Commentary to article 18. Independence of the court (judge) and the body (official) authorized to consider cases of administrative offenses  The Code of the Republic of Kazakhstan on Administrative Offences  

     Courts (judges) and bodies (officials) authorized to consider cases of administrative offenses resolve them in conditions that exclude outside influence on them. Any interference in the activities of the court (judge) and the body (official) authorized to consider cases of administrative offenses is unacceptable and entails liability established by law.

     The disposition of the article provides for the independence not only of the court (judge) when considering cases of administrative offenses, but also of officials of bodies authorized to consider cases of administrative offenses.  

     It should be noted that previously, the Code of Administrative Offences in force until January 1, 2015 provided only for the independence of judges.

     Since, in addition to the court (judges), officials of other bodies have the jurisdictional authority to make decisions on cases of administrative offenses, the analyzed principle is relevant for them as well.

     The independence of the court (judges) authorized to consider cases of administrative offenses is based on the provisions of Article 77 of the Constitution of the Republic of Kazakhstan. A judge is independent in the administration of justice and is subject only to the Constitution and the law. Any interference in the activities of the court in the administration of justice is unacceptable and entails liability under the law. Judges are not accountable for specific cases.

     According to paragraph 3 of Article 1 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", judges in the administration of justice are independent and obey only the Constitution and the law. It is not allowed to adopt laws or other regulatory legal acts that detract from the status and independence of judges. Any interference in the activities of the court in the administration of justice is unacceptable and entails liability under the law. Judges are not accountable for specific cases. Appeals in court cases filed contrary to the established procedure of legal proceedings, as well as on issues outside the jurisdiction of the court, are left without consideration by the court or sent to the relevant authorities.  

     Article 25 of the same Constitutional Law provides for the independence of judges. The independence of judges is protected by the Constitution and the law. In the administration of justice, judges are independent and subordinate only to The Constitution of the Republic of Kazakhstan and the law. No one has the right to interfere in the administration of justice or to exert any influence on the judge and jurors. Such actions are prosecuted by law. The judge is not obliged to give any explanations on the merits of the considered or pending court cases.  

     On the basis of Article 26 of the mentioned Constitutional Law, the independence of judges is ensured:  

     1) the procedure prescribed by law for the administration of justice;

     2) the establishment by law of responsibility for interfering in the activities of a judge in the administration of justice, as well as for showing disrespect to the court and judges;

     3) the inviolability of the judge;

     4) the procedure established by the Constitution, the Constitutional Law of the Republic of Kazakhstan "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" and the Law of the Republic of Kazakhstan "On the Supreme Judicial Council of the Republic of Kazakhstan" for the election, appointment, termination and suspension of the powers of a judge, and the right of a judge to resign;  

     5) providing judges with financial support and social security at the expense of the State, appropriate to their status, as well as prohibiting its deterioration.

     Judges, their family members and property are protected by the State. The internal affairs bodies are obliged to take timely and comprehensive measures to ensure the safety of the judge and his family members, the safety of their property, if the judge receives an appropriate appeal. The damage caused to the judge and his property in connection with his professional activity is compensated at the expense of the republican budget.

     As we have already noted, the principle under study applies, in addition to the court (judges), to bodies (officials) authorized to consider cases of administrative offenses. This principle applies only to those bodies listed in Chapter 36 of the Administrative Code, that is, the principle of independence does not apply to officials of authorized bodies who are authorized to initiate proceedings on administrative offenses and apply security measures.

     Unfortunately, the principle of independence is constitutional only for judges, and for other bodies it is provided only at the level of codified administrative legislation.

     The violation of the principle of independence consists in interference in the activities of judges and officials who have the right to consider cases of administrative offenses. In our case, interference should be understood as the commission of illegal actions that prevent the correct application of the decision in the case of administrative offenses. Interference can be expressed in various forms of influence: giving direct instructions to a higher official, requesting, blackmailing, persuading, promising to provide any services, patronizing, etc. The form of intervention can be written or oral (personal instruction, through another person, by phone, etc.).

     To recognize unlawful interference, it is necessary to establish that the person influencing the proper resolution of the administrative offense case did not have the right to do so.

     For example, on the basis of the Instructions on the Procedure for Administrative Offenses in the internal Affairs bodies of the Republic of Kazakhstan, approved by Order No. 713 of the Ministry of Internal Affairs of the Republic of Kazakhstan dated December 13, 2013, a procedure is provided for verifying the correctness of a decision on administrative offenses. Paragraph 8 of this instruction states that administrative cases are transferred to the head of the Department of Internal Affairs structural unit within eight hours after they are drawn up, and in combatant units to the platoon commander, who verifies the correctness and validity of the protocol, the use of shortened proceedings, the legality of the decision, and the adoption of measures to ensure administrative proceedings.  

     That is, in this case, the actions of the platoon commander cannot be regarded as interference in the activities of the official who reviewed the case of an administrative offense, since he has the right provided for by law to eliminate the shortcomings of administrative proceedings.

     The codified legislation does not provide for liability for interference in the activities of the court (judges) or officials authorized to consider cases of administrative offenses. But if the actions of the offender contain signs of a criminally punishable act, then the responsibility for interfering in the process of administering justice or conducting a pre-trial investigation will come according to art. 407 of the Criminal Code. Part 2 of this article provides for liability for interference in any form with the activities of the prosecutor or the person conducting the pre-trial investigation in order to prevent a comprehensive, complete and objective pre-trial investigation.

     Depending on the nature of the interference in the process of resolving cases of administrative offenses, legal liability may arise in a disciplinary manner. For example, Article 50 of the Law of the Republic of Kazakhstan dated November 23, 2015 "On the Civil Service of the Republic of Kazakhstan" provides for disciplinary offenses that discredit the civil service.:

     1) unlawful interference in the activities of other state bodies and organizations;

     2) the use of their official powers in resolving issues related to the satisfaction of their material interests or close relatives and relatives, etc.  

     Illegal interference in the activities of state bodies may also occur on the basis of the provisions of the Code of Ethics, approved by Decree of the President of the Republic of Kazakhstan dated December 29, 2015 No. 153. It provides standards of conduct for civil servants on and off duty.

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.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     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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