Comment to article 829-3. The procedure for appealing and protesting a decision on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on a complaint, protest  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. A complaint or protest against a decision in an administrative offense case, an order on the need to pay a fine, a decision of a higher authority (official) on the complaint or protest shall be sent to the authority (official) who issued the decision on the case, issued the order, which is obliged within three days from the date of upon receipt of a complaint or protest, send them with all the case materials to the appropriate court.

     2. In cases of appeal or protest against the decision on the fact of contempt of court in accordance with the second part of Article 830 of this Code, the court shall attach to the decision an extract from the minutes of the court session regarding the establishment of the fact.

     3. The complaint is filed, the protest is submitted directly to the court authorized to consider them at the place of residence or location of the person.

     4. A complaint or protest against a judge's decision to impose a penalty in the form of administrative arrest shall be sent to a higher court on the day of receipt of the complaint or protest.

     5. If the consideration of a complaint or protest does not fall within the competence of the court to which the decision on the case of an administrative offense, the order on the need to pay a fine, or the decision of a higher authority (official) on the complaint or protest is appealed or protested, the complaint or protest is sent under its jurisdiction.

     6. The complaint filed with the court must contain information and comply with the requirements provided for in Article 833 of this Code.

     Part 1 of the commented article establishes the general procedure for filing a complaint or protest against a decision on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on a complaint or protest to the authority (official) who issued the decision on the case, issued the order, which is obliged to within three days from the date of receipt of the complaint or protest, send them with all the case materials to the appropriate court.

     The establishment of a general procedure for filing a complaint through the body (official) who issued the decision on the case and issued the order is aimed at ensuring the rights of participants in the proceedings on an administrative offense. Such persons cannot be unaware of the procedural features of legal proceedings, which should not be an obstacle to the exercise of their constitutional rights. The fact of filing a complaint obliges these persons to send it with all the case materials to the appropriate court within three days from the date of receipt of the complaint.

     It should be noted that a complaint or protest against a ruling on an administrative offense, an order to pay a fine, or a decision of a higher authority (official) on the complaint or protest is not subject to state duty. Therefore, the court has no right to oblige the person who appealed (protested) a decision on an administrative offense case, an order on the need to pay a fine, a decision of a higher authority (official) on a complaint or protest, to pay a state fee or to leave the complaint (protest) without movement on the grounds of non-payment of the state fee.

     The requirements of part 2 of the commented article are conditioned by the need for a qualitative formation of the subject of the dispute – an extract from the minutes of the court session regarding the establishment of the fact of contempt of court in accordance with part 2 of art. 830 of the Administrative Code.  

     It is also advisable to note here that the 20th point of the National Plan - 100 concrete steps to implement five institutional reforms proposed by the President of the Republic of Kazakhstan is the introduction of audio and video recording of all court proceedings.  

     The use of audio and video recording by the court in the courtroom is regulated by Article 803 of the Administrative Code and it is widespread in all types of legal proceedings: civil and criminal, and is also regulated by articles 257 of the Code of Civil Procedure, 328 of the CPC.

     Part 3 of the said norm regulates the possibility of directly filing a complaint with a higher court competent for its consideration. This indirectly allows the higher courts to demand the relevant materials of the administrative proceedings from the relevant court for consideration of the complaint on the merits.  

     Part 4 of the commented article establishes a limited time limit for sending a complaint or protest against a judge's decision to impose a penalty in the form of administrative arrest to a higher court – on the day of receipt of the complaint or protest.  

     It should be remembered here that in accordance with Article 808 of the Administrative Code, the protocol, and in the case provided for in Part 9 of Article 803 of the Code, a copy of the protocol (prosecutor's decision) on an administrative offense, the responsibility for which may entail the application of administrative arrest, administrative expulsion of a foreigner or stateless person from the Republic of Kazakhstan, is sent to the judge immediately after its compilation, that is, cases in which arrest can be applied as a penalty, are sent to court for consideration as soon as possible.  

     This is due to the desire to limit as much as possible the non-judicial period of a person's stay in isolation (arrest), which corresponds to international standards and practices. It is the prerogative of the court and the legislator to quickly verify the legality and validity of the use of arrest and properly ensure the constitutional right of a citizen to freedom and personal inviolability.  

     At the same time, it seems doubtful that the article in question refuses to specify such a type of punishment as the administrative expulsion of a foreigner or stateless person from the Republic of Kazakhstan, which is provided for in Article 803 of the Administrative Code, but is not included in Part 4 of Article 829-3 of the Administrative Code. The correctness of our position regarding this fact is also confirmed by the fact that further, in Part 3 of art. 829-5 of the Administrative Code, it is indicated that "the case of an administrative offense, the commission of which entails administrative arrest, administrative expulsion from the Republic of Kazakhstan, is considered on the day of receipt of the protocol on the administrative offense and other case materials, and in respect of a person subjected to administrative detention – no later than twenty-four hours from the moment of his detention".

     The issue of the correlation of this norm with Part 3 of Article 744 of the Administrative Code remains problematic in the field of law enforcement. The courts still remain in a difficult situation when they receive case materials for which arrest is provided as an administrative penalty in the article of the Special Part of the Administrative Code, but at the same time there is no person brought to administrative responsibility.  

     On the one hand, the authorized body, in accordance with Article 808 of the Administrative Code, in the absence of the offender, is obliged to immediately send to the court a copy of the protocol on cases of administrative offenses, responsibility for which may entail the application of administrative arrest or administrative expulsion. On the other hand, according to Part 3 of Article 744 of the Administrative Code, the court does not have the right to proceed with the consideration of such a case in the absence of the offender. In such cases, the courts issue rulings on the drive, but if they are not enforced, the problem is not resolved. Due to the inability to return the case to the authorized body without a person, such cases are forced to accumulate in the courts, unable to find their resolution. Given that the courts are not the subject of operational investigative activities, it seems that this problem will not be resolved until the courts have the opportunity to return such cases to the authorized body, which, if it has the appropriate competence, has the right to search for such persons and record such cases. Another option may be to terminate administrative proceedings after the expiration of the limitation period for the imposition of an administrative penalty. Currently, this period is suspended from the moment the case is sent to court, and therefore cases without persons can theoretically wait years for their resolution in the courts.

     This issue needs to be resolved as soon as possible.  

     Part 5 of this article regulates the direction of a complaint or protest under jurisdiction, if their consideration does not fall within the competence of the court to which the decision on the case of an administrative offense, the order on the need to pay a fine, the decision of a higher authority (official) on the complaint or protest is appealed or protested. That is, the complaint or protest is sent to the appropriate court, which is authorized to consider it by the court itself. This practice is the most appropriate and best suited to maximize the full human rights potential of the Administrative Code.  

     It is only necessary to pay attention to the fact that the content of this article is addressed to the court, and in relation to the court it is appropriate to use the definition of "jurisdiction" and not "jurisdiction", as is the case in the wording of the article.  

     Part 6 of the article is a reference to Article 833 of the Administrative Code regarding the requirements for the content of a complaint filed with the court. It should be noted that the legislator did not form similar requirements for the protest.

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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