Comment to article 21. Publicity of proceedings in cases of administrative offences of the Code of the Republic of Kazakhstan On Administrative Offences  

     1. The court and the bodies (officials) authorized to consider cases of administrative offenses shall conduct proceedings on these cases openly.

     2. In accordance with the law, closed proceedings are carried out in relation to cases containing information that are state secrets, as well as if the court, the body (official) authorized to consider cases of administrative offenses, petitions of a person involved in the case, referring to the need to ensure the secrecy of adoption, the preservation of personal, family, commercial or other legally protected secrets, information about intimate aspects of individuals' lives, or other circumstances that prevent an open trial.

     3. Personal correspondence and personal telegraphic messages of individuals may be disclosed in open proceedings only with the consent of the persons between whom the correspondence and telegraphic messages took place. Otherwise, the personal correspondence and personal telegraphic messages of these persons will be disclosed and investigated in closed proceedings. These rules also apply to the study of photographic and film documents, sound and video recordings, and information on electronic media containing personal information.

     4. Persons participating in the case and individuals present at the open proceedings have the right to record in writing or using audio recordings the progress of the proceedings from their places in the premises where the proceedings are conducted. Filming, photographing, videotaping, broadcasting on radio, television and Internet resources during production are allowed with the permission of the court, the body (official) authorized to consider cases of administrative offenses, taking into account the opinion of the persons involved in the case. These actions should not interfere with the normal course of production and may be limited in time.

     The principle of transparency is important in the administrative and procedural activities of courts and officials of authorized bodies with jurisdictional powers to consider cases of administrative offenses. Any citizen can participate in the consideration of a case with the permission of a judge or an official considering an administrative offense case. At the same time, it does not matter whether he is a participant in the administrative process. For example, representatives of the mass media, radio, television, public observers and other interested persons may be present during the consideration of an administrative offense case.  

     In accordance with part 1 of the commented article, courts, bodies (officials) authorized to consider cases of administrative offenses conduct proceedings on these cases openly. This is a general rule.  

     Paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of the application by courts of the norms of the General Part of the Code of Administrative Offences of the Republic of Kazakhstan" clarified that courts should create the necessary conditions to ensure the openness and transparency of proceedings on an administrative offence and the exercise of the right of citizens and organizations to receive information about such activities of courts and bodies (officials).

     In accordance with paragraph 1 of art. 14 of the International Covenant on Civil and Political Rights (New York, December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 No. 91, entered into force for the Republic of Kazakhstan on April 24, 2006) restriction of the publicity of judicial proceedings or part of it is permissible "for reasons of morality, public order or State security in a democratic in public or when the interests of the private life of the parties so require, or – to the extent that, in the opinion of the court, it is strictly necessary – in special circumstances when publicity would violate the interests of justice."

     Part 2 provides for cases where the principle of confidentiality must be respected and proceedings on an administrative offense are conducted behind closed doors.:

     1) when cases contain information that are state secrets;

     2) when petitions are received from participants in the administrative process about the need to ensure the secrecy of adoption, the preservation of personal, family, commercial or other legally protected secrets;

     3) when cases contain information about intimate aspects of individuals' lives;

     4) in cases of other circumstances preventing open proceedings.

     State secrets are information protected by the state, constituting state and official secrets, the dissemination of which is limited by the state in order to carry out effective military, economic, scientific, technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-investigative and other activities that do not conflict with generally accepted norms of international law.

     There is an explanation in this regard in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12. Closed-door proceedings in order to preserve state secrets are conducted only if there is information in the case file that is classified as state secrets. The petitions of the persons involved in the case about the need to ensure legally protected secrecy, information about the intimate aspects of the lives of individuals, if satisfied by the court, are also the basis for the trial of the case in closed proceedings. The conduct of the proceedings in closed proceedings is indicated in the minutes of the meeting, if conducted, as well as in the introductory part of the resolution adopted in the case.

     According to clause 5 of Article 10 of the Civil Code, commercial (business) secrets are protected by law. The procedure for determining the information constituting a commercial secret, the means of its protection, as well as the list of information that should not be part of a commercial secret, are established by art. 28 of the Entrepreneurial Code of the Republic of Kazakhstan.

     A business entity determines the circle of persons who have the right of free access to information constituting a trade secret and takes measures to protect its confidentiality. The procedure for classifying information into access categories, and the conditions for storing and using information constituting a trade secret are determined by the business entity. Measures taken by a business entity to protect information constituting a trade secret may include:

     1) determination of the list of information constituting a trade secret;

     2) restriction of access to trade secrets by establishing the procedure for handling this information and monitoring compliance with such procedure;

     3) accounting of persons who have gained access to trade secrets and (or) persons to whom this information has been provided or transferred.

     The right to privacy protection, including adoption, birth, medical, attorney's secrets, and bank deposit secrets, is provided for in art. 144 of the Civil Code. The publication of diaries, notes, notes and other documents is allowed only with the consent of their author, and letters - with the consent of their author and addressee. In the event of the death of any of them, these documents may be published with the consent of the surviving spouse and children of the deceased.

