Comment to Article 881. Sending requests for information and documents and instructions on carrying out certain procedural actions of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Requests for the provision of information and documents, orders for the conduct of certain procedural actions may be sent between courts, bodies (officials) in cases provided for by international treaties ratified by the Republic of Kazakhstan.
2. In cases where it is impossible to determine which court or authority to send a request for information and documents, or an order to conduct certain procedural actions, they are sent to the central authority of the requested Party.
3. A request for information and documents, as well as an order to conduct certain procedural actions, shall be made in writing on the letterhead of the authority and must contain:
1) the name of the requested authority of the relevant Party;
2) the name of the requesting authority of the relevant Party;
3) a detailed description of the offense and other related facts, information on the value of the goods, the amount of damage, and the legal qualification of the act in accordance with the legislation of the requesting Party, with the text of the applicable law attached.;
4) the names, patronymics (if any) and surnames of the persons in respect of whom proceedings are being conducted on an administrative offense, witnesses, their place of residence or place of stay, nationality, occupation, place and date of birth, for legal entities – their full name and location (if available). information);
5) the order for the delivery of the document must also indicate the exact address of the recipient and the name of the document being served.;
6) a list of information and actions to be submitted or executed (in order to conduct a survey, it is necessary to indicate which circumstances should be clarified and clarified, as well as the sequence and wording of the questions to be put to the interviewee).
4. A request for the provision of information and documents, or an order to conduct certain procedural actions may also contain:
1) indication of the deadline for the required measures;
2) a request to carry out the activities specified in the request in a certain order;
3) a request for an opportunity for representatives of the authorities of the requesting Party to be present at the performance of the activities specified in the request, as well as, if this does not contradict the legislation of the Parties, to participate in their implementation.;
4) other petitions related to the execution of a request or assignment.
5. A request for the provision of information and documents, an order to conduct certain procedural actions, shall be signed by the head of the requesting body or his deputy. The request or instruction must be accompanied by available copies of documents referenced in the text of the request or instruction, as well as copies of other documents necessary for their proper execution.
6. The authorities of the Parties may send procedural documents by mail directly to the participants in the proceedings on administrative offenses located on the territory of the other Party.
7. It is allowed to send a repeated request for the provision of information and documents, instructions for carrying out certain procedural actions in cases of administrative offenses, if necessary, to obtain additional information, to clarify information received as part of the execution of the previous request or instruction.
Part 1. Legal assistance in cases of administrative offenses is provided by courts, bodies (officials) through the execution of requests for information and documents sent to each other, and instructions for conducting certain procedural actions.
A request is a request that contains a request for information and documents.
An assignment is a document by virtue of which one party undertakes to perform certain legal actions on behalf of the other party.
Legal assistance is provided on the basis of international treaties ratified by the Republic of Kazakhstan. It is worth noting that in accordance with paragraph 2 of the Resolution of the Constitutional Council of the Republic of Kazakhstan "On the official interpretation of subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan" dated May 18, 2006, acts of the Republic of Kazakhstan on ratification of international treaties and acts of the Republic of Kazakhstan on accession to international treaties are equivalent in their legal force and legal consequences. In this regard, international treaties, the binding nature of which for Kazakhstan is established by normative legal acts on accession to international treaties adopted by the Parliament of the Republic, are equivalent to international treaties ratified by the Republic of Kazakhstan.
In accordance with Article 4 of the Constitution of the Republic of Kazakhstan and based on the meaning of Article 24 of the Law of the Republic of Kazakhstan "On International Treaties of the Republic of Kazakhstan", officially published and effective international treaties of the Republic of Kazakhstan are applied.
Officially unpublished international treaties concerning the rights, freedoms and duties of citizens are not applicable.
Ratified international treaties that have direct effect and do not require the issuance of laws for their application are used as norms of substantive (with the exception of areas of criminal law and administrative law relations) or procedural law when resolving cases, in particular, when considering cases of administrative offenses, if international treaties of the Republic of Kazakhstan establish other rules of procedure. than stipulated by the legislation on administrative offenses.
The basis for making a request or assignment is the need to carry out, in the interests of achieving the objectives of the proceedings on an administrative offense, the appropriate procedural action on the territory of the State party to the international treaty. The commented article does not define a specific range of procedural actions that can be performed in the framework of legal assistance. A list of these actions may be provided for in the international treaty itself.
