Necessary defense, it is not an administrative offense to commit an administrative offense in a state of necessary defense, if at the same time it is not allowed to exceed the limits of necessary defense
By a resolution of the specialized Administrative court of Petropavlovsk dated August 17, 2018, K. was found guilty of committing an administrative offense under part 1 of Article 73-1 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) with the imposition of an administrative penalty in the form of a fine in the amount of 25,252 tenge. By the resolution of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated September 13, 2018, the above-mentioned resolution remained unchanged. In his submission, the Chairman of the Supreme Court of the Republic of Kazakhstan proposes to review the judicial acts issued in the case in cassation due to a violation of uniformity in the interpretation and application of legal norms by the courts. After hearing K., the defense lawyer, P., who supported the arguments of the presentation, and the conclusion of the prosecutor, who considered the presentation to be satisfactory, the board comes to the following conclusion. It follows from the case file that on July 11, 2018, in the cafeteria building at 61 Internatsionalnaya Street, Petropavlovsk, during a conflict between K. and B. the parties mutually caused each other minor harm, resulting in a short-term health disorder. It was established that the victim B. appeared at lunchtime at her former place of work to meet with a previously unknown K. In her explanations, B. informed the court that the reason for the meeting, which turned into a conflict, was her demand to K. to provide access to the official personal computer and return the information stored in it.
Necessary defense, it is not an administrative offense to commit an administrative offense in a state of necessary defense, if at the same time it is not allowed to exceed the limits of necessary defense
The reason for the beginning of the use of violent actions by B. against K. the latter refused to provide access to the computer and delete the information stored in it. The fact that B. started committing violent acts is confirmed by the evidence collected in the case: explanations of the persons participating in the case, witness statements. By the resolution of the specialized Administrative court of Petropavlovsk dated August 17, 2018, which was left unchanged by the resolution of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated September 13, 2018, B. was brought to administrative responsibility under part 1 of Article 73-1 of the Administrative Code. According to the materials of this case, the victim B. does not dispute the court's decision against herself. Moreover, during the court session, K. apologized to the victim. In accordance with parts 1 and 2 of Article 35 of the Administrative Code, it is not an administrative offense to commit an act provided for in this Code in a state of necessary defense, that is, while protecting the person, home, property, land plot and other rights of the defender or other persons protected by law interests of society or the state from unlawful encroachment by causing harm to the encroaching at the same time, it was not allowed to exceed the limits of necessary defense. All persons have the right to the necessary defense equally, regardless of their professional or other special training and official position. This right belongs to a person, regardless of the possibility of avoiding unlawful encroachment or seeking help from other persons or government agencies. The case materials confirm K.'s arguments. that the commission of violent acts by B. was of a continuing nature. In this regard, K. admitted that at the time of the attack, in order to protect herself, she could have unintentionally physically resisted B. and caused minor harm to her health. The court did not establish that the limits of necessary defense had been exceeded. Causing harm by negligence when repelling an attack does not entail administrative responsibility.
Taking into account the circumstances described above, confirming the fact of the beginning of the commission of illegal actions by the victim B., the board concludes that K.'s actions are subject to assessment as committed in a state of necessary defense. The Specialized Judicial Board of the Supreme Court annulled judicial acts of local courts and proceedings in the case of an administrative offense against K. under part 1 of Article 73-1 of the Code of Administrative Offense of the Republic of Kazakhstan were terminated due to the absence of elements of an imputed administrative offense in her actions. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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