Comment to Article 744. The person against whom proceedings are being conducted on an administrative offense of the Code of the Republic of Kazakhstan On Administrative Offenses
1. A person in respect of whom proceedings on an administrative offense are being conducted has the right to get acquainted with the protocol and other case materials, provide explanations, make comments on the content and design of the protocol, present evidence, file petitions and challenges, use legal assistance from a defense attorney, and speak in his native language or a language he speaks., and use the services of an interpreter free of charge if you do not speak the language in which the production is conducted.; to file a complaint on the application of measures to ensure the proceedings in the case, for violation of the law when drawing up a protocol on an administrative offense, if information is provided that does not correspond to the actual data and circumstances, for an order on the need to pay a fine and a decision on the case; to make extracts from it and make copies of the documents available in the case, as well as to use other the procedural rights granted to him by this Code.
2. The case of an administrative offense is considered with the participation of the person against whom the proceedings on the case of an administrative offense are being conducted. In the absence of the specified person, the case may be considered only if the administrative offense has been recorded by certified special control and measuring equipment and devices operating in automatic mode, or when there is evidence that he was properly notified of the place and time of the case and if he did not receive a request to postpone the case.
3. When considering a case on an administrative offense committed by a person under the age of eighteen, or the commission of which entails an administrative penalty in the form of administrative arrest, as well as administrative expulsion from the Republic of Kazakhstan of a foreigner or a stateless person or deprivation of a special right (except for the right to drive vehicles) granted to a person, the presence of a person involved in administrative responsibility, absolutely.
4. In case of evasion of the persons specified in part three of this article from appearing at the summons of a judge, body (official) considering the case of an administrative offense, in whose proceedings the case of an administrative offense is pending, this person may be brought.
The court's ruling on summoning is executed by a bailiff or an internal affairs body; the ruling of the body (official) considering the case of an administrative offense is executed by the internal affairs body (police).
5. A minor in respect of whom proceedings on an administrative offense are underway may be removed for the duration of consideration of the circumstances of the case, the discussion of which may adversely affect him.
Part 1. The person against whom proceedings on an administrative offense are being conducted is the subject of an administrative offense, i.e. the person who committed the administrative offense. In accordance with Article 28 of the Administrative Code, the subject of an administrative offense may be a sane individual who has reached the age of sixteen by the time the administrative offense ends or is suppressed, or a legal entity.
In accordance with Article 12 of the Civil Code, individuals are citizens of the Republic of Kazakhstan, citizens of other states, as well as stateless persons.
33 of the Civil Code of the Republic of Kazakhstan defines a legal entity: "A legal entity is an organization that has separate property by right of ownership, economic management or operational management and is responsible for its obligations with this property, can acquire and exercise property and personal non-property rights and obligations on its behalf, and be a plaintiff and defendant in court.".
An individual or a legal entity acquires the legal status of a person in respect of whom proceedings on administrative offenses are being conducted from the moment the protocol on an administrative offense is drawn up. From this moment on, this entity has the rights and obligations that constitute the content of the legal status of the person in respect of whom proceedings on an administrative offense are being conducted.
Article 1 of the Constitution of the Republic of Kazakhstan states that the highest values of the state are a person, his life, rights and freedoms. Such recognition means that the State, first of all, must do everything possible to promote the realization of human rights and freedoms enshrined in the Constitution.
Part 1 of the commented article defines a whole block of procedural rights of a person in respect of whom proceedings on an administrative offense are being conducted. These rights are a guarantee of ensuring the rights and legitimate interests of subjects of law brought to administrative responsibility.
It is worth noting that a person who has committed an administrative offense can use the provided rights at any stage of the proceedings on an administrative offense, starting from the moment it is initiated and ending with the execution of the decision on the imposition of an administrative penalty.
The bodies (officials) conducting proceedings on an administrative offense case are required to comply with the procedural rights established by the said article. In case of violation of the procedural rights of a person subject to administrative responsibility provided for by law, the proceedings on an administrative offense are recognized as illegal and are subject to termination.
The person against whom proceedings on an administrative offense are being conducted has the right to get acquainted with the protocol and other case materials, which gives him the opportunity to find out the grounds for bringing him to administrative responsibility, as well as to get acquainted with the evidence confirming his guilt in the committed offense.
After reviewing the protocol and other case materials, the person brought to administrative responsibility may provide explanations, make comments on the content and design of the protocol, provide evidence of his innocence, absence of an event or corpus delicti, as well as file petitions and challenges.
The guarantee of protection of the rights and freedoms of a person against whom proceedings on an administrative offense are being conducted is his right to use the legal assistance of a defender (lawyer). The authorized official who drew up the protocol on an administrative offense is obliged to explain to the person who committed the offense his right to legal assistance from a defender. A person brought to administrative responsibility has the right to invite a defender to participate in the case on his own, if he so wishes.
If a person does not have the opportunity to invite his lawyer, the authorized official conducting the administrative proceedings is obliged to ensure the participation of the defender in the proceedings on an administrative offense. A person brought to administrative responsibility can use the defender's service at any time of the day, from the moment the protocol on an administrative offense is drawn up. A person also has the right to refuse the services of a lawyer to provide legal assistance and to protect their rights during administrative proceedings on their own, as indicated in the protocol on an administrative offense.
The right to use one's native language is an inalienable human right. Article 19 of the Constitution of the Republic of Kazakhstan states that everyone has the right to use their native language or the language they speak. In addition, the legal basis for the functioning of languages in the Republic of Kazakhstan, the duties of the state in creating conditions for their development, ensuring equal respect for all languages used in the Republic of Kazakhstan, without exception, are established by the Law of the Republic of Kazakhstan dated July 11, 1997 "On Languages in the Republic of Kazakhstan".