Thus, in accordance with Article 10 of the Agreement on Legal Assistance and Cooperation between the Customs Authorities of the Member States of the Customs Union in Criminal and Administrative Matters (hereinafter referred to as the Agreement on Legal Assistance and Cooperation between Customs Authorities), ratified by the Republic of Kazakhstan, customs authorities, when executing orders to carry out certain procedural and other actions, perform:
- interview of persons in respect of whom an administrative process is underway (administrative proceedings are underway) and witnesses;
- seizure or seizure of goods and documents that are material evidence or objects of an administrative offense;
- the demand for documents necessary for the proceedings on the case;
- inspection;
- obtaining the information necessary for the proceedings on the case or its consideration from government agencies and individuals;
- handing over documents or copies thereof to participants in the administrative process (production);
- expertise and other actions.
Part 2. The court, the body conducting proceedings in the case of an administrative offense, is obliged to send a request for information and documents, and an order to conduct certain procedural actions under its jurisdiction. If it is not possible to determine which court or authority the request or order should be sent to, these documents are sent to the central authority of the requested Party.
The requested Party is the State to whose competent authority the request (instruction) is sent.
A central authority is a body authorized on behalf of a State to consider a request (instruction) from a competent authority of a foreign State and take measures to organize its execution.
For example, in cases where it is impossible to determine which customs authority to send a request for information and documents, or an order to conduct certain procedural actions, they are sent to the central customs authority of the requested Party.
In its departmental documents, the central authority also determines the procedure for executing requests and orders by courts, bodies (officials), as well as their subsequent referral to foreign countries.
Thus, in accordance with the Decree of the President of the Republic of Kazakhstan dated November 3, 2010 No. 1093, the central body for providing legal assistance by courts of the Republic of Kazakhstan and requesting legal assistance from courts of foreign states is the Department for Ensuring the Activities of Courts under the Supreme Court of the Republic of Kazakhstan (office of the Supreme Court of the Republic of Kazakhstan) and its territorial divisions (court administrators) in regions, the capital, and cities of national significance. Approved by the Order of the Head of the Department for Ensuring the Activities of Courts under the Supreme Court of the Republic of Kazakhstan (Office of the Supreme Court of the Republic of Kazakhstan) dated May 11, 2016 No. 6001-16-7-6/196 "Instruction on the provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts of foreign States" details the provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts foreign States in the field of international legal cooperation.
Part 3 of the commented article contains a list of mandatory requirements related to the form and content of a request for information and documents, as well as instructions to conduct certain procedural actions. An international agreement may contain other or additional requirements. For example, the Agreement on Legal Assistance and Cooperation between Customs Authorities states that a request or instruction, in addition to those listed in Part 3 of Article 881 of the Administrative Code, must also contain the number of the administrative offense case (if any) for which legal assistance is requested.
If an international agreement establishes other requirements for the execution of a request or assignment, the rules of the international agreement shall apply.
Part 4. When sending a request for information and documents, or an order for certain procedural actions, the court or body may specify the time limit for the required measures, as well as apply for: carrying out the measures specified in the request in a certain order; allowing representatives of the requesting Party's authorities to attend the events specified in the request, and also, if it does not contradict the legislation of the Parties, to participate in their execution; other petitions related to the execution of the request, instructions.
Part 5. Copies of documents referenced in the text of the request or instruction, as well as copies of other documents necessary for their proper execution, must be attached to the request or instruction.
The head of the requesting body or his deputy has the right to sign a request for information and documents, as well as instructions for conducting certain procedural actions.
Requesting authority – the body that makes the request (instruction).
Part 6. Participants in the proceedings on administrative offenses, their rights and obligations are defined in Chapter 38 of the Administrative Code. Ensuring the exercise of their rights and obligations is one of the tasks of the proceedings in cases of administrative offenses. This task is assigned to the court, the body (official) conducting the proceedings.
The timely receipt by the participants in the proceedings of procedural documents, the provision of which is provided for by the legislation on administrative offenses, is one of the measures to ensure this task.
In this regard, the authorities of the Parties are given the right to send procedural documents by mail directly to the participants in the proceedings on administrative offenses located on the territory of the other Party. Procedural documents include acts in which the procedural decision is drawn up, as well as the results of the procedural action.
Part 7. If there is a need to obtain additional information, clarify information received as part of the execution of a previous request or order, the court, the authority of the requesting Party has the right to send a second request for information and documents, and an order to conduct certain procedural actions.
The requesting party is the State whose competent authority makes the request (instruction).
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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