G. A. Djandarbekov — the magistrate of the Karaganda police Academy of the MIA of the
Republic of Kazakhstan named by B. Beysenov, the lieutenant colonel of the police;
The Supervisor — the associate professor of Administrative law and administrative activity of
Department of Internal Affairs, the doctor (PhD), the lieutenant colonel of the police
D. A. Amangeldiyev
MATERIAL EVIDENCES ONE OF THE MAIN PROOFS IN AFFAIRS PRODUCTION
ABOUT ADMINISTRATIVE OFFENSES
In the realities of our time, there is no doubt that the doctrine of evidence, proof, relevance and
admissibility of evidence, their verification and assessment is one of the core issues of science and
practice of the evidential process. Evidence is the core of proof, of which an evidence basis is formed,
predetermining the entire legal position of the subject of proof.
Chapter 39 of the Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter
CRK on AO) is fully dedicated to evidence and proof of cases of administrative violations.
In part 2 of Article 765 of the Code of the Republic of Kazakhstan on Administrative Offenses
(hereinafter CRK on AO) lists the sources of evidentiary information by means of which the main ele-
ments of the subject of evidence are established in the proceedings in the administrative violation case
provided for in Article 819 of the Code of the Republic of Kazakhstan on Administrative Offenses. To
them, along with sources originating from the person (personal evidence), material evidence is also in-
cluded. Thus, in the production under consideration, «information carriers are not only people and the
various written documents created by them, but also other items of the material world»
1
. Such items
may contain information necessary to establish objective truth, comprehensive, complete and objective
clarification of all the circumstances of the case.
As is known, administrative violations are acts committed in the form of acts or omissions.
People's unlawful actions are always committed in the appropriate surrounding conditions of the
surrounding reality. These actions are interrelated with the objects of the surrounding conditions,
things, and objects and directly interact with them.
As a result of this interaction, unlawful actions leave information about themselves (factual data)
on the objects of the material world, as they directly affect the properties, appearance, and location of
these objects.
An offense committed in the form of inaction can also cause changes in the state of the environ-
ment, for example, damage to object or thing, bringing it to an unfit state. At the same time, the absence
of changes in the surrounding conditions can also indicate the inaction of the offender.
Objects, things can serve as carriers of evidentiary information, since they are capable of reflecting
various kinds of connections between phenomena: cause-and-effect relationships, temporal, spatial and
other.
In the proceedings in the case of an administrative offense, items that are an instrument or an ob-
ject of an offense or have retained its traces (item 1 of Article 777 of the Code of the Republic of Ka-
zakhstan on Administrative Offenses) are considered as physical evidence.
In general terms, regardless of the type of legal proceedings, various objects that by their proper-
ties, appearance, changes, location, affiliation or other characteristics are capable of confirming or re-
futing the existence of circumstances that are relevant to the proper resolution of a case are recognized
as material evidence.
The material evidence contains information that the judge, official person authorized to carry out
proceedings in the case of an administrative offense is perceived directly visually, or with the help of an
expert's opinion, for example, a narcotic drug.
The main feature that distinguishes material evidence from other kinds of evidence is that they rep-
resent «not a verbal or code (digital, graphic) description of circumstances relevant to the case, but a
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sensually visual embodiment of their traces and signs that survived at the time of production on the
case»
2
.
The foregoing allows us to conclude that material evidence, in the broadest sense, is material ob-
jects, which by their properties, appearance, form, and other features are capable of confirming or refut-
ing the facts relevant to the case of an administrative offense
3
.
