of April 9, 2012 No. 1
About application of measures of ensuring production for cases on administrative offenses
Due to the arising questions in case of application in court practice of measures of ensuring production for cases on administrative offenses the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. The measures of ensuring proceeedings about administrative offense (further - providing measures) provided by parts one and the second article 785 of the Code of the Republic of Kazakhstan about administrative offenses (further - the Administrative Code), represent specific means of administrative and legal coercion. They are applied by authorized officers within the powers for the purpose of suppression of administrative offense, identification of the suspect of its making, creation of the protocol on administrative offense when its creation on site of making of administrative offense, prevention of direct threat of life or to human health, threats of accident or technogenic catastrophes is impossible, and in cases when rejection of such measures prevents timely, comprehensive, complete and objective clarification of the facts of the case, permission it according to the law, to ensuring execution of the issued decree.
Measures of providing can be applied in connection with making of administrative offense before initiation of proceedings about administrative offense (except personal inspection, examination of the things which are under physical person), during proceeedings and at stage of execution of the resolution on the case of administrative offense.
Application of measures of providing shall be lawful, answer criteria of rationality, need and sufficiency. Each of the measures of providing listed in the article 785 Administrative Code can separately be applied or along with other measures if it is caused by need.
Measures of providing can be appealed by person concerning whom they are accepted, in higher body (the higher official), in court according to the procedure, provided by Chapter 44 the Administrative Code.
2. The delivery to the place of creation of the protocol on administrative offense is expressed in forced forwarding of physical person, representative of the legal entity, official, and also the vehicle, vessel and other tools of making of offense for the purpose of suppression of offense, identification of the offender, and also creation of the protocol on administrative offense or pronouncement of the protective instruction in case of impossibility to constitute them on site if creation of the protocol or protective instruction is obligatory in cases of committing by person of the offenses provided by subitems 1), 3), 4), 5), 7) of part one and part two of the article 786 Administrative Code.
The basis for application of the specified measure of providing is availability of objective data on the fact of making of administrative offense and the reasonable assumption of making by his that person to which it is applied. One of the additional bases is the refusal of the violator to obey to legal requirements or orders of representatives of state bodies about the termination of making of administrative offense.
In other cases application of the specified measure of providing is not allowed.
Orders of the prosecutor or request of officials, representatives to constitute protocols on administrative offenses on delivery of physical person, in the case provided subitem 8) Article 786 parts oneby the Administrative Code shall be drawn up in writing.
3. It is necessary to understand short-term restriction of personal liberty of physical person, representative of the legal entity, official as administrative detention, in particular, of freedom of action and movement with forced content in the special room during certain time.
The called measure of providing is applied in the cases listed in the article 787 Administrative Code only for the purpose of suppression of offense or ensuring production.
Application of the specified providing measure for the purpose of creation of the protocol on administrative offense, verifications of documents, identifications etc. not allowed
Terms of administrative detention and procedure for their calculation are stipulated in Clause 789 Administrative Code.
4. The drive is forced forwarding of physical person or representative of the legal entity concerning which production on administrative case, the legal representative of the minor brought to the administrative responsibility in the court or body considering case on administrative offense in case of evasion of these persons from appearance on challenge of the judge or body (official) is conducted. The drive is performed by law-enforcement bodies, anti-corruption service, service of economic investigations based on determination of the judge, body (official) considering case on administrative offense. The copy of determination is handed to person subjected to the drive.
4-1. Before removal of determination about the drive the court, body performing proceeedings shall check the reasons of absence of person (the availability of the return receipt of the agenda, other proofs confirming the notice of person with the methods listed in the article 743 Administrative Code), the documents testimonial of availability of reasonable excuses of absence).
Determination about the drive shall contain the data specified in subitems 1), 2), 3), 5), 6), 7) and 8) to part one of the article 822 Administrative Code, and also the basis of application of measure of ensuring proceeedings.
Execution of determination about the drive is performed by the official of authorized body according to the information about person concerning whom the drive is performed, stated in determination. In case of determination impossibility of performance on the drive (for example, lack of the data allowing to identify this person or the place of its stay) the official shall inform without delay on it the court or state body (official) which took out determination about the drive.
The drive cannot be made at night.
Are not subject to the drive of person which for health reasons cannot or shall not leave the place of the stay that is subject to the certificate the corresponding medical certificate.
5. No. 3 is excluded according to the Normative Resolution of the Supreme Court of the Republic of Kazakhstan of 24.12.2014
6. Personal inspection, examination of the things which are under physical person and examination of the vehicle, small size vessel is made only in case of making of administrative offense for the purpose of detection of tools or objects of making of administrative offense. Application of the specified providing measures in other cases is not allowed.
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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