Commentary to article 24. Judicial protection of the rights, freedoms and legitimate interests of a person of the Code of the Republic of Kazakhstan on Administrative Offenses
1. Everyone has the right to judicial protection of their rights and freedoms. An interested person has the right, in accordance with the procedure established by law, to apply to the court for protection of violated or disputed rights, freedoms or legally protected interests.
2. The prosecutor has the right to file a claim (statement) with the court in order to carry out the duties assigned to him and to protect the rights of individuals, organizations, public and state interests.
3. The jurisdiction provided for by law may not be changed by anyone without his consent.
4. The court is obliged to explain to the legal representative of the person in respect of whom proceedings are being conducted on an administrative offense, or the victim, who are minors or, due to their physical or mental condition, are deprived of the opportunity to independently exercise their rights, the right provided for in part five of Article 683 of this Code.
The institution of judicial protection is an important element of the modern system of constitutional guarantees for the realization of human and civil rights and freedoms. The observance of the fundamental rights and freedoms of an individual and the protection of his legitimate interests are possible only in a State where the rule of law is ensured. The state undertakes the task of not only formally proclaiming the rights of every citizen to go to court to protect their legitimate interests, but also acts as a valid guarantor of the legal security of this category of rights, which obviously follows from the text of art. 1 of the Basic Law of the Constitution of the Republic of Kazakhstan: "The Republic of Kazakhstan asserts itself as a democratic, secular, legal and social state, the highest values of which are man, his life, rights and freedoms."
The principle of judicial protection of the rights, freedoms and legitimate interests of citizens is enshrined in Part 1 of Article 76 of the Constitution of the Republic of Kazakhstan. Judicial power is exercised on behalf of the Republic of Kazakhstan and has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic.
Part 1 of the commented article provides for the right of citizens to judicial protection of their rights and freedoms. The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2010 No. 4 draws the attention of the courts that, along with the direct resolution of court cases, it is necessary to implement the functions of the judiciary to protect against illegal, unjustified restrictions on the rights and freedoms of persons involved in criminal proceedings, timely adoption of legally prescribed measures aimed at their restoration, as well as compensation the harm caused. These requirements are also relevant for the administrative process.
The same part of Article 24 of the Administrative Code stipulates that an interested person has the right, in accordance with the procedure established by law, to apply to the court for protection of violated or disputed rights, freedoms or legally protected interests.
Moreover, in accordance with Part 4 of Article 683 of the Administrative Code, upon a written application from a person against whom proceedings on an administrative offense are being conducted, a case on any offense provided for in a Special Part of the Code is considered by a judge if it is filed before the hearing of an administrative offense case. And it is allowed to appeal against the actions of the official conducting the proceedings in the case of an administrative offense immediately to the court. A preliminary appeal to a higher authority (official) is not a prerequisite for filing a complaint with the court and its acceptance by the court for consideration and resolution on the merits.
The legal basis for judicial protection is laid down in the Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial system and the Status of Judges of the Republic of Kazakhstan". Everyone is guaranteed judicial protection from any unlawful decisions and actions of State bodies, organizations, officials and other persons that infringe on or restrict the rights, freedoms and legitimate interests provided for by the Constitution and laws of the Republic. No one can be deprived of the right to have his case examined in compliance with all the requirements of the law and justice by a competent, independent and impartial court.
According to part 2 of the article in question, the prosecutor has the right to file a claim (statement) with the court in order to carry out the duties assigned to him and to protect the rights of individuals, organizations, public and state interests.
This right of the staff of the Prosecutor's Office is constitutional. According to Part 1 of Article 83 of the Constitution of the Republic of Kazakhstan, the Prosecutor's Office, on behalf of the State, carries out, within the limits and forms established by law, supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan, represents the interests of the State in court and carries out criminal prosecution on behalf of the State.
Article 760 of the Administrative Code lists all the powers of the prosecutor to ensure the legality of proceedings in cases of administrative offenses, which are as follows:
1) submit to the court, body (official) a protest against the decision on the case of an administrative offense or an order on the need to pay a fine;
2) give written instructions to authorized officials and bodies (other than the court) on the conduct of an additional audit;
3) require authorized bodies to conduct inspections in organizations under their control or subordination;
4) in cases prescribed by law, terminate proceedings on an administrative offense;
5) suspend the execution of an administrative penalty order or a fine order.;
6) to issue a resolution on the release of a person unlawfully subjected to administrative detention;
7) issue a resolution or demand for the lifting of any prohibitive or restrictive measures imposed by government officials in connection with the performance of their duties in cases of violation of the rights and legitimate interests of individuals, legal entities and the state;
8) to issue a resolution on the initiation of proceedings in the case of an administrative offense.
As you can see, these powers do not correspond to the content of Part 2 of Article 24 of the Administrative Code. However, article 30 of the Law of the Republic of Kazakhstan dated June 30, 2017 "On the Prosecutor's Office" stipulates that the prosecutor has the right to file a statement (statement of claim) with the court in accordance with the procedure and on the grounds established by law. If acts of prosecutorial supervision are rejected or left without consideration, the prosecutor applies to the court for recognition of acts, decisions and actions (inaction) of bodies and officials as illegal.
The procedure for conducting claim proceedings is regulated by subsection 2 of the Civil Procedure Code of the Republic of Kazakhstan. The prosecutor's application is considered by the court within ten days from the date of completion of the preparation of the case for trial with the participation of the prosecutor and with the participation of the body, the official who made the decision to reject the protest, or his representative.
Part 3 of the article under study implements the constitutional right of citizens that no one can change the jurisdiction provided for by law without his consent (paragraph 3) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan).
In administrative and tort proceedings, territorial jurisdiction is distinguished, in which the case of an administrative offense is subject to consideration in the territory specified in the law, and alternative jurisdiction, in which the case of an administrative offense can be considered by a court at the place of commission of the administrative offense or at the place of residence of the person in respect of whom the proceedings are being conducted.
At the same time, cases of administrative offenses belong to the jurisdiction of specialized administrative courts, specialized juvenile courts, district (city) courts, as well as courts of appeal and cassation instances.
There are two aspects to the principle of jurisdiction: 1) objective, when the jurisdiction of a case is determined at the discretion of the legislator, and it may not always be fair, and 2) subjective, when a person involved in the process has the right to file a motion to change the jurisdiction of the case or to comply with the jurisdiction. The subjective aspect of the constitutional principle of jurisdiction is expressed in the fact that, at the request of the person against whom proceedings on an administrative offense are being conducted, or his legal representative, the case of an administrative offense may be referred to the court.:
- at the place where the administrative offense was committed;
- at the place of residence of the person in respect of whom proceedings are being conducted in the case of an administrative offense;
- at the place of registration of the vehicle or small vessel;
- at the place of residence of a minor in respect of whom proceedings are underway on