Commentary to article 20. Ensuring the rights to qualified legal assistance The Code of the Republic of Kazakhstan on Administrative Offences
1. Everyone has the right to receive qualified legal assistance in the course of administrative proceedings in accordance with the provisions of this Code.
2. In cases stipulated by law, legal assistance is provided free of charge.
The analyzed principle of administrative responsibility follows from the constitutional rights of citizens of Kazakhstan provided for in paragraph 3 of Article 13 of the Constitution of the Republic of Kazakhstan, which states: "Everyone has the right to receive qualified legal assistance. In cases stipulated by law, legal aid is provided free of charge."
According to part 1 of the commented article, any citizen has the right to receive qualified assistance in accordance with the procedure provided for in the Administrative Code. This procedure is set out in art. 748 of the Administrative Code for persons who are brought to administrative responsibility, and interprets that legal assistance can be provided by defenders.
Lawyers are involved as defenders. Along with lawyers, the spouse, close relatives, or legal representatives of the person being held administratively liable are allowed to act as defenders. Foreign lawyers are allowed to participate in the case as defenders, if this is provided for by an international agreement of the Republic of Kazakhstan with the relevant state on a reciprocal basis, in accordance with the procedure determined by law.
In accordance with Part 3 of Article 748 of the Administrative Code, the defender is allowed to participate in the case from the moment:
1) administrative detention of a person who is being held administratively liable;
2) initiation of an administrative offense case;
3) at any stage of the proceedings in the case of an administrative offense.
The initiation of proceedings on an administrative offense provided for in Chapter 41 of the Administrative Code is the initial stage of proceedings on an administrative offense and absorbs the procedural actions related to administrative detention and further stages of proceedings on an administrative offense.
Based on Part 4 of Article 802 of the Administrative Code, an administrative offense case is considered initiated from the moment:
1) drawing up the first protocol on the application of measures to ensure the proceedings in the case of an administrative offense;
2) drawing up a protocol on an administrative offense;
3) the prosecutor's decision to institute proceedings on an administrative offense;
4) announcements by the judge (court) on the establishment of the fact of disrespect for the court on the part of the person present during the trial;
5) sending instructions on the need to pay a fine for an offense recorded by certified special control and measuring equipment and devices operating in automatic mode;
6) proper delivery of a notification (notification) when committing administrative offenses, cases on which are considered by the state revenue authorities.
In accordance with paragraph 2 of Article 26 of the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal assistance", state-guaranteed legal assistance in the form of legal advice, as well as protection and representation of interests of individuals in courts, criminal prosecution authorities, other state bodies and non-governmental organizations, among other things, is also provided to a person brought to administrative responsibility in accordance with the legislation of the Republic of Kazakhstan on administrative offenses.
On the basis of part 2 of the article under study, the constitutional rights of citizens to free legal aid are implemented, which is provided in certain cases provided for by national legislation.
State-guaranteed legal aid should be distinguished from comprehensive social legal aid provided by lawyers and legal consultants on a free basis in accordance with Article 19 of the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal Aid". Such assistance is called "pro-bono" in developed countries.
Comprehensive social legal assistance can also be provided outside of administrative proceedings (in parallel):
1) persons in difficult life situations, in accordance with the Law of the Republic of Kazakhstan "On Special Social Services";
2) persons entitled to targeted social assistance;
3) participants of the Great Patriotic War and persons equated to them;
4) disabled people of the first and second groups;
5) old-age pensioners;
6) elderly and disabled people living in medical and social institutions (organizations) for the elderly and general disabled;
7) other persons who are in a difficult social and financial situation.
As you can see, the above list of persons who receive gratuitous legal assistance is not closed and is subject to broad interpretation.
Free legal aid guaranteed by the state and provided for by the Administrative Code is provided on the basis and in accordance with Articles 18, 25-30 of the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal Assistance", as well as Articles 748-752 of the Administrative 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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