Comment to article 829-10. The procedure for considering an administrative offense case, complaint, protest against a decision on an administrative offense case, an order on the need to pay a fine, a decision of a higher authority (official) on the complaint, protest The Code of the Republic of Kazakhstan on Administrative Offences
1. The court, having begun consideration of the case, complaint, protest:
1) announces who is considering the case, which case, complaint, protest are subject to consideration, who is being held accountable and on the basis of which article of this Code, determines the language of the proceedings;
2) certifies the appearance of the person being held administratively liable or his representative, as well as other persons participating in the consideration of the case, complaint, protest;
3) establishes the identity of the participants in the proceedings and verifies the powers of the legal representatives of the persons, the defender;
4) finds out the reasons for the non-appearance of the participants in the proceedings and decides on the consideration of the case, complaint, protest in the absence of the specified persons or on the postponement of the consideration of the case, complaint, protest;
5) if necessary, issues a ruling on the summoning of a person whose participation is mandatory during the consideration of a case, complaint, protest, appoints an interpreter;
6) explains to the persons participating in the consideration of the case their rights and obligations provided for by this Code, including the right to receive free legal aid at the expense of the state budget;
7) resolves the filed challenges and petitions;
8) announces the protocol on the administrative offense, the complaint, the protest, and, if necessary, other case materials.;
9) hears the explanations of the person in respect of whom the proceedings are being conducted, the testimony of other persons participating in the proceedings, the explanations of the specialist and the expert's opinion, examines other evidence, and in the case of the prosecutor's participation in the consideration of the case, complaint, protest hears his conclusion.;
10) issues a ruling on the postponement of consideration of a case, complaint, protest in connection with: an application for self-recusal or recusal of a judge, if his recusal interferes with the consideration of the case, complaint, protest on its merits; with the recusal of a defender, an authorized representative, an expert or an interpreter, if the said recusal interferes with the consideration of the case, complaint, protest essentially; with the need for the appearance of persons participating in the consideration of the case, complaint, protest, or the request for additional materials on the case, complaint, protest, as well as in the cases provided for in the second part of Article 51 of this Code. If necessary, the court issues a ruling on the appointment of an expert examination.;
11) issues a ruling on the extension or suspension of the time limits for consideration of a case, complaint, protest;
12) issues a ruling on the transfer of the case for consideration on the merits in the cases provided for in Articles 829-9 of this Code.
2. When considering a case, complaint, or protest, the legality and validity of the initiation of an administrative offense case and the decisions made on the materials available in the case and additionally submitted are checked. The court is not connected with the arguments and circumstances of the case, complaint, protest and verifies the case in full, while it has the right to establish new facts and examine new evidence.
3. The court has the right to postpone consideration of the case, complaint, protest in connection with the non-appearance of the summoned persons, the request for additional materials on the case, the appointment of an expert examination and in other cases when it is necessary for a full, comprehensive and objective consideration of the case, complaint, protest.
4. The court, having established the fact of disrespect for the court on the part of a person present in the process directly during the trial, has the right, by announcing the fact, without complying with the requirements of subparagraphs 2), 4), 8) and 12) of the first part of this Article, to order the imposition of an administrative penalty on the guilty person provided for in Article 653. of this Code.
5. The case of the fact of contempt of court by a person present in the process, established during the trial, is considered by the judge (court) directly at the same court session with the establishment and recording of this fact in the minutes of the court session.
6. If an official who initiated an administrative offense case or a representative of a government agency whose representatives have the right to initiate cases of administrative offenses participates in the consideration of a case, complaint, or protest, they are the first to provide explanations on the merits of the offense and evidence of a person's guilt in its commission.
7. If necessary, other procedural actions provided for by this Code are carried out.
The commented article regulates in detail the procedure for considering a case, complaint, protest and sets out the conditions that must be observed. Failure to comply with the procedural requirements may adversely affect the completeness and objectivity of the case review and become the basis for the cancellation of the decision taken as a result.
It should be noted that in general, the procedure for considering a case of an administrative offense, complaint, protest against a decision on an administrative offense, an order to pay a fine, a decision of a higher authority (official) on a complaint, protest is similar to that established in Articles 818 and 826-3 of the Administrative Code.