Items of the material world in the proceedings in the case of an administrative offense act as physi-
cal evidence mainly in the following cases:
- in case of deviation from administrative and technical standards (standards and other norms). The
deviation of objects from the material world from the requirements of administrative norms (or their
change from the previous state that met such requirements) can be related to both human activity and
natural processes (wear, moral aging, etc.). So, for example, the natural wear and tear of the main units
of a motor vehicle (braking system, steering) is the basis for recognizing a technically faulty motor ve-
hicle as material evidence in the case of an administrative offense;
- if there are changes in these subjects related to the fact that is being established. Such material
evidence can include, for example, a damaged automatic telephone, deformed car parts, felled trees;
- when the administrative and legal norms prohibit their creation and use. To such material evi-
dence can be attributed: manufactured and operated high-frequency device without a special permit (li-
cense); illegally cultivated plants containing narcotic drugs, illegally manufactured pneumatic weapons;
- if they are found in a certain place and at a certain time, if these circumstances are relevant to the
case. For example, a rifle or extracted hunting products found from a citizen who is in the reserve, as
well as the items found by a citizen who is in hunting grounds, but in a time-prohibited period, are ma-
terial evidence of illegal hunting.
The involvement of material evidence in the case of an administrative offense must be properly
formalized.
Since the preservation and transmission of information with the help of material evidence is
achieved by directly mapping objects, processes on the surface of objects, and by changing their prop-
erties and qualities, then the way information is taken, i.e. the method of examining physical evidence
is to examine them. The criminal procedural legislation provides in such cases drawing up of the report
of examination of material evidence (Article 221 of the Criminal Procedure Code of the Republic of
Kazakhstan), in addition to describing it in the protocol of inspection of the scene of the incident.
The proceedings for administrative offenses are relatively simple, so there is no need to draw up a
similar document. In order not to encumber the case materials with additional procedural documents,
information on material evidence in accordance with part 2 of Article 777 of the Code of the Republic
of Kazakhstan on Administrative Offenses, which is recorded in the protocol on administrative viola-
tion or other protocol, for example, personal searching, searching of things, vehicle, and documents.
It should be noted that the description of material evidence in the protocol is the main way to fix
them. At the same time, material evidence, if it necessary, is photographed or recorded in other ways
(video recording).
Seized material evidence is attached to the materials of the case of an administrative offense, their
surfing is provided until the case is resolved on the merits.
When it is impossible or not expedient to withdraw material evidence for one reason or another,
they are recorded only in the protocol of procedural action. So, in accordance with Article 794 of the
Code of the Republic of Kazakhstan on Administrative Offenses, traffic patrol officers compile a report
on the examination of the road accident in the commission of offenses provided for in part 2 of Article
610 or Article 615 of the Code of the Republic of Kazakhstan on Administrative Offenses .The protocol
reflects the information about material evidence and additional ways of fixing them (photo and video
recording).
By describing physical evidence, it is necessary to reflect the following points:
- time, place and conditions for the discovery of material evidence;
- individual characteristics of the object (for example, the factory or serial number), its specific
features (for example, smell, color);
- traces on the subject matter relevant to the case;
- the names of persons participating in the examination or seizure of material evidence (for exam-
ple, specialists, witnesses).
109
By describing the material evidence withdrawn, it is inadmissible to use such terms as, for exam-
ple, "narcotic drug", "cold weapon", "blood" in order to prevent premature conclusion about the nature
of these things. Such a conclusion can be made with the help of another source of evidence - the ex-
pert's conclusion.
As a general rule, material evidence in relation to the circumstances to be proved is circumstantial
evidence, since there are intermediate circumstances between them and the fact that is established,
which also need to be established. For example, the deformation of the body or the destruction of parts
of the vehicle, formed when colliding with another vehicle, is not direct proof of the fault of one of the
drivers.
The guilt in this case will be proved in the determination of other circumstances (for example, vio-
lation by one of the drivers of the high-speed regime, maneuvering, passage of intersections, overtak-
ing).
In some cases, evidence may be direct. Such cases include the possession of a citizen or the storage
of objects, substances (for example, narcotic drugs, psychotropic substances and precursors, products of
erotic content, etc.) banned in civil circulation.
In the overwhelming majority of cases, material evidence in the proceedings for administrative of-
fenses acts as indictments, since they help establish the guilt of the person brought to administrative
responsibility.
Much less often, this kind of evidence can be attributed to acquittals. Such a source of evidence
can be the expert's conclusion that the seized substance is not recognized as a narcotic drug.