A person brought to administrative responsibility has the right to use his native language, or the language he speaks, at any stage of the proceedings on an administrative offense.
If the person being held administratively liable does not speak the language in which the proceedings are conducted, the body conducting the proceedings on the administrative offense case is obliged to appoint an interpreter for him. Moreover, the services of an interpreter should be provided to a person free of charge.
A person against whom proceedings on an administrative offense are being conducted has the right to appeal any actions of officials conducting administrative proceedings to higher authorities or a court.
The procedure for such an appeal is regulated by the norms of Chapter 44 of the Administrative Code. The right of persons involved in proceedings on administrative offences to judicial protection is also enshrined in paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan.
A person in respect of whom proceedings on an administrative offense are being conducted has the right to refuse to give an explanation on the fact of the offense committed by him or her and to sign a protocol on an administrative offense. In this case, the authorized official who drew up the administrative protocol must, in the presence of witnesses, record in writing the fact that the person refused to sign the protocol on an administrative offense.
Part 2. A person in respect of whom proceedings on an administrative offense are being conducted has the right to personally participate in the consideration of an administrative offense case or, if it is a legal entity, to have a legal representative participate.
This provision is intended to facilitate the most effective use of the procedural rights of the person being held accountable.
At the same time, the norms of the Administrative Code provide for the consideration of a case of an administrative offense even in the absence of a person being held administratively liable. Such an exception is permissible in cases where there is reliable information about the proper notification of this person about the place and time of consideration of the case and if the person has not received a request for postponement of the case, as well as if the administrative offense was recorded by certified special control and measuring equipment and devices operating in automatic mode.
Proper notification of the persons participating in the proceedings on an administrative offense about the time and place of consideration of the case is a prerequisite for consideration of the case on an administrative offense. A notification is appropriate when, by the beginning of the consideration of an administrative offense case, the court, body (official) has information about the receipt by the addressee of a summons or other feedback provided for in art. 743 of the Administrative Code.
However, another situation may arise when the court, body (official) has not received notification of the notification of the addressee, but the person himself appeared for consideration of the case. In this case, you should not assume that the notification was inappropriate. Since the person is present at the hearing of the case, it means that there is every reason for it to be conducted.
A person summoned by a summons has the right to file a written motion to postpone consideration of an administrative offense case against him if he received the summons prematurely (a short period of time before the case was considered), and for some valid reasons cannot appear in court or to an official for consideration of the case within the prescribed time.
Proper notification also takes place if the person has refused to receive a subpoena from a court or a government agency, and this refusal has been recorded in writing.
Improper notification is recognized if the person has not been notified of the place and time of consideration of the case of an administrative offense due to the fault of the court or the official reviewing the case. For example, a summons was mistakenly sent to another address or in the name of another person, was not given to the person or adult family members living with him on purpose, but was handed to the person's friends or neighbors, or dropped into the mailbox, etc. In such cases, the person being held administratively liable has no real opportunity to find out about the place and time of the administrative offense case.
Part 3. In cases established by the Administrative Code, the participation of a person who has committed an offense in the consideration of an administrative case is not a right for him, but an obligation.
In such cases, if a person fails to appear for consideration of an administrative offense case, the court session is postponed to a later date, and subsequently, on the basis of a court ruling, a summons is applied to this person according to the rules of art. 790 of the Administrative Code, taking into account the provisions of the commented article (parts 3 and 4). According to Part 3 of the commented article, such cases are:
- consideration of an administrative offense case against a person who was under the age of eighteen at the time of the commission of the offense;
- consideration of a case of an administrative offense, for which the norms of the Administrative Code provide for the imposition of an administrative penalty in the form of:
a) administrative arrest;
b) administrative expulsion from the Republic of Kazakhstan of a foreigner or a stateless person;
c) deprivation of a special right (except for the right to drive vehicles).
Consideration of cases of administrative offenses in transport, for which the imposition of an administrative penalty in the form of deprivation of the right to drive a vehicle is provided, is possible without the participation of the person who committed the offense, in the case provided for in part 2 of the commented article.
Part 4. For refusal or evasion from appearing in court, the body (official) considering the administrative case that led to the postponement of the case, the person against whom proceedings on an administrative offense are being conducted is subject to administrative responsibility in accordance with art. 654 of the Administrative Code, and a summons may be applied to him.
Part 4 also provides a list of authorized officials who are required to bring a person to justice in cases established by law. The drive is performed in accordance with art. 790 of the Administrative Code. If the decision on the drive is made by the court, then this measure is carried out by a bailiff or by employees of the internal affairs bodies (mainly by employees of administrative police units). If a ruling on the production of a drive is issued by another state body authorized to consider cases of administrative offenses, then the drive is carried out by police officers. Article 790 of the Administrative Code states that the drive can also be carried out by financial police officers.
Part 5. As mentioned above, when considering a case of an administrative offense against a minor, his presence at the stage of consideration of the case is mandatory. However, the body (official) considering the case of an administrative offense has the right to temporarily suspend a minor from participating in the consideration of the case, for the period of consideration of the circumstances of the committed act, the discussion of which may negatively affect him. These circumstances may cause inappropriate behavior of the minor during the consideration of the case or have an undesirable influence on him from other persons present. As an example, the following can be cited: threats against a minor from those present, criminal information about adults who have committed an offense with or against a minor, a detailed examination of any circumstances of the offense committed concerning the humiliation of human honor and dignity, an audacious violation of public order, immorality, etc.
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
