Comment to article 763. Challenges of persons whose participation in the proceedings is not allowed  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. If there are circumstances provided for in Article 762 of this Code that exclude the possibility of participation of a defense lawyer, representative, prosecutor, expert and translator in proceedings on an administrative offense, these persons are subject to recusal.

     2. An application for self-recusal or disqualification shall be submitted to the judge, body (official) in charge of the administrative offense case.

     3. An application for self-recusal or recusal is considered within three days from the date of filing the application.

     4. Having considered the application for self-recusal or recusal, the judge, the body (official) shall issue a ruling on the satisfaction of the application or on the refusal to satisfy it.

     Part 1. The commented article assigns the initiative of recusal to some persons involved in the proceedings on an administrative offense. If there are circumstances precluding the possibility of participating in administrative proceedings specified in Article 762 of the Administrative Code, the prosecutor, expert, translator, representative of the victim, defender of the person brought to administrative responsibility, are necessarily subject to recusal. A challenge is understood as the removal of participants in administrative proceedings from participation in the consideration of a case, carried out in the event of their personal interest (direct or indirect) in the outcome of the case, or if there are other circumstances that cast doubt on their impartiality.

     Part 2. The issue of recusal may arise only on the basis of an application submitted to the judge, the body (official) in whose proceedings the case is. However, this article does not specify the possibility for the officials in charge of the case to initiate the issue of recusal of the above-mentioned persons themselves, as it is, for example, established for an official in art. 815 of the Administrative Code.

     However, based on the content of Article 762 of the Administrative Code, it can be assumed that the establishment of circumstances precluding the possibility of participation in the proceedings on an administrative offense cannot depend solely on the initiative of the persons involved in the proceedings. The judge or the body (official) in charge of the administrative offense case must also have the right to initiate a challenge.

     It should be noted that the institution of recusal is scattered and scattered according to the norms of the Administrative Code throughout its text. So, for example, the grounds for challenging a person performing procedural actions who does not have the right to conduct proceedings are fixed in Articles 814-815 of the Administrative Code.

     The grounds for disqualification of persons participating in the procedural action who are subject to disqualification are fixed in Articles 762-763 of the Administrative Code. The expert's challenge is actually fixed in Article 772 of the Administrative Code, etc.

     Part 3. The commented article sets a deadline for consideration by a judge or an official of a participant in the proceedings to recuse himself. This period includes three days, after which the judge, the body considering the case of an administrative offense, must satisfy the person's challenge or refuse it.  

     Part 4. The issue of recusal or self-recusal is decided by the judge, the body (official) in charge of the administrative offense case on the basis of relevant statements, as a result of which a ruling is issued on the satisfaction of the application or refusal to satisfy it.  

     One of the problems of practice is the so-called "recusal", that is, cases when the recusal is declared to the person considering the issue of recusal. At the same time, the number of such requests for recusal may be not one, but several. Despite the fact that judicial practice on this issue is fragmented, in fact, we can talk about abuse of law. This is due to the lack of legislative restrictions on this right for the relevant persons.

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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