Comment to article 882. The procedure for executing requests for information and documents and instructions for conducting certain procedural actions  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The court, body (official) shall execute the instructions of the relevant institutions and officials of foreign states on the conduct of procedural actions according to the general rules of this Code, transmitted to them in accordance with the established procedure.

     2. When executing an order, the procedural rules of a foreign state may be applied, if this is provided for by an international agreement of the Republic of Kazakhstan with this state.

     3. In cases stipulated by an international agreement, a representative of a competent institution of another State may be present during the execution of an assignment.

     4. If the request (order) cannot be executed, the received documents are returned to the foreign institution from which the order originated, indicating the reasons that prevented its execution. The order is returned if its execution may damage sovereignty or security or contradicts the legislation of the Republic of Kazakhstan.

     Part 1. Court, body (official) The Republic of Kazakhstan, on the basis of international treaties, as well as the principle of reciprocity, executes requests for information and documents submitted to them in accordance with the established procedure, orders to conduct certain procedural actions of relevant institutions and officials of foreign states. The commented article of the Administrative Code regulates the procedure for their execution.

     The procedural actions, the production of which is requested in the transmitted order, are carried out by the courts and bodies of the Republic of Kazakhstan according to the general rules of the Administrative Code. If the legislation of the Republic of Kazakhstan on administrative offenses requires the issuance of special resolutions by authorized officials for the conduct of certain procedural actions, then their issuance is carried out at the place of execution of the order.  

     The court, authorities (officials) are required to strictly comply with the requirements of the Code. Violation of the rules of the Administrative Code by a court, bodies (officials) authorized to consider cases of administrative offenses in the execution of a request or instruction is unacceptable and entails liability established by law, invalidation of adopted acts and their cancellation.

     The procedure for executing requests for legal assistance may be detailed in departmental regulations. Thus, in accordance with the Instructions on the provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts of foreign States: "Execution of orders from courts of foreign states is carried out in accordance with the procedure established by the legislation of the Republic of Kazakhstan, unless otherwise provided by an international treaty.

     The documents to be served (a copy of the statement of claim, court notices, judicial acts of courts of foreign states, etc.) are presented in Kazakh and/or Russian or with a certified translation attached. In cases where the documents are written in a foreign language or are not accompanied by a translation, they are handed over to the recipient if he agrees to accept them voluntarily. The delivery of documents is certified by a confirmation containing the date of delivery, signed by the person to whom the document was handed, and sealed with the official seal of the court and the signature of the judge in accordance with Appendix 1 to the Instructions. If the recipient refuses to accept the documents, the executor of the order draws up an act of refusal indicating the reasons for refusal to receive, which is signed by the latter and certified with the seal of the court. If the order cannot be executed by the court to which it was sent due to lack of jurisdiction, the court will forward the territorial order to another court within 5 working days.

     In case of forwarding territorial orders to another court, 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) (hereinafter referred to as the Department) must be informed within 5 working days.

     If the person against whom the procedural actions should be carried out does not reside (is not located) at the address indicated in the documents, the court executing the order takes measures to establish his place of residence (location) by sending an appropriate request to the competent authorities and organizations.

     When executing instructions by the court, the necessary materials (interrogation protocol, confirmation of the delivery of documents, certificate of expenses, etc.) are affixed with the judge's signature, the official seal of the court and sent to the Department through the court administrator within up to 15 working days.

     Within 30 calendar days, the Department verifies the correctness of paperwork for the execution of orders in accordance with the requirements of procedural legislation, international treaties and Instructions and sends the documents to the competent institution of the requesting State."

     The international agreement itself may also define the procedure for executing requests and orders. Thus, according to Article 9 of the Agreement on Legal Assistance and Cooperation of the Customs authorities of the Member States of the Customs Union in Criminal and administrative cases, a request for information and documents, an order to conduct certain procedural actions are executed within one month from the date of their receipt, marked "urgent" - no more than 2 weeks.. If it is necessary to shorten these deadlines, a reservation is made in the text of the request, instruction, indicating the reasons for the reduction in time and the desired deadline.

     If it is necessary to apply to another state body of the requested Party, the specified time limits are extended in accordance with the internal procedure of the customs authority of this Party. The requested customs authority carries out all the actions specified in the request or instruction and answers all the questions raised. The requested customs authority has the right, on its own initiative, to carry out actions not provided for by the request or instruction related to their execution. The requested customs authority shall send the response to the request, the order, as well as the relevant materials and documents (certified copies) directly to the requesting customs authority addressed to the head of the customs authority who signed the request, the order with mandatory reference to the details of the received request. If it is impossible to execute a request or order in part or in full within the time limits specified in paragraph 1 of Article 9, the requested customs authority must inform the requesting customs authority about the expected time frame for the execution of the request or order.

