Comment to article 737. Tasks of proceedings in cases of administrative offences  The Code of the Republic of Kazakhstan on Administrative Offences  

     The objectives of the proceedings in cases of administrative offences are:

     1) timely, comprehensive, complete and objective clarification of the circumstances of each case, and its resolution in accordance with this Code;

     2) ensuring the implementation of the rights and obligations of production participants;

     3) identification of the causes and conditions that contributed to the commission of administrative offenses;

     4) ensuring the execution of the decision in the case of an administrative offense, the instruction on the need to pay a fine.

     The tasks of administrative offences proceedings listed in the commented article follow directly from the general objectives of the legislation on administrative offences and specify them in relation to proceedings on administrative offences. They determine the meaning and content of the production itself. Each of the tasks requires a separate characteristic.  

     1) Timely, comprehensive, complete and objective clarification of the circumstances of each case, and its resolution in accordance with the Code.

     Timeliness implies the obligation of authorized bodies to carry out the necessary actions within the proper procedural time limits established by law, preventing their violation and red tape in the case.  

     In general, deadlines are an important component of administrative legislation. This is due to the well-established opinion in judicial practice that the promptness of the process is possible only with strict time limitation and control over it. This approach is contrasted with the institution of reasonable deadlines. Its first and not entirely successful attempt at integration into national legislation was made in 2015 in the CPC in article 192. However, it is difficult to recognize this attempt as successful, since immediately after indicating the reasonableness of the term in part 1 of this article, in the second part and further along the text, specific terms of the pre-trial investigation are given, which, in fact, detract from the indications of their reasonableness. The second and successful attempt was made in the draft of the new Administrative Procedural Code, which defines the reasonableness of the time period for judicial proceedings in public law disputes without specifying, similar to the CPC.  

     Comprehensiveness and completeness lies in the detailed and exhaustive establishment and procedural consolidation of the circumstances relevant to the proper resolution of the case. These include information about whether an administrative offense has been committed, whether the person is guilty of committing it, whether he is subject to administrative responsibility, whether there are circumstances mitigating and aggravating liability, whether there are circumstances precluding proceedings in the case, as well as circumstances that make it possible not to bring the person to administrative responsibility.

     The content of these definitions is described in detail in the commentary to the articles of the General Part of the Administrative Code.  

     Objectivity consists in the unbiased, impartial conduct of proceedings in cases of administrative offenses. The bodies authorized to consider the case are obliged to prevent bias, as well as one-sided bias in the proceedings.

     Unfortunately, the Administrative Code lacks a special industry principle present in the CPC – a comprehensive, complete and objective investigation of the circumstances of the case (Article 24 of the CPC). However, this does not mean that it is ignored in administrative proceedings. The inclusion of the requirement of objectivity among the tasks confirms this.  

     In addition, the requirement of objectivity, as well as comprehensiveness and completeness, are included by the legislator in the norms of Section 4 of the Administrative Code, which regulates the specifics of the turnover of factual data that may be evidence in a case.  

     For example, Article 783 of the Administrative Code states that "all evidence collected in an administrative offense case is subject to thorough, comprehensive and objective verification" or Part 2 of Article 784 of the Administrative Code, "a judge, body (official) conducting proceedings in an administrative offense case assesses evidence according to their inner conviction based on a comprehensive a full and objective examination of the evidence in its entirety, guided by the law and conscience."  

     The resolution of a case in accordance with the Code is considered as a requirement for strict adherence to the procedural norms of legislation on administrative offenses. According to Part 3 of Article 8 of the Code, 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.

     2) Ensuring the implementation of the rights and obligations of production participants.

     The participants in the proceedings on an administrative offense, their rights and obligations are defined in Chapter 38 of the Administrative Code. The bodies authorized to consider cases of administrative offenses are obliged to protect the rights and freedoms of citizens involved in the proceedings, create conditions for the performance of their duties, and take timely measures to meet the legitimate demands of the participants in the proceedings.  

     The Code pays special attention to the rights and freedoms of citizens, both in terms of establishing responsibility for encroachments on them by other persons or government agencies, and in terms of consolidating legal mechanisms for protecting citizens' rights in administrative proceedings, including at the stage of reviewing decisions on administrative offenses. An important place here is occupied by the means of protecting their rights established by the Code, namely, appealing against the actions (inaction) of the body (official) conducting the proceedings on an administrative offense, as well as the decision issued in the case of such an offense. In particular, an appeal against the actions (inaction) of the body (official) conducting proceedings on an administrative offense is allocated to an independent chapter of the Code.

     3) Identification of the causes and conditions that contributed to the commission of administrative offenses.