Thus, in accordance with the rules of part 1 of this article, a judge, having begun to consider a case or complaint, performs procedural actions in the order determined by the norm.:
1) announces who is considering the case, which case, complaint, protest are subject to consideration, who is being held accountable and on the basis of which article of the Code, determines the language of the proceedings;
2) certifies the appearance of the person being held administratively liable or his representative, as well as other persons participating in the consideration of the case, complaint, protest;
3) establishes the identity of the participants in the proceedings and verifies the powers of the legal representatives of the persons, the defender;
4) finds out the reasons for the non-appearance of the participants in the proceedings and decides on the consideration of the case, complaint, protest in the absence of the specified persons or on the postponement of the consideration of the case, complaint, protest;
5) if necessary, issues a ruling on the summoning of a person whose participation is mandatory during the consideration of a case, complaint, protest, appoints an interpreter;
6) explains to the persons participating in the consideration of the case their rights and obligations provided for by this Code, including the right to receive free legal aid at the expense of the state budget;
7) resolves the filed challenges and petitions;
8) announces the protocol on the administrative offense, the complaint, the protest, and, if necessary, other case materials.;
9) hears the explanations of the person in respect of whom the proceedings are being conducted, the testimony of other persons participating in the proceedings, the explanations of the specialist and the expert's opinion, examines other evidence, and in the case of the prosecutor's participation in the consideration of the case, complaint, protest hears his conclusion.;
10) issues a ruling on the postponement of consideration of a case, complaint, protest in connection with: an application for self-recusal or recusal of a judge, if his recusal interferes with the consideration of the case, complaint, protest on its merits; with the recusal of a defender, an authorized representative, an expert or an interpreter, if the said recusal interferes with the consideration of the case, complaint, protest on the merits; with the need for the appearance of persons participating in the consideration of the case, complaint, protest, or the request for additional materials on the case, complaint, protest, as well as in cases provided for in Part 2, Article 51 of the Code. If necessary, the court issues a ruling on the appointment of an expert examination.;
11) issues a ruling on the extension or suspension of the time limits for consideration of a case, complaint, protest;
12) issues a ruling on the transfer of the case for consideration on the merits in cases provided for in Articles 829-9 of the Administrative Code.
In order to ensure a comprehensive and objective trial of a case, complaint, or protest, the court is obliged to carefully examine the circumstances relating to both the administrative offense and the identity of the person who committed it, and, in particular, to find out whether an administrative penalty was imposed on the basis of the law and an authorized body (official); whether the established procedure for bringing a person to administrative responsibility has been observed; is there any corpus delicti in the actions of the person for which administrative responsibility is established by law; whether there is an event imputed to the person, whether he is guilty of committing this offense and what is the degree of his guilt; whether the penalty imposed corresponds to the severity of the offense and what is the degree of his guilt; whether the identity of the perpetrator, his family and property status are taken into account; whether the statute of limitations has expired; whether property damage has been caused and to what extent; other circumstances relevant to the case.
In accordance with Parts 2 and 7, while verifying the legality and validity of the decision, the court verifies the legality of actions at all stages of the administrative proceedings, all decisions made on the materials available in the case and additionally submitted. The testimony of other persons participating in the consideration of the case, complaints, protests, explanations of a specialist and an expert's opinion are heard, other evidence is examined, and other procedural actions are carried out in accordance with the Administrative Code.
The court is not connected with the arguments and circumstances of the case, complaint, protest and verifies the case in full. The legislator gave the court broad powers to establish an objective picture of the offense committed, without imposing the obligation to prove: the guilt or innocence of the offender, the circumstances of the offense, the search for additional evidence, determining the amount of damage, and the like. The court has the right to examine new evidence and establish new circumstances, however, these powers are granted to the court not to fill in gaps and correct errors of the authorized body, but for the purpose of procedural independence and to facilitate the task of establishing the objective side of the offense. At the same time, the court cannot arbitrarily change the legal qualification of the offender's actions, indicated by the authorized body in the protocol on an administrative offense. The court has the right to agree with such a legal qualification or disagree. The latter has different consequences depending on which qualification the court considers correct (Part 4 of Articles 829-14 of the Administrative Code).
It should also be noted that when considering a case, complaint, or protest, the legality and validity of not only the decisions made, but also the initiation of an administrative offense case are checked. Therefore, these issues are not subject to discussion when appealing the protocol or the actions of the authorized body in accordance with Chapter 44 of the Administrative Code.
At the same time, in accordance with part 3, the court has the right to postpone consideration of the case, complaint, protest in connection with the non-appearance of the summoned persons, requesting additional materials on the case, appointing an expert examination and in other cases when it is necessary for a full, comprehensive and objective consideration of the case, complaint, protest.
Parts 4 and 5. As previously noted, the legislator provides for a special, simplified form for bringing to justice those responsible for contempt of court. In such cases, the court, immediately during the trial, has the right, having announced the fact, without complying with the requirements of subitems 2), 4), 8) and 12) of Part 1 of the commented article, to order the imposition of an administrative penalty on the guilty person provided for in art. 653 of the Code in the same court session with the establishment and recording of this fact. in the minutes of the court session.
Separately, in Part 6, the legislator mentions the obligation of the official who initiated the case of an administrative offense, or a representative of a state body whose representatives have the right to initiate cases of administrative offenses, to consider a complaint, protest against a ruling on an administrative offense, which is beneficial for the purposes of effectively ensuring the competitiveness and equality of the parties. an order on the need to pay a fine, – The first is to provide explanations on the merits of the offense and evidence of the person's guilt in its commission. This contributes to a more complete realization by the party defending its rights and follows from the implementation of the principle of imposing the burden of proof on state bodies (officials).
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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