Comment to article 668. Obstruction of the lawful activity of a lawyer The Code of the Republic of Kazakhstan on Administrative Offences
Obstruction of the legitimate activities of a lawyer or a bar association, legal advice, or law firm, expressed in the failure or refusal to submit, within the time limits established by law, upon written request, the necessary documents, materials, or information required for the performance of their professional duties, if these actions do not have signs of a criminally punishable act., -
entails a fine for officials in the amount of fifteen, for legal entities - in the amount of twenty monthly calculation indices.
The general object of the administrative tort under consideration is the normal activity of the institution of state power.
The generic object is social relations that ensure the established procedure for the activities of a lawyer or a bar association, legal advice, or law firm.
The objective side of the administrative offense under consideration is expressed in the form of inaction. So, despite the fact that the disposition of the article indicates the commission of an act in the form of obstruction (which can be carried out by active actions), at the same time, it is indicated that it should be expressed in the form of inaction, namely - failure to submit or refusal to submit, within the time limits established by law, upon written request, the necessary documents, materials or information required for the performance of their professional duties, if these actions have not caused significant harm to the rights, freedoms or legitimate interests of a person and citizen, the rights or legitimate interests of legal entities, the legally protected interests of society or the state.
If these acts have caused significant harm, liability arises in accordance with the competing rule existing in the Criminal Code of the Republic of Kazakhstan, which provides for liability for obstructing the legitimate activities of lawyers and other persons to protect human and civil rights, freedoms and legitimate interests, as well as providing legal assistance to individuals and legal entities (art. 435 of the Criminal Code).
Failure to provide the necessary documents, materials, or information upon written request should be understood as ignoring the requirements of a lawyer or bar association, legal advice, or law firm, imposed by them in view of their professional duties.
A refusal to submit the necessary documents, materials or information upon written request should be understood as sending an official written document to a lawyer or a bar association, legal advice, or law firm, in which the refusal is expressed.
According to the provisions of the Law "On Advocacy and Legal Assistance", a lawyer, acting as a defender or representative, is authorized, in accordance with the procedural law, to request and receive from all state bodies, local governments and legal entities the information necessary for the practice of law (paragraph 2, art. 33).
In accordance with Part 8 of Article 35 of the same Law, provision of the requested information to a lawyer may be refused if the information is classified as information with limited access.
In turn, according to paragraph 8 of Part 1 of the Law of the Republic of Kazakhstan "On Access to Information", information with limited access should be understood as information classified as state secrets, personal, family, medical, banking, commercial and other legally protected secrets, as well as official information marked "For official use".
The time limits established by law for the article in question are the time limits specified in Part 7 of Article 35 of the Law on Advocacy and Legal Assistance: "Government agencies, local governments, and legal entities are required to provide a written response to a lawyer's request for legal assistance within ten working days."
The deadline for responding to a request provided for by the legislation of the Republic of Kazakhstan, depending on the requested information, must be indicated in the request both on paper and in the request sent in electronic form.
Within the meaning of the commented article, the subjects of the offense are officials and legal entities to whom a written request has been sent for the provision of necessary documents, materials or information required to perform the professional duties of a lawyer or a bar association, legal advice, law firm.
The bringing of an official to administrative responsibility under Article 668 of the Administrative Code for failure to provide the necessary documents, materials or information required by a lawyer to perform their professional duties, or to provide such documents, materials or information in an incomplete manner, is indicated in paragraph 27 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06.10.2017 No. 7.
In accordance with Article 30 of the Administrative Code, an official is held administratively liable if he commits an administrative offense in connection with non-performance or improper performance of his official duties. Officials under the Administrative Code are recognized as persons who permanently, temporarily, or under special authority perform or were performing at the time of the commission of an administrative offense the functions of a government representative, or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative, or economic functions in government agencies, quasi-public sector entities, and local governments.
The subjective side of the administrative tort in question, in relation to an official, is characterized by his guilt in the form of direct and indirect intent. The presence of direct intent means that a person is aware of the unlawful nature of his actions to obstruct the legitimate activities of a lawyer, anticipates the occurrence of harmful consequences from his actions and desires their occurrence.
Indirect intent provides that a person is aware of the unlawful nature of his act (failure to submit or refusal to submit necessary documents, materials or information within the time limits established by law upon written request), does not directly want harmful consequences to occur, but consciously allows them or treats them indifferently.
Regarding the establishment of the guilt of a legal entity, we note that despite the fact that the principle of guilt is fundamental in the system of administrative legislation, there is a definite approach to establishing the guilt of a legal entity in administrative law.
In accordance with Article 33 of the Administrative Code, legal entities are subject to administrative liability for an administrative offense if the act (action or omission) provided for in the Special Part of the Administrative Code was committed, authorized, approved by an authority, a person performing the management functions of a legal entity, or an employee of a legal entity performing organizational, administrative or administrative functions.
Thus, the guilt of legal entities is considered through the guilt of individuals representing them, i.e. a subjective criterion is used. Thus, an organization can never act independently, and all its actions are mediated and expressed in the actions of those persons who, by virtue of law, constituent documents, other similar documents, or by virtue of specially issued powers, represent this organization in relations with third parties and act on its behalf, make decisions and (or) manage.
The sanction of the administrative norm in question is absolutely definite and provides for a fine imposed on officials in the amount of fifteen monthly calculation indices, on legal entities - in the amount of twenty monthly calculation indices.
Based on part 1 of Article 684 of the Administrative Code, cases of administrative offenses provided for in Article 668 of the Administrative Code are subject to consideration by judges of specialized district and equivalent administrative courts.
According to Part 1 of Article 804 of the Administrative Code, as well as according to Part 4 of the Order of the Minister of Justice of the Republic of Kazakhstan dated December 30, 2014 No. 398 "On approval of Instructions for the proceedings on administrative offenses by the judicial authorities of the Republic of Kazakhstan", the protocol on this offense is:
paragraph 33) authorized officials of the judicial authorities.
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
