical freedom of the forced (restraint, binding, etc.).  

     There are two types of physical coercion. First, physical coercion is an effect on the human body, such coercion includes the following: beating, torture, torture, forcible or against the will of a person, the introduction of intoxicating substances into his body, forced binding, i.e. actions that superficially coincide with physical violence, but differ in their focus on suppressing the will of another person, to change behavior in your favor. Secondly, physical coercion may not be related to physical violence. Such, for example, is the locking of a person in a room without direct mechanical action on his body, as a result of which he is deprived of the opportunity to use freedom of movement and cannot perform certain actions.  

     Mental coercion is the use of mental violence against a person in order to force him to perform an action pleasing to the demanding person or to refrain from an undesirable action for him. Mental coercion is an informational influence on a person and his consciousness, which poses a threat of physical violence against the person being coerced or his relatives. Mental coercion should be understood as any means of influencing the human psyche, expressed in intimidation with the use of physical violence, destruction or damage to property, dissemination of slanderous fabrications, etc. The types of mental influence in coercion are threat and hypnosis. An order can also take the form of coercion. In this case, the performer is afraid of adverse consequences for himself.  

     Under mental coercion, a person who commits a socially dangerous act has free will. The person to whom the demand is made has a choice of a certain behavior. However, the person committing the offense may not be aware of what he is doing, may commit acts against his will, which means that the person committing the crime is under hypnosis.  

     Hypnosis is a temporary effect on human consciousness, as a result of which the functions of personal control and self–awareness change. In other words, a person is put into a hypnotic state using various methods, usually light and sound effects. At the same time, the work of consciousness and the body as a whole slows down. Under the influence of hypnosis, a person unconsciously executes the commands given to him and changes his behavior. Hypnosis is a kind of irresistible force. An example of mental coercion may be threatening the driver of a vehicle with a weapon or physical violence, driving at a forbidding traffic light, which is a violation of Article 599 of the Administrative Code. In this case, the driver will not be held administratively liable if the threat was real and he could be careful for his life and health, i.e. he saw a weapon or the people who forced him were physically stronger.

     Part 2. However, the person against whom physical or mental coercion is applied is not always unable to direct his actions.  

     If the forced person still had the opportunity to choose a non-contradictory behavior option, there is a situation similar to extreme necessity (Article 37 of the Administrative Code): in order to prevent harm to his legally protected interests, the forced person harms the interests of a third party. The harm caused in such situations is assessed as being caused in a state of extreme necessity: that is, in order to be recognized as legitimate, it must be less than the harm prevented and causing harm should be precisely the last way out of the current situation. There is a lot of debate in the legal literature and among scientists about the moment when a state of extreme necessity arises. Some authors believe that a state of extreme necessity arises only from the stage of an assassination attempt, excluding such a possibility from the stage of preparation or causing a real threat, others consider the initial moment of danger, creating a state of extreme necessity, a real threat. Threat, coercion, and dependent status are circumstances that incline a person to commit an administrative offense, but they do not create conditions for the legality of extreme necessity. The sources of danger that lead to a state of extreme necessity may be different. These are natural forces, animal attacks, physiological and pathological processes occurring in the human body, and human actions, including criminal ones. People's actions, including those that violate law and order, bring the institution of extreme necessity closer to circumstances that mitigate punishment.

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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