Comment to Article 748. Defender of the Code of the Republic of Kazakhstan on Administrative Offences
1. Defender is a person who, in accordance with the procedure established by law, protects the rights and interests of a person subject to administrative responsibility and provides him with legal assistance.
2. Lawyers are involved as defenders. Along with lawyers, the spouse, close relatives, or legal representatives of the person being held administratively liable are allowed to act as defenders. Foreign lawyers are allowed to participate in the case as defenders, if this is provided for by an international agreement of the Republic of Kazakhstan with the relevant state on a reciprocal basis, in accordance with the procedure established by law.
3. The defender is allowed to participate in the case from the moment of administrative detention of the person being held administratively liable, initiation of proceedings on an administrative offense, as well as at any stage of proceedings on an administrative offense.
4. One and the same person cannot be a defender of two participants in the proceedings on administrative offenses if the interests of one of them contradict the interests of the other.
5. A lawyer may not refuse to participate as a defender in an administrative offense case, except in cases provided for by the legislation of the Republic of Kazakhstan.
Part 1. In accordance with paragraph 3 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to receive qualified legal assistance. In order to effectively protect the rights and legitimate interests of a person being held administratively liable, a defense attorney may participate in the proceedings on an administrative offense. The defender is authorized to defend the legitimate interests of the person against whom proceedings on an administrative offense are being conducted and to provide legal assistance in the exercise of his rights. A person who is brought to administrative responsibility has the right to choose his defender independently and voluntarily in accordance with his own requirements.
The defender independently determines his procedural position based on an internal conviction based on a comprehensive assessment of the materials of the administrative offense case. At the same time, he is guided by the law and his sense of justice. Of course, the defender consults with the person against whom proceedings on an administrative offense are being conducted, takes into account his arguments and considerations, but makes the final decision independently and is fully responsible for it. Despite the procedural independence, the position of the defender is characterized by the one-sided nature of his activity: he is obliged to identify only the circumstances justifying the person against whom the proceedings are being conducted or mitigating his responsibility. The defender must also explain to the person against whom the proceedings are being conducted, his right to invite another defender or to refuse a defender altogether.
Part 2. A lawyer may participate as a defender in the proceedings on an administrative offense. In accordance with paragraph 1 of art. 32 of the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and legal assistance", a lawyer is a citizen of the Republic of Kazakhstan who has a higher legal education, has received a license to practice law, is a member of the bar association and provides legal assistance on a professional basis within the framework of advocacy regulated by the Law of the Republic of Kazakhstan "On Advocacy and legal aid".
Qualified legal assistance provided on a professional basis by lawyers in accordance with the procedure established by the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance" in order to protect and assist in the realization of the rights, freedoms and legitimate interests of individuals and legal entities is recognized as advocacy in the Republic of Kazakhstan.
The lawyer's authority to conduct a specific case is certified by a warrant issued by a legal consultation or law firm, and when he carries out his activities individually without registering a legal entity, by the presidium of the bar association.
A foreign lawyer may also be allowed to participate in the proceedings on an administrative offense if his participation as a defender is provided for by an international agreement between the Republic of Kazakhstan and the foreign state of which he is a citizen. The powers of a foreign lawyer who carries out his activities on the basis of a relevant international treaty ratified by the Republic of Kazakhstan are confirmed by identity documents, the lawyer's status and his authority to provide legal assistance.
The spouse, close relatives, or legal representatives of the person being held administratively liable are also allowed to defend themselves in the case of an administrative offense.
In accordance with Article 1 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family", a person's close relatives are his parents, children, adoptive parents, adopted children, full- and half-siblings, grandparents, grandchildren.
The legal representatives of a minor, an incapacitated or a person with limited legal capacity may be his parents, adoptive parents, guardians, trustees or other persons dependent on or under whose care he is.
Part 3. The defender has the right to participate in administrative proceedings from the moment the case of an administrative offense is initiated. If an individual is detained in connection with the commission of an administrative offense, the defense attorney is allowed to participate in the proceedings on the administrative offense from the moment of the administrative detention of the person.
The defender is allowed to participate in administrative proceedings not only at the stage of initiation of an administrative offense case, but also at all subsequent stages of proceedings on administrative offenses. In other words, the decision to involve a defender, despite the previously stated refusal to do so, can be made by a person at any stage (stage) of the administrative proceedings in the case.
Part 4. In the proceedings on administrative offenses, the number of defendants who can be provided with legal assistance by the same defender is not limited. However, the norms of the Administrative Code prohibit a defender from simultaneously defending the rights and legitimate interests of two persons involved in the proceedings on an administrative offense, whose interests contradict each other. For example, both participants in a traffic accident do not admit their guilt in the committed act and consider themselves victims. In such a situation, the rights and legitimate interests of each participant in an accident must be protected by a separate defender.
Part 5. A lawyer who has assumed the protection of a person brought to administrative responsibility may not subsequently withdraw from it, even if he does not share the position of the client, except in cases established by the legislation of the Republic of Kazakhstan. Such cases are provided for by the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance". In accordance with paragraph 8 of Article 33 of the said law, a lawyer is prohibited from providing legal assistance.:
- if there is a conflict of interest;
- if there are circumstances stipulated by the procedural legislation that exclude the participation of a lawyer in the case.
The moment when the lawyer assumes the defense is considered to be the achievement of an agreement between the lawyer and the client on the provision of legal assistance.
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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