In the proceedings for administrative offenses cases, material evidence appears, as a rule, as initial.
At the same time, in the legal science there are cases when material evidence is referred to derivatives
in criminal proceedings.
So, for example, criminalist P.V. Danisyavichus all artificial reproductions of objects considered as
derivative evidence. To such he attributed the casts, photographic images and other reproductions
4
.
In the proceedings on cases of administrative violations are not the facts of using casts as material
evidence. At the same time photographing material evidence in accordance with part 2 of Article 777 of
the Code of the Republic of Kazakhstan on Administrative Offenses is one of the ways of fixing them.
The original physical evidence in such cases is the photographed subjects themselves.
Photographic images are attached to the case file on administrative violation in the form of a photo
table. In this document should be reflected: a brief story of the case (in connection with which the pho-
tograph was taken), the brand and model of the camera, the meteorological conditions of the survey, the
name, duty and sign of the person who took the photo.
Material evidence in the proceedings for administrative offenses takes equal position with all other
evidence provided for by part 2 of Article 765 of the Code of the Republic of Kazakhstan on Adminis-
trative Offenses and do not have a pre-established force.
Evaluation of physical evidence is different in that in this case there are no subjective factors that
are characteristic for the evaluation of other types of evidence, such as explanations and testimony of
participants in act. In the explanations and testimony, factual data is presented, corrected for the spe-
cialties of personal perception of events, subjective attitude towards them.
In the evaluation of material evidence, the element of the subjective distortion of reality by the car-
rier of information is deliberately excluded. The objects of the material world, being material evidence,
objectively and adequately capture certain events or phenomena, while the person's testimony contains
information of a subjective quality. In the objective nature of material evidence, some authors noted
their preference over other evidence
5
.
Nevertheless, it is inadmissible to overestimate the role of this type of evidence. In this regard, the
point of view of M.M. Vidrya that «in the theory of evidence, material evidence does not have any
preferences over other evidence ... Their role and significance can be properly assessed only with the
most thorough and critical comparison with all the circumstances of the case, with all the evidence col-
lected during the course investigation and consideration of the case »
6
. It should be noted that the indi-
vidual material evidence alone does not provide enough information about the circumstances of the of-
fense and, accordingly, cannot guarantee the adoption of the correct decision in the case.
Despite the fact that most cases of administrative violations in comparison with criminal and civil
cases are simple and do not present difficulties in resolving them, nevertheless, they should be resolved
by analyzing and evaluating all the evidence available in the case. In rare cases, the legislator is allowed
110
to make a decision on the case, based only on one material evidence. For example, for violation of
hunting rules, a citizen can be brought to administrative responsibility when he is in hunting grounds
with a gun and other hunting tools, with mined products. But, as a rule, a proper and lawful decision is
preceded by the corresponding work on collecting, researching and evaluating all the evidence available
in the case.
When evaluating material evidence, a judge, authorized body or official person ultimately estab-
lishes their internal consistency or inconsistency with other evidence in the form of administrative pro-
ceedings under consideration.
1
Zeman I. Knowledge and information. Gnoseological problems of cybernetics. — M.: Progress, 1966. P. 81-82.
2
The theory of proofs in the Soviet criminal trial. Part special. — M, 1966. P. 236.
3
Dudaev A.B ., Nikulin A.I . Material evidences in proceeding of an administrative offense. – Problem of law-
enforcement activity 2’15. skynet@cyberleninka.ru 07.02.2018.
4
Danisyavichus P.V. Traces as material evidences in the Soviet criminalistics: The dissertation for the degree of juris-
prudence kandidat — M, 1954. P. 13.
5
Grodzinsky M.M. The doctrine about proofs and its evolution. - Kharkov, 1925. P. 117; Kaz Ts.M. Proofs in the Soviet
criminal trial. — Saratov, 1960. P. 99.
6
Vydr M.M. Material evidences in the Soviet criminal trial. — M, 1955. P. 28.
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