     Responsibility for the violation of the secrets listed in Part 2 of the article under study is provided for by codified legislation for the disclosure of information:

     1) who became known during mediation (art. 85 of the Administrative Code);

     2) about orphaned children, children left without parental care (Article 135 of the Administrative Code);

     3) and (or) dissemination of information obtained as a result of an audit and constituting a commercial or other legally protected secret (subclause 7) of Part 1 of Article 175 of the Administrative Code);

     4) on commercial or other secrets protected by the laws of the Republic of Kazakhstan, obtained from the creditor and (or) his representative, and (or) third parties (subclause 4) of Part 1 of art. 211-1 of the Administrative Code);

     5) on the secrecy of accounting information (Article 240 of the Administrative Code);

     6) on national registers of identification numbers (Article 468 of the Administrative Code);

     7) information constituting a tax secret (Article 473 of the Administrative Code);

     8) on the disclosure of primary statistical data, statistical information and (or) databases (art. 501 of the Administrative Code);

     9) in the field of protection of state secrets, as well as in working with official information of limited distribution (art. 504 of the Administrative Code);

     10) about the private life of a person who became known to them during preventive visits (Article 508 of the Administrative Code), etc.

     In certain cases, under a number of circumstances, criminal liability may occur.  

     Based on part 3 of the article in question, personal correspondence and personal telegraphic messages of individuals may be disclosed in open proceedings only with the consent of the persons between whom the correspondence and telegraphic messages took place. Otherwise, the personal correspondence and personal telegraphic messages of these persons will be disclosed and investigated in closed proceedings. These rules also apply to the study of photographic and film documents, sound and video recordings, and information on electronic media containing personal information.

     Personal data protection is based on the Law of the Republic of Kazakhstan dated May 21, 2013 No. 94-V "On Personal Data and their protection".

     Personal correspondence and personal telegraphic messages of individuals in the case of an administrative offense are recognized as documents containing factual data on the fact of the offense, and can be recognized as evidence.  

On the basis of Part 2 of Article 779 of the Administrative Code, documents may contain information recorded both in writing and in another form. Documents may include materials containing computer information, photographs and films, sound and video recordings, received, requested or submitted in accordance with the procedure provided for by the Administrative Code.  

     The judge, the body (official) in charge of the administrative offense case is obliged to take the necessary measures to ensure the safety of documents before resolving the case on the merits, as well as to make a decision on them at the end of the consideration of the case.

     It is allowed to publicly disclose documents about personal correspondence and telegraphic messages only with the consent of both parties involved in the correspondence and the exchange of information through telegraphic messages. If these parties do not agree to disclose such documents, the judge (official) must decide to disclose and examine them in closed proceedings, which is noted accordingly in the protocol on an administrative offense.

     Part 4 provides for the right of persons present at an open production to record in writing or using audio recordings the progress of production from their places in the premises where production is carried out.  

     Based on Articles 829-13 of the Administrative Code, all court sessions are recorded by the secretary of the court session using audio and video recordings. Audio and video recordings of court sessions are used only for the purposes of judicial proceedings to accurately record the course of the trial, as well as to establish factual data on cases of administrative offenses. Part 3 of art. 829-13 provides for the duty of a judge to provide the person against whom proceedings on an administrative offense are being conducted, as well as other participants in the proceedings on an administrative offense, with the opportunity to familiarize themselves with audio, video recordings, and a short protocol of the court session within three days after its signing.

     Moreover, in the implementation of paragraph 20 of the "National Plan - 100 concrete steps for the implementation of five institutional reforms" initiated by the Head of State, audio and video recording of all court proceedings has been introduced in the judicial system (without fail).  

     The court's use of audio and video recordings in the courtroom is regulated by Articles 282 of the CPC, Articles 347-1 of the CPC and Articles 829-13 of the Administrative Code, as well as by the regulatory decree of the Supreme Court of the Republic of Kazakhstan No. 25 dated December 6, 2002 "On compliance with the principle of transparency of criminal proceedings."

     The presence of audio and video recording plays an indispensable role in resolving complaints about the actions of judges and employees of the judicial system, disciplines both judges themselves and other participants in the process, and additionally obliges them to carefully observe the norms of law and ethics.

     After the end of the court session, audio and video recordings of the court session are viewed, signed with an electronic digital signature by the presiding judge and the secretary of the court session and stored on the server of the audio and video recording system in the regional court after data replication. Upon completion of the court session, the minutes of the court session using audio and video recording tools are transmitted in an automated mode to the Unified Automated Information and Analytical System of judicial authorities in text format with a link to audio and video recording. The shelf life of audio and video recordings attached to the case file as evidence (for example, audio and video recordings of crime scene inspection, etc.) is determined by a judicial act in accordance with the requirements of legislation on the fate of physical evidence.

     But despite this, representatives of the mass media and other persons involved in the process of considering an administrative offense case have the right to independently record all actions taking place at the meeting.

     Prerequisite: filming, photographing, videotaping, broadcasting on radio, television and Internet resources during production is allowed with the permission of the court, taking into account the opinions of the persons involved in the case.  

     The judge may not allow the recording of the court session if such actions interfere with the normal course of the proceedings. Also, permission to record the case review process may be limited in time.  

The Code of the Republic of Kazakhstan on Administrative Offences  

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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