     When conducting proceedings on cases of administrative offenses, authorized bodies cannot limit themselves to responding only to offenses that have already been committed. One of the general objectives of the legislation on administrative offenses is the prevention of offenses. In this regard, when considering cases, authorities (officials) are required to take the necessary measures to identify the causes and conditions that contributed to the commission of offenses and, in accordance with their powers, seek to eliminate these causes and conditions. According to art . 826 of the Administrative Code, when establishing the causes and conditions conducive to the commission of administrative offenses, the body (official) submits to the relevant organization and officials a submission on taking measures to eliminate them. According to Articles 829-19 of the Code, when determining the causes and conditions conducive to the commission of administrative offenses, the court issues a private decision and submits to the relevant organization and officials a submission on taking measures to eliminate them.

     The idea of eliminating the causes and conditions conducive to the commission of offenses, in accordance with Article 23 of the Law of the Republic of Kazakhstan dated April 29, 2010 "On the prevention of offenses", refers to measures of individual prevention of offenses. Individual crime prevention measures are used to systematically target the legal awareness and behavior of a person or a limited number of people in order to prevent them from committing offenses, as well as eliminate the causes and conditions conducive to their commission.

     Within one month from the date of receipt of the submission, the head or official of the relevant organization must provide in writing information on the results of consideration of the submission and the measures taken to the state body. Failure by the head of the organization and other persons to report on the measures taken, as well as failure to take measures to eliminate the causes and conditions conducive to the commission of administrative offenses, according to the representations of the authorities (officials) who considered the case, entails administrative responsibility under Article 479 of the Administrative Code.

     4) Ensuring the execution of the decision in the case of an administrative offense, the instruction on the need to pay a fine.

     Based on the norms of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2010 No. 5 "On the decision on the case of an administrative offense", it can be concluded that the decision on the case of an administrative offense is a procedural document, which reflects the outcome of the proceedings in the case of an administrative offense.

     Having considered the case of an administrative offense, the body (official) issues one of the following resolutions on:

     1) imposition of an administrative penalty;

     2) termination of the proceedings.

     Having considered the case of an administrative offense, complaint, protest, the court issues one of the following decisions on:

     1) imposition of an administrative penalty;

     2) termination of the proceedings on the case;

     3) leaving the resolution or regulation unchanged, and the complaint or protest without satisfaction;

     4) amendment of the resolution;

     5) cancellation of the resolution, instruction and termination of the case;

     6) the cancellation of the resolution, the prescription and the issuance of a new ruling on the case.

An order is a document of a simplified final form of administrative proceedings, which implies recording the moment when a violation was committed. Traffic regulations for which administrative responsibility is provided. The order is not issued by the executor, it is executed automatically, after which the responsible person prints it out and sends it by mail. Thus, the issuance of an order on the need to pay a fine, issued automatically, as well as the indications of a certified device, cannot be attributed to the actions (inactions) of an official, since the order on the need to pay a fine is issued automatically by a technical means. For the same reasons, an order cannot be a decision on the imposition of an administrative penalty issued by an authorized official in accordance with art. 822 of the Administrative Code.

     Like any law enforcement process, proceedings in cases of administrative offenses are not limited to making a decision on the case. It is not enough just to make a ruling on an administrative offense case, an order on the need to pay a fine, their actual execution is necessary. Failure to execute or improperly execute a decision in an administrative offense case or an order to pay a fine devalues all the work carried out by the authorized bodies in the framework of the proceedings, indicates the lack of legal protection of the participants in the proceedings and public relations protected by legislation on administrative offenses. The effectiveness of such legislation and the activities of authorized bodies based on its norms is subject to reasonable public criticism.

     In order to comply with the resolution adopted in the case, the authorized official has the right, within the limits of his authority, to apply the following measures to ensure the proceedings in the case of an administrative offense to an individual:

     1) delivery to the place of drawing up the protocol on an administrative offense;

     2) administrative detention of an individual;

     3) Drive;

     4) personal search and inspection of things that are with an individual;

     5) inspection of vehicles, small vessels;

     6) seizure of documents and belongings;

     7) suspension from driving a vehicle or small vessel and its examination for alcohol, narcotic, substance abuse intoxication;

     8) detention, delivery and prohibition of operation of a vehicle or small vessel;

     9) Inspection;

     10) medical examination of an individual for alcohol, narcotic or substance abuse intoxication;

     11) suspension or prohibition of activities or certain types of activities.

     The following measures may be applied to a legal entity to ensure proceedings in the case of an administrative offense:

     1) inspection of premises owned by a legal entity, territories, goods, vehicles and other property located there, as well as relevant documents;

     2) seizure of documents belonging to a legal entity;

     3) seizure or seizure of goods, vehicles and other property belonging to a legal entity;

     4) suspension or prohibition of activities or certain types of activities.

     Measures to ensure the proceedings in the case of an administrative offense may be applied at the stage of execution of the decision on the case of an administrative offense, before the initiation of proceedings on an administrative offense, during the proceedings.

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  

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