Comment to article 797. Detention, delivery and prohibition of operation of a vehicle, vessel, including a small vessel The Code of the Republic of Kazakhstan on Administrative Offences
1. When committing violations specified in the articles:
1) 230 (part two), 367, 368, 370, 372, 381, 382, 383, 392, 393, 394, 395, 396, 400, 403 ( part two), 406 (with the exception of parts seven and eight), 506, 510, 511, 512, 513, 514, 515, 516, 517, 571, 571-1, 572, 573, 575, 581, 582, 586, 589, 590 ( parts two, three and four), 597 (parts three and four), 608, 612, 613 (parts 3-1, fourth, fifth, sixth, ninth, tenth and eleventh), 654 (in terms of offenses provided for in articles 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 606, 607, 610, 611, 612, 613) of this Code, the authorized official specified in the second part of this article has the right to detain, deliver and prohibit the operation of vehicles, vessels, including small vessels, by delivering them for temporary storage to special sites, parking lots or sites adjacent to a stationary transport control post, including using another vehicle (tow truck), a vessel or a small vessel, until the reasons for the detention are eliminated;
2) 571 (parts five, six, seven and eight), 573, 575, 593 (parts two, three, four and five) of this Code, the authorized official specified in part two of this Article has the right to detain, deliver and prohibit the operation of vehicles owned by foreigners or foreign legal entities, by delivering them for temporary storage to special sites, parking lots or sites adjacent to a stationary transport control post, including using another vehicle (tow truck), before the execution of the decision on the imposition of an administrative penalty;
3) 334 (part two), 590 (parts one, five, six, seven, eight, nine and ten), 597 (parts one and two), 610, 611 of this Code, the authorized official specified in part two of this Article has the right to prohibit the operation of vehicles by withdrawing state registration documents. license plates until the reasons for the ban on vehicle operation are eliminated.
Delivery (evacuation) of a vehicle for its temporary storage at special sites, parking lots or sites adjacent to a stationary transport control post can also be applied in cases of violation by the driver of the vehicle of the rules of stopping or parking in his absence, as well as to vehicles left unattended by drivers on the road when their location is established. finding is not possible.
2. The detention, delivery and prohibition of operation of a vehicle, vessel, including a small vessel, are carried out by employees of the internal affairs bodies, the Border Guard Service of the National Security Committee for the Protection and Protection of the State Border of the Republic of Kazakhstan, the military police when committing an administrative offense by a person driving a vehicle of the national security bodies, the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan, transport control bodies within their powers, forestry and hunting authorities, specially protected natural territories, state protection of wildlife (in case of violation of legislation in the field of forestry, fishing, hunting, specially protected natural territories), by officials of state revenue bodies within their powers.
The delivery (evacuation) of a vehicle for its temporary storage at special sites or parking lots may be carried out by local executive authorities.
3. An act of the prescribed form on the detention, delivery and prohibition of the operation of a vehicle, vessel, including a small vessel, is drawn up and attached to the protocol on an administrative offense.
4. The storage of a detained vehicle, vessel, including a small vessel, is carried out at special sites or parking lots created by decision of local executive bodies and which are communal property.
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The commented article defines the procedure for the application of three relatively independent, but at the same time interrelated coercive measures: detention, delivery and prohibition of operation of a vehicle, vessel, including a small vessel (hereinafter referred to as the vessel).
Part 1. The detention of a vehicle is a temporary compulsory termination of the use of a vehicle. According to paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 9, 2012 No. 1 "On the application of measures to ensure production and some other issues of the application of legislation on administrative offenses", when committing administrative offenses specified in Part 1 of Article 797 of the Administrative Code, authorized officials listed in Part 2 of the specified article, has the right to detain, deliver and prohibit the operation of vehicles, vessels, including small vessels by delivering them for temporary storage to special sites or parking lots.
Due to the fact that the list of administrative offenses is extensive and is subject to frequent adjustments, we do not provide a complete list (Part 1 of art. 797 of the Administrative Code).
However, it is necessary to understand that in each specific situation it is necessary to be guided along with the law and common sense. For example, according to the Rules of the Road of the Republic of Kazakhstan, approved by Resolution of the Government of the Republic of Kazakhstan dated November 13, 2014 No. 1196, if other malfunctions and conditions occur along the way, due to which the basic provisions prohibit the operation of vehicles and which the driver is able to detect, he must eliminate them, and if this is not possible, then It can proceed to the parking or repair site in compliance with the necessary precautions.
Thus, if a traffic police officer identifies malfunctions in which the operation of the car is prohibited, you can fix these malfunctions yourself. In the event that it is impossible to fix the malfunctions on their own, the owner has the right to independently call a tow truck and transport the vehicle to the repair site, and officials cannot obstruct it.
