Comment to article 829-6. Preparation for consideration of 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. When preparing to consider a case, complaint, or protest, the court clarifies the following issues:

     1) whether the examination of the case, complaint, protest falls within his competence;

     2) are there any circumstances that exclude the possibility of consideration of the case, complaint, protest by the court;

     3) whether the protocol on an administrative offense and other protocols provided for by this Code have been drawn up correctly, as well as other case materials.;

     4) are there any circumstances that exclude the proceedings in the case, as well as circumstances that make it possible not to bring the person to administrative responsibility;

     5) are there any petitions, including in cases involving a minor, for consideration of the case in court at the minor's place of residence, and challenges;

     6) resolves petitions, requests additional materials, summons persons whose participation is deemed necessary for the consideration of the case, complaint, protest; if necessary, appoints an expert examination;

     7) whether the persons specified in Articles 744, 745, 746, 747 and 748 of this Code have been notified of the place and time of consideration of the case, complaint, protest.

     2. The requirements of subitems 1), 3) and 6) of part one of this Article shall not apply to cases of contempt of court considered in accordance with part three of Article 684 of this Code.

     Part 1. The implementation of the procedural actions provided for in this article is intended to provide conditions for the consideration of the case on its merits. Therefore, when preparing to consider a case, complaint, or protest, the judge must find out:

     1) whether the examination of the case, complaint, protest falls within his competence;

     2) are there any circumstances that exclude the possibility of consideration of the case, complaint, protest by the court;

     3) whether the protocol on an administrative offense and other protocols provided for by this Code have been drawn up correctly, as well as other case materials.;

     4) are there any circumstances that exclude the proceedings in the case, as well as circumstances that make it possible not to bring the person to administrative responsibility;

     5) are there any petitions, including in cases involving a minor, for consideration of the case in court at the minor's place of residence, and challenges;

     6) resolves petitions, requests additional materials, summons persons whose participation is deemed necessary for the consideration of the case, complaint, protest; if necessary, appoints an expert examination;

     7) whether the persons specified in articles 744, 745, 746, 747 and 748 of the Code have been notified of the place and time of consideration of the case, complaint, protest.

     Commenting on this article, it is necessary to note the content of some sub-paragraphs.

     The first subparagraph deals with the competence to consider the case by one court rather than another. That is, it is a jurisdiction. The rules for determining jurisdiction are listed in the comments to the articles above.

     The second subparagraph contains a reference to the circumstances precluding the possibility of considering the case, complaint, or protest. They are listed in Articles 829-7 of the Administrative Code. In addition, these circumstances are actually also contained in the norms of Chapters 35, 36, 43, 43-1 and 44-1 of the Administrative Code, etc.

     When interpreting the third subparagraph, it is necessary to be guided by the provisions of Articles 39, 41 and 43 of the Administrative Code. The requirements for the main documents provided for in the specified subparagraph are contained in the specified chapters. The expediency of the existence of this subparagraph in the current wording is questionable, since, on the one hand, the legislation on administrative offenses has long prevented the court from returning the protocol and other materials of the administrative offense case to the authorized body for proper registration. On the other hand, the shortcomings in the design of the protocol and other case materials are not provided as an independent basis for the termination of proceedings on an administrative offense.

     The fourth subparagraph contains a reference to the circumstances precluding the possibility of considering the case, complaint, or protest. The circumstances precluding the possibility of considering this case are specified in art. 741 of the Administrative Code.

     The content of sub-paragraphs 5) and 6) correlates with Articles 740, 763, 829-8 and Chapter 44 of the Administrative Code. In addition, subparagraph 6) should be considered in conjunction with articles 772-775, 780, etc.

     Subparagraph 7) of the commented article should be considered in the context of the content of Article 743 of the Administrative Code, which establishes the fundamental requirements for recognizing the notification as valid and appropriate.  

     Part 2. From the comments to the articles above, it follows that the legislator has a special attitude towards such a category of cases as contempt of court. In this regard, Part 2 notes an exception for those issues that, for obvious reasons, cannot serve as an obstacle to the preparation of a complaint or protest case for consideration. Accordingly, sub-paragraphs 1), 3) and 6) of Part 1 of the commented article do not apply to cases of contempt of court considered in accordance with Part 3st. 684 of the Code.

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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