Comment on the article 8. Legality The Code of the Republic of Kazakhstan on Administrative Offences
1. Administrative offences, measures of administrative punishment, measures to ensure proceedings in the case of an administrative offence and measures of administrative and legal impact are determined only by this Code. No one may be subjected to administrative penalties, administrative and legal measures, or measures to ensure proceedings in the case of an administrative offense, except on the grounds and in accordance with the procedure established by this Code.
2. The court, bodies (officials) authorized to consider cases of administrative offenses, in proceedings on cases of administrative offenses, are obliged to strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, this Code, and other regulatory legal acts specified in Article 1 of this Code. The Constitution of the Republic of Kazakhstan has the highest legal force and direct effect on the entire territory of the Republic of Kazakhstan. In case of a conflict between the rules established by the law and the Constitution of the Republic of Kazakhstan, the provisions of the Constitution shall apply.
3. Courts may not apply laws and other regulatory legal acts that infringe on human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council of the Republic of Kazakhstan with a proposal to declare this act unconstitutional. Upon receipt by the court of the decision of the Constitutional Council, the proceedings in the case are resumed.
Decisions of courts and bodies (officials) authorized to consider cases of administrative offenses based on a law or other normative legal act recognized as unconstitutional are not subject to execution.
4. Violation of the law by a court, bodies (officials) authorized to consider cases of administrative offenses in proceedings on cases of administrative offenses is unacceptable and entails liability established by law, invalidation of adopted acts and their cancellation.
Part 1 of the commented article should be considered in conjunction with Article 1 of the Administrative Code. In accordance with Article 83 of the Constitution, the Prosecutor's Office exercises, within the limits and forms prescribed by law, supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan. Thus, supervision of compliance with the legality of judicial acts in cases of administrative offenses is carried out on the basis of the order of the Prosecutor General of the Republic of Kazakhstan dated May 2, 2018 No. 60.
Control over legality in the implementation of all stages of administrative and procedural activities is determined by departmental instructions on the application of the Code of the Republic of Kazakhstan on Administrative Offenses. For example, sub-paragraphs 8 and 9 of the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated December 13, 2013 No. 713 "On approval of the Instructions for the production of cases of administrative offenses in the internal affairs bodies of the Republic of Kazakhstan" provide for a mechanism for monitoring the legality.
Similar instructions and rules have been approved by many authorized bodies with jurisdictional powers under the Administrative Code to carry out administrative and procedural activities.
It follows from the content of Articles 1 and 736 of the Administrative Code that administrative offenses, as well as the procedure for proceedings in cases of administrative offenses, can only be established by the commented Code.
In this regard, the provision of part 1 of the commented article is of great practical importance, which clearly establishes that only those offenses provided for in the Administrative Code can be considered administrative offenses. Measures of administrative punishment, measures to ensure proceedings in the case of an administrative offense and measures of administrative and legal impact are determined and applied only on the grounds and in accordance with the procedure established by the Administrative Code.
An administrative offense must contain mandatory elements, without which an action (inaction) can be considered as one of the encroachments on morality, not law. These elements form the composition of an administrative offense.
According to Agapov A.B., "The composition of an administrative offense is a set of elements that characterize the public danger of misconduct, these include: the content of the offense (the objective side), the psycho-emotional status of the participants (the subjective side and the subject of the composition), as well as the object of unlawful encroachment. The absence of any of them excludes both the presence of the offense as a whole and, accordingly, the application of state sanctions."
The legal grounds for the application and the list of measures to ensure proceedings in cases of administrative offenses are provided for in Chapter 40 of the Administrative Code.
The specifics of the observance of legality in the application of security measures are explained by 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." The application of security measures must be lawful and meet the criteria of reasonableness, necessity and sufficiency. Each of the security measures listed in Article 785 of the Administrative Code may be applied separately or simultaneously with other measures, if necessary.
Administrative and legal measures may be applied only those provided for in Article 52 of the Administrative Code. In order to prevent this person from committing new offenses, administrative and legal measures may be applied to a person who has committed an administrative offense, along with the imposition of an administrative penalty, or instead of it, when the person who has committed an administrative offense is released from administrative responsibility in connection with reconciliation.
Part 2 of the article in question requires the court and officials to comply with the requirements of the Constitution and other regulations specified in art. 1 of the Administrative Code, namely:
1) international contractual and other obligations of the Republic of Kazakhstan;
2) normative resolutions of the Constitutional Council of the Republic of Kazakhstan;
3) regulatory rulings of the Supreme Court of the Republic of Kazakhstan.
Moreover, the Constitution has the highest legal force and direct effect on the entire territory of the Republic of Kazakhstan. In the event of a conflict between the rules established by law and the Constitution, the provisions of the Constitution shall apply.
