Comment to article 740. Petitions The Code of the Republic of Kazakhstan on Administrative Offences
1. Persons participating in the proceedings on an administrative offense case have the right to file petitions that are subject to mandatory consideration by the judge, body (official) in charge of the case.
2. The application must be submitted in writing or in the form of an electronic document certified with an electronic digital signature, and is subject to immediate consideration. In cases where immediate consideration of the application is not possible, a decision on it must be made no later than three days from the date of the application.
3. The decision to grant a petition or to reject it in whole or in part shall be made in the form of a ruling, which shall be communicated to the person who submitted the petition.
Part 1. A petition is a request from a person participating in the proceedings on an administrative offense case addressed to the judge, the body (official) in charge of the case, for the implementation of a procedural action or the adoption of a procedural decision.
The legally guaranteed right to file petitions in a case serves as a tool for protecting the interests of participants in the proceedings, ensures the objectivity, comprehensiveness, and completeness of clarifying the circumstances of the case, and implements the principle of equality before the law and the court. Thus, on the basis of a petition, items and documents are accepted from persons who are participants in the proceedings on administrative offenses. At the request of the participants in the process, the judge or the body (official) conducting the proceedings establishes the inadmissibility of using factual data as evidence. At the request of the parties, the judge, the body (official) in charge of the administrative offense case may appoint an expert examination. According to part 8 of art . 772 of the Administrative Code, before sending a ruling on the appointment of an expert examination for execution, the judge or the body (official) who appointed the judicial examination is obliged to familiarize with it the person against whom proceedings are being conducted on an administrative offense and the victim, to explain to them the rights:
1) to challenge the expert or request the removal of the judicial examination body from the examination;
2) apply for the appointment of the persons indicated by them or employees of specific judicial examination bodies as experts, as well as for the examination to be conducted by a commission of experts;
3) request that additional questions be posed to the expert or that they be clarified.;
4) with the permission of the judge or the body (official) who appointed the forensic examination, to be present during the examination, to give explanations to the expert, except in cases that impede the examination;
5) to get acquainted with the expert's opinion or a message about the impossibility of giving an opinion after its receipt to the judge or the body (official) who appointed the forensic examination, to submit their comments, to file petitions for the appointment of additional or repeated examination, the appointment of new examinations.
If petitions are received from participants in the proceedings on an administrative offense, the time limit for consideration of the case may be extended by the body (official) reviewing the case, but not more than one month.
The circle of participants in the proceedings on administrative offenses is defined in chapter 38 of the Code. The right to file petitions is vested with:
- the person against whom the proceedings are being conducted;
- the victim;
- the defender;
- representative of the victim;
- legal representatives of an individual;
- representatives of an individual entrepreneur or a legal entity;
- The prosecutor.
The expert has the right to file petitions for the provision of additional materials necessary for giving an opinion.
The petitions filed are resolved by the judge, the body (official) in charge of the case. According to Article 818 of the Administrative Code, upon proceeding to consider a case of an administrative offense, the body (official) clarifies the right to file petitions and resolves the petitions filed. In accordance with Articles 829-6 of the Administrative Code, when preparing to consider a case, complaint, or protest, the court finds out whether there are petitions and resolves petitions. The court, having begun consideration of the case, complaint, protest, resolves the petitions filed (Articles 829-10 of the Administrative Code).
Part 2. The procedure for filing and timing of consideration of petitions is regulated by Part 2 of the commented article. The application can be submitted either in writing or electronically. The requirements for its registration in writing are not defined by the legislator in the article. Electronic documents are submitted to the court through the e-government web portal, the Unified Electronic Document Management System of government Agencies, and the Judicial Cabinet service of the Internet resource of the Supreme Court of the Republic of Kazakhstan. For filing electronic documents to the court through the specified resources, registration, processing and familiarization with them in the automated information and analytical system of judicial authorities of the Republic of Kazakhstan, the Rules of technical application of means of filing documents to the courts in the form of an electronic document, their registration, processing and familiarization with them are intended. They determine the procedure for the technical application of the means of submitting documents to the courts in the form of an electronic document, their registration, processing, and familiarization with them. In accordance with these Rules, an electronic document is a document in which information is presented in electronic and digital form and certified by means of an electronic digital signature. An electronic digital signature is a set of electronic digital symbols created by means of an electronic digital signature and confirming the authenticity of an electronic document, its affiliation and the immutability of its content.
The applicant fills out the electronic form of the statement of claim (statement), complaint, petition, withdrawal and other documents conforming to the requirements established by the Civil Procedure Code, the Criminal Procedure Code and the Code of the Republic of Kazakhstan on administrative offenses.
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 file petitions in their native language or another language they speak.
In order to make a timely decision on the application, it is subject to immediate consideration. In cases where immediate consideration of the application is not possible, a decision on it must be made no later than three days from the date of the application. When calculating the time limit by days, non-working hours are not included in it.
Part 3. The decision on the filed petition by the judge, body, official in whose proceedings the case is located, is formalized by a reasoned ruling. At the same time, in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5 "On the decision of the court in the case of an administrative offense", the resolution of petitions filed during the trial does not require the issuance of a separate ruling, except in cases where the issuance of a separate document is necessary for the commission of a separate procedural action (appointment expert examination, court order, demand for evidence, etc.). The grounds for rejecting petitions should be reflected in the court's decision in cases where it is related to the assessment of evidence or is otherwise essential for the consideration of the case on its merits.
The disagreement of the person in respect of whom proceedings are being conducted on an administrative offense, the victim, the legal representative of an individual, a representative of an individual entrepreneur, a legal entity, a defender, a prosecutor, with the court's ruling on the satisfaction or rejection of the application may be set out in a complaint, an appeal motion against the court's decision, issued as a result of consideration of the case on administrative violation, and is subject to mandatory investigation by the court of appeal when considering the said complaint., the appeal petition.
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
