Comment to Article 738. Language of production of the Code of the Republic of Kazakhstan On Administrative Offenses
1. Proceedings on administrative offences in the Republic of Kazakhstan are conducted in the official language, and if necessary, Russian or other languages are used in the proceedings along with the state language.
2. The judge, the bodies (officials) authorized to consider cases of administrative offenses, if necessary, to change the language of the proceedings, make a reasoned decision on changing the language of proceedings in the case of an administrative offense.
3. Persons participating in the case who do not speak or do not speak the language in which the proceedings are conducted, are explained and provided with the right to make statements, give explanations and testimony, file petitions, bring complaints, get acquainted with the case materials, speak during its consideration in their native language or another language they speak, free of charge. use the services of an interpreter in accordance with the procedure established by this Code.
4. Persons participating in the proceedings on administrative offenses are provided free of charge with translation into the language of the proceedings of the case materials required by them by virtue of the law, set out in another language.
5. The procedural documents to be served to the offender and the victim must be translated into their native language or into the language they speak.
6. Translation expenses and translation services are paid from the state budget.
Part 1. The norms of the commented article meet the requirements of the provisions of the Basic Law of the Republic of Kazakhstan – the Constitution. Thus, according to Article 7 of the Constitution, "the Kazakh language is the state language in the Republic of Kazakhstan. Russian is also officially used in government organizations and local governments along with Kazakh. The state takes care of creating conditions for the study and development of the languages of the people of Kazakhstan." The Constitution also establishes the right of everyone to use their native language and culture, to freely choose the language of communication, upbringing, education and creativity (paragraph 2 of Article 19). No one may be discriminated against in any way on the grounds of language (art. 14, para. 2).
The state language is the language of public administration, legislation, judicial proceedings and record keeping, operating in all spheres of public relations throughout the state (Article 4 of the Law "On Languages in the Republic of Kazakhstan").
The Law of the Republic of Kazakhstan dated July 11, 1997 "On Languages in the Republic of Kazakhstan" establishes the legal basis for the functioning of languages in the Republic of Kazakhstan, the duties of the state in creating conditions for their study and development, and ensures equal respect for all languages used in the Republic of Kazakhstan, without exception. Article 7 of the mentioned Law states that infringement of the rights of citizens on the basis of language is not allowed in the Republic of Kazakhstan. The actions of officials who impede the functioning and learning of the state and other languages represented in Kazakhstan entail liability in accordance with the laws of the Republic of Kazakhstan.
The application of the principle of the language of judicial proceedings is a legal guarantee of ensuring the protection of the rights and freedoms of persons participating in the judicial process. Failure to comply with the requirements of the legislation on the language of legal proceedings is a significant violation of the procedural rules of the Administrative Code and, in accordance with Article 843 of the Administrative Code, entails the cancellation of the decisions rendered.
Part 2. According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 13 dated December 22, 2016 "On certain issues of the application of the principle of the language of judicial proceedings", the necessary cases of the use of other languages include circumstances by virtue of which the performance of procedural actions and decision-making in a particular language will ensure respect for the rights and legitimate interests of participants in legal proceedings. When these circumstances are established, the judge, the bodies (officials) authorized to consider cases of administrative offenses, make a reasoned decision on changing the language of proceedings in the case of an administrative offense.
Thus, when considering the case of an administrative offense against K.R. Anarbekov, court No. 2 of the Kokpektinsky district of the East Kazakhstan region changed the language of the proceedings. It follows from the case file that the protocol on an administrative offense against the offender was drawn up in Russian. However, in preparing for the case, the judge found out that K.R. Anarbekov was not fluent enough in Russian and wanted to change the language of the proceedings. The judge, having applied the requirements of Part 2 of art. 738 of the Administrative Code, issued a resolution on changing the language of production from Russian to the state language.
Part 3. The judge and the bodies (officials) authorized to consider cases of administrative offenses must explain to the persons participating in the case their rights and obligations regarding the language of the proceedings.
Persons who do not speak or do not speak the language in which the proceedings are conducted should be provided with the right to make statements, give explanations and testimony, file petitions, bring complaints, get acquainted with the case materials, speak during its consideration in their native language or another language they speak, and use the services of an interpreter free of charge in accordance with the procedure established by the, established by the Administrative Code.
Persons who do not speak or do not sufficiently speak the language in which the proceedings are conducted include persons who do not understand or do not sufficiently understand speech in the language of the proceedings, cannot freely express their thoughts and opinions in this language, and also experience other difficulties when talking, reading texts, or answering questions., in oral and/or written speech.
It is worth noting that the range of persons who have the right to use the services of an interpreter for free is not limited by the legislator. It can be used by any of the participants in the proceedings on an administrative offense.
Part 4. The judge, the bodies (officials) authorized to consider cases of administrative offenses must ensure to the persons participating in the proceedings their right to free translation of the case materials necessary to them by virtue of the law, presented in another language, into the language of judicial proceedings.
The translation must be correct and accurate. The accuracy of the translation is confirmed by the translator's signature in the relevant document. The translator is warned about administrative responsibility for performing a deliberately false translation when considering a case of an administrative offense by an authority (official) authorized to consider cases of administrative offenses, and about criminal liability for committing this act in court.
Part 5. Decisions of authorized bodies and courts, as well as other documents subject to mandatory delivery to the offender and the victim, must be made not only in the language of the proceedings, but also in the language spoken by the relevant participant in the proceedings. The translation of the document must be made, executed and handed over to the person concerned within the time limits set by the Administrative Code, so that he has a real opportunity to protect his rights.
Part 6. The costs associated with translation and the participation of an interpreter cannot be an obstacle to the realization by the persons involved in the case of the right to use one or another language they speak.
Translation expenses and translation services are paid from the state budget in accordance with Resolution No. 152 of the Cabinet of Ministers of the Republic of Kazakhstan dated February 25, 1992 "On Approval of Instructions on the procedure and Amounts of Reimbursement of expenses and remuneration to persons in connection with their summons to the bodies of inquiry, preliminary investigation, prosecutor's office or court".
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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