Not all constitutions of the countries of the world explicitly state that the constitution is the basic law of the state or has the highest legal force. This is stated, for example, in Article 98 of the Constitution of Japan.: "This Constitution is the Supreme Law of the country, and no laws, decrees, rescripts or other state acts that contradict its provisions in whole or in part have legislative force."
However, an approach similar in content to the Kazakh one prevails, according to which the Constitution has the highest legal force, without reservations and notes. This approach to determining the place of the Constitution in the hierarchy of normative legal acts and its priority even over international acts is the most common in the legislation of foreign countries.
Part 3 of the article under study provides for the court's procedure in cases where a law or other regulatory legal act subject to application infringes on the rights and freedoms of a person and citizen enshrined in the Constitution. The rights and freedoms of citizens are enshrined in section 2 of the Constitution of the Republic of Kazakhstan.
Resolution of the Constitutional Council of the Republic of Kazakhstan dated October 28, 1996 No. 6/2 "On the official interpretation of paragraph 1 of Article 4 and paragraph 2 of Article 12 of the Constitution of the Republic of Kazakhstan" clarified the concepts of human rights and freedoms. Recognition of rights and freedoms as absolute means their extension to every person located on the territory of the Republic of Kazakhstan, regardless of his or her citizenship of the Republic. The inviolability of human rights and freedoms means that a person cannot be deprived of established rights and freedoms by anyone, including the State, except in cases provided for by the Constitution and laws adopted on its basis. Laws establishing human rights and freedoms, with the exception of those listed in paragraph 3 of Article 39 of the Constitution, may be amended in accordance with the established procedure by the legislature, based on the real socio-economic capabilities of the State.
78 of the Constitution, the courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of man and citizen enshrined in the Constitution. If the court finds that a law or other normative legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional.
Article 39 of the Constitutional Law of the Republic of Kazakhstan dated December 29, 1995 "On the Constitutional Council of the Republic of Kazakhstan" establishes the consequences of the adoption of final decisions of the Constitutional Council. Part 2 of the text of this article states that "Laws and other legal acts recognized as unconstitutional, including infringing on the rights and freedoms of man and citizen enshrined in the Constitution, lose their legal force, are not subject to application and are repealed. Decisions of courts and other law enforcement agencies based on such a law or other legal act are not subject to execution."
Part 4 establishes the responsibility of the court and officials of the bodies authorized to consider cases of administrative offenses for violations of the law in the proceedings on administrative offenses. Moreover, an illegal decision made in the case of an administrative offense is recognized as invalid and the adopted legal acts are canceled.
The legal basis for holding a judge accountable for violating the rule of law when considering court cases, including cases of administrative offenses, is Article 39 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and the Status of Judges of the Republic of Kazakhstan." The cancellation or amendment of a judicial act does not in itself entail the responsibility of a judge, unless there have been gross violations of the law, which are indicated in the judicial act of a higher court.
For gross violations of the law by a judge when making a decision on an administrative offense, he is subject to disciplinary liability. The day of the discovery of a disciplinary offense related to the violation of legality by a judge during the consideration of a court case is considered to be the day of the entry into force of a judicial act of a higher court instance, which established the fact of violation of legality, and the day of the commission of such misconduct is considered to be the day of the issuance of an illegal judicial act.
An important circumstance is that the use of the term "gross violation" in the Constitutional Law on the Judicial System and the Status of Judges is local. That is, it only serves the purposes of industry legislation. In each specific case, depending on the type of legal proceedings, it is necessary to focus on the definitions used in the Code of Criminal Procedure, the Code of Civil Procedure and the Administrative Code. They are fixed in Article 436 of the CPC, Article 427 of the CPC, Article 843 of the Administrative Code.
Officials for an illegal decision made in the case of an administrative offense are brought to disciplinary responsibility if their actions do not contain signs of a criminally punishable act. The basis for disciplinary liability of officials may be a decision of a higher authority to revoke an illegal decision or a private court order, etc.
Based on Part 1 of Articles 829-19 of the Administrative Code, when cases of violations of the rule of law are identified, as well as the causes and conditions conducive to the commission of administrative offenses are established, the court issues a private decision and submits to the relevant organization and officials a submission on taking measures to eliminate them. The heads of organizations and other officials are required to review the private resolution within one month from the date of its receipt and report the measures taken to the court that issued the private resolution.
However, depending on the circumstances of the case, if there are signs of a criminally punishable act, an official may be held criminally liable for a wide range of criminal offenses. These may include such structures as the imposition of a knowingly unlawful sentence, decision, or other judicial act (Article 418 of the Criminal Code); abuse of power or official authority (Article 362 of the Criminal Code); assignment of authority to an official (Article 363 of the Criminal Code), etc. There may also be administrative liability provided for in Articles 100, 660 of the Administrative Code, etc.
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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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