     It is worth noting that in addition to the actions provided for by the Administrative Code, other actions provided for by other laws and international treaties of the Republic of Kazakhstan may also be carried out in order to provide legal assistance.

     Part 2. Court, body (official) The Republic of Kazakhstan may apply the procedural rules of a foreign state when executing an order, if this is provided for by an international agreement of the Republic of Kazakhstan with that State.

     According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of application by courts of the norms of the General Part of the Code of the Republic of Kazakhstan on Administrative Offenses", when considering a case, the court does not have the right to apply the norms of the legislation of the Republic of Kazakhstan on administrative offenses, if other rules are established by an international agreement, the decision on consent to be binding on the Republic of Kazakhstan Kazakhstan was accepted through ratification or accession. In these cases, the rules of the international agreement apply.

     At the same time, when executing a request or instruction, courts and authorities do not have the right to apply the procedural rules of a foreign state that infringe on the established The Constitution defines the rights and freedoms of man and citizen. So, in the Resolution The Constitutional Council of the Republic of Kazakhstan dated May 18, 2006 No. 2 stated that if an international treaty of the Republic of Kazakhstan or its individual provisions are recognized in accordance with the established procedure as contradicting the Constitution of the Republic, which, according to paragraph 2 of Article 4 of the Basic Law, has the highest legal force on the territory of the Republic, such an agreement, in whole or in part, is recognized as inconsistent with the Constitution, subject to execution.  

     In The Resolution The Constitutional Council of the Republic of Kazakhstan dated May 7, 2001 No. 6/2 confirms the principle of the supremacy of the Constitution on the territory of the Republic, indicates the mandatory compliance of international treaties with it. The principle of the supremacy of the Constitution is specified by the Constitutional Council in a number of other resolutions, which define legal positions on certain aspects of the relationship between international law and Kazakh legislation, the place of international treaties in the system of current law, the procedure for their conclusion and application.

     Part 3. When executing instructions, in cases stipulated by an international agreement, procedural actions may be performed in the presence or with the participation of representatives of a competent institution of another State. For these purposes, the authorities of the requesting party may send their employees for a certain period of time. At the request of the requesting authority, the requested authority shall inform in advance of the planned time and place of execution of the order to carry out certain procedural actions in order for the requesting authority to consider the possibility of its representatives being present during the execution of the order.

Part 4. Documents on an unfulfilled request (order) are returned to the foreign institution from which they were received, indicating the reasons that prevented its execution. Such reasons include the inability to establish the place of residence or location of the relevant person for conducting an interview or other procedural actions with him, or his death, the absence of the necessary information (data) in the request for its lawful and correct execution, etc. For example, the Instruction on the provision of legal assistance by courts of the Republic of Kazakhstan and seeking legal assistance from courts of foreign states establishes that if the person against whom the procedural actions should be carried out does not reside (is not located) at the address indicated in the documents, the court executing the order takes measures to establish his place of residence (location) by sending an appropriate request to the competent authorities and organizations. In the absence of information about the new place of residence (location) of the specified person, or if the recipient is not located at the specified address, the court draws up in any form an act on the impossibility of executing the order, which is affixed with the signature of the judge and the official seal of the court, and fills out a confirmation indicating the reason for non-fulfillment of the order.  

     Orders from courts or other institutions of foreign States that violate the rules of communication are not subject to execution. They are returned to the initiator through a central or territorial body authorized to conduct relations in accordance with an international treaty or the legislation of the Republic of Kazakhstan.

     The order is also returned unfulfilled if its execution may damage sovereignty or security or contradicts the legislation of the Republic of Kazakhstan.  

     In case of issues requiring clarification of a technical and legal nature in the application and interpretation of the norms of the international treaty of the Republic of Kazakhstan, acts and decisions of international organizations of which the Republic of Kazakhstan is a member should be used, as well as contact the Ministry of Foreign Affairs of the Republic of Kazakhstan, the Ministry of Justice of the Republic of Kazakhstan, the Prosecutor General's Office of the Republic of Kazakhstan (for example, to clarify issues related to the duration of the international treaty, the list of States participating in the treaty, the presence or absence of a reservation in an international treaty by the participating countries, judicial practice of applying an international treaty in foreign countries, and others).

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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