Comment to article 829-11. Circumstances to be clarified when 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 the complaint, protest  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. When considering a case, complaint, or protest, the court is obliged to find out whether an administrative offense has been committed, whether the person is guilty of committing it, whether he is subject to administrative responsibility, whether there are circumstances mitigating and aggravating liability, whether property damage has been caused, the circumstances provided for in Articles 741 and 742 of this Code, whether the protocol on administrative offense and other protocols provided for by this Code, whether other case materials are properly filed, whether there are circumstances, circumstances that exclude the proceedings in the case, circumstances that make it possible not to bring the person to administrative responsibility, as well as to clarify other circumstances that are important for the proper resolution of the case.

     2. The court, taking into account the establishment of the circumstances specified in part one of this Article, has the right to reduce the amount of an administrative fine imposed on a person against whom an administrative offense case has been initiated and calculated in accordance with paragraph one of part one of Article 44 of this Code, but not more than thirty percent of the total fine.

     Part 1 provides for a fundamental requirement for the establishment court to find out whether an offense has been committed (art. 25 of the Administrative Code), whether the person is guilty of its commission (Articles 26 and 27 of the Administrative Code), what is the degree of this guilt, whether he is subject to administrative responsibility (Chapter 4 of the Administrative Code), whether the norms of substantive and procedural legislation.  

     Most violations, as a rule, are reduced to an incorrect qualification of an act (action or omission) or errors in the appointment of administrative penalties, as well as ignoring or failing to clarify the existence of circumstances that exclude proceedings in the case, circumstances that make it possible not to bring a person to administrative responsibility.

     Incorrect application of substantive norms is often the result of errors related to the application of the procedural norms of the Administrative Code (incomplete investigation of the circumstances of the case, one-sided assessment of evidence).

     A procedural violation should lead to the cancellation of a decision not only when the case materials indicate that the conclusion of the judge, official, or collegial body in the case is erroneous, but also in cases where the correctness of its resolution is questioned, as well as the lack of evidence or the inability to prove the guilt of a person in committing an imputed offense in accordance with Part 2 of art. 741 Administrative Code.  

     Among other things, the existence of circumstances mitigating and aggravating liability provided for in Articles 56 and 57 of the Administrative Code, whether property damage has been caused (Article 59 of the Administrative Code), the circumstances provided for in Article 742 of the Administrative Code, whether the procedural documents in the case have been drawn up correctly and decisions and other case materials have been drawn up.

     Part 2. As a result, the court, taking into account the circumstances specified in Part 1 of the commented article, has the right to reduce the amount of the administrative fine imposed on the person against whom an administrative offense case has been initiated, and calculated in accordance with paragraph 1 of Part 1 of Article 44 of the Administrative Code, but not more than 30% of the total fine. That is, the legislator has provided for discretion for the court within 30% of the fine amount (if the sanction of the article provides for a fine, and the court applies it).

     The second paragraph of paragraph 14 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of the application by courts of the norms of the General Part of the Code of Administrative Offences of the Republic of Kazakhstan" clarifies that the application of such a reduction in the amount of fines for other types of administrative penalties is unacceptable.

     This kind of "incentive" is provided by law for all cases, with the exception of those considered in a shortened procedure (Chapter 42 of the Administrative Code).  

     The commented norm should be considered in conjunction with significant violations of the procedural rules established in art. 843 of the Administrative Code. The legislator attributed to them the violation of the principles and other general provisions of the Code during the proceedings and its consideration, which, by depriving or restricting the legally guaranteed rights of persons involved in the case, non-compliance with the procedure for proceedings on an administrative offense, or otherwise prevented a comprehensive, complete and objective investigation of the circumstances of the case, influenced or could have influenced the decision and a reasoned resolution.

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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