Delivery (evacuation) vehicles for their temporary storage at special sites, parking lots or sites adjacent to a stationary transport control post can also be applied in cases of violations by drivers of vehicles of the rules of stopping or parking in their absence, as well as to vehicles left unattended by drivers on the road when it is not possible to establish their location.
State numbers of vehicles are subject to seizure only in the cases provided for in paragraphs 3) of Part 1 of Article 797 of the Administrative Code and the presence of two witnesses and (or) the owner of the vehicle, while the authorized official making the seizure of state numbers is obliged to explain the basis for the seizure to the owner of the vehicle.
These cases are the commission of an offense provided for in Articles 334 (part two), 590 (parts one, five, six, seven, eight, nine and ten), 597 (parts one and two), 610, 611 of the Administrative Code.
Exactly:
- repeated operation by individuals of motor vehicles and other mobile vehicles and installations during the year, in which the content of pollutants in emissions, as well as the noise level produced by them during operation, exceed the established standards.;
- driving a registered vehicle with unreadable or non-conforming national standard requirements or with state registration number plates (sign) installed outside the designated places;
- driving vehicles that do not meet the requirements of technical regulations, national standards, as well as in the presence of malfunctions or conditions under which the operation of vehicles is prohibited;
- driving vehicles with malfunctions of the braking system, steering, traction device;
- driving a converted vehicle without a proper permit;
- the commissioning of vehicles that have not passed a pre-trip (pre-shift) technical inspection, as well as the admission to driving of a driver who has not passed a pre-trip (pre-shift) medical examination, during regular or irregular automobile transportation of passengers, baggage, and cargo;
- driving a vehicle that has not passed a state or mandatory technical inspection;
- violation of the rules for stopping or parking vehicles, with the exception of, among other things, the rules for stopping or parking vehicles on the sidewalk, as well as stopping or parking vehicles on flower beds, lawns, playgrounds or sports grounds;
- violation of traffic rules by drivers of vehicles, resulting in damage to vehicles, goods, roads, road and other structures or other property, causing material damage, including causing minor injury to the victim;
- failure by the driver to fulfill the obligations stipulated by the legislation of the Republic of Kazakhstan in the field of traffic in connection with a traffic accident in which he is a participant, including leaving the driver in violation of traffic rules of the place of the traffic accident in which he was a participant.
Part 2. The detention, delivery and prohibition of the operation of a vehicle, vessel, including a small vessel, are carried out by employees:
- law enforcement agencies;
- The Border Guard Service of the National Security Committee for the Protection and Protection of the State Border of the Republic of Kazakhstan;
- military police when committing an administrative offense by a person driving a vehicle of the national security agencies, the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan;
- transport control authorities within their authority;
- forestry and hunting authorities, specially protected natural territories, fish protection (in case of violation of legislation in the field of forestry, fishing, hunting, specially protected natural territories);
- officials of the state revenue authorities within the limits of their powers.
In addition, the delivery (evacuation) of a vehicle for its temporary storage at special sites or parking lots can also be carried out by local executive authorities. This provision is an innovation and is intended to become the legal basis for the work of evacuation services of local executive bodies.
Part 3. An act is drawn up on the detention, delivery and prohibition of the operation of a vehicle or small vessel, which is attached to the protocol on an administrative offense and, upon application, is handed over to the person in respect of whom the specified security measures have been taken.
The previously mentioned norm contained a ban on the operation of a vehicle, a small vessel with malfunctions with which their operation is prohibited, or converted without appropriate permission, or not registered in accordance with the established procedure, or not having passed state or mandatory technical inspection, as well as without state registration plates or with hidden, forged or not conforming to the national standard. license plates. However, the legislator did not explain what related to the latter, which caused a lot of difficulties in practice. Later, this provision was deleted (the Law of the Republic of Kazakhstan dated December 30, 2019 No. 300-VI SAM "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses").
Security measures in the form of detention and (or) prohibition of the operation of vehicles and small vessels remain in effect until the reasons for the detention and (or) prohibition of operation are eliminated.
Part 4. The storage of a detained vehicle, vessel, including a small vessel, is carried out at special sites or parking lots created by decision of local executive bodies and which are communal property. This issue has remained controversial since the existence of this rule, as it provokes citizens' dissatisfaction with the procedure for choosing such sites, charging fees and returning vehicles.
For example, the refund procedure is not directly provided for by law. At the same time, according to paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 9, 2012 No. 1 "On the application of measures to ensure proceedings in cases of administrative offenses", security measures in the form of detention and (or) prohibition of the operation of vehicles, vessels, including small vessels, remain in effect until the causes are eliminated. detention and (or) prohibition of exploitation.
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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