Commentary to article 85. Disclosure by mediation participants of information that became known during mediation  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Disclosure by mediation participants of information that became known during mediation without the permission of the party that provided this information, if this action does not contain signs of a criminal offense, –

     entails a fine in the amount of twenty monthly calculation indices.

     2. The action (inaction) provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –

     entails a fine in the amount of sixty monthly calculation indices.

     Part 1. The generic object of an administrative offense is public relations related to the realization of constitutional rights of an individual. In this case, we are talking about the rights enshrined in Article 18 of the Constitution of the Republic, according to which: "Everyone has the right to privacy, personal and family secrets, and the protection of their honor and dignity. Everyone has the right to privacy of personal deposits and savings, correspondence, telephone conversations, postal, telegraphic and other communications."

     The direct object of an administrative offense is the procedure established by law for observing the principle of confidentiality of mediation.

     Public relations in the field of mediation in the Republic of Kazakhstan are regulated by the Law "On Mediation" (hereinafter referred to as the Law). The Law defines the principles of mediation and the procedure for conducting it, as well as the status of the mediator.

     According to paragraph 5 of Article 2 of the Law, mediation is a procedure for resolving a dispute (conflict) between the parties with the assistance of a mediator (mediators) in order to achieve a mutually acceptable solution, implemented by the voluntary consent of the parties.

     The scope of mediation is disputes (conflicts) arising from civil, labor, family and other legal relations involving individuals and (or) legal entities, as well as those considered during criminal proceedings in cases of minor and moderate crimes, criminal offenses, unless otherwise established by the laws of the Republic of Kazakhstan, and relationships, arising during the execution of enforcement proceedings.  

     Mediation procedure is not applied:

     - in the event that the above-mentioned disputes (conflicts) affect or may affect the interests of third parties not participating in the mediation procedure and persons recognized by the court as legally incompetent or with limited legal capacity;

     - disputes (conflicts) arising from civil, labor, family and other legal relations involving individuals and (or) legal entities, when one of the parties is a government agency;

     - in criminal cases of corruption crimes and other crimes against the interests of the civil service and public administration.

     Mediation has the following objectives:

     1) achieving a dispute resolution option (conflict) that suits both sides of the mediation;

     2) reducing the level of conflict between the parties.

     Mediation is carried out by mutual agreement of the parties and upon conclusion of a mediation agreement between them.

     Mediation agreement is a written agreement between the parties concluded with the mediator in order to resolve a dispute (conflict) before the mediation begins.

     Mediation in the settlement of disputes arising from civil, labor, family and other legal relations involving individuals and (or) legal entities can be applied both before going to court and after the start of legal proceedings.

     Mediation begins from the date of the conclusion of the mediation agreement by the parties. The parties shall select one or more mediators by mutual agreement to conduct mediation.

     The terms of mediation are determined by the mediation agreement, taking into account the requirements of the Law.

     The Law also defines the principles on the basis of which mediation is conducted. One of them is privacy. Confidentiality of mediation implies that its participants do not have the right to disclose information that became known to them during mediation without the written permission of the mediation party that provided this information.  

     The objective side of the offense is the violation of this prohibition and is expressed in actions (inaction) to communicate information that became known during mediation to third parties who are not participants in mediation. At the same time, a prerequisite for bringing administrative responsibility for disclosure is the absence of signs of a criminally punishable act in it.

     The subject of the offense is a participant in mediation. According to clause 8 of Article 2 of the Law, mediation participants are the mediator and the parties to mediation.

     A mediator is an independent individual engaged by the parties to conduct mediation on a professional and non-professional basis in accordance with the requirements of the Law.

     The mediator's activities may be carried out on an unprofessional basis.:

     1) persons who have reached the age of forty and are on the register of non-professional mediators;

     2) judges when conducting conciliation procedures in court in accordance with the CPC.

     The mediator's activities can be carried out on a professional basis:

     1) persons with higher education who have reached the age of twenty-five, who have a document (certificate) confirming the completion of training in a mediator training program approved in accordance with the procedure determined by the Government of the Republic of Kazakhstan, and who are in the register of professional mediators;

     2) retired judges.

     It is also worth noting that a mediator cannot be questioned as a witness about information that became known to him during mediation, except in cases provided for by the laws of the Republic of Kazakhstan.

     The parties to mediation are the subjects of relations (individuals or legal entities) within the scope of mediation, participating in the mediation procedure.

     The subjective side of an administrative offense is characterized by both intentional and careless forms of guilt.

     Part 2 of the commented article defines as a qualifying feature the commission of a repeated action (inaction) provided for in part one of Article 85 of the Administrative Code within a year after the imposition of an administrative penalty.  

     Cases of administrative offenses provided for in Article 85 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts (Article 684 of the Administrative Code).

     Authorized officials of the internal affairs bodies have the right to draw up protocols on administrative offenses (art. 804 of the Administrative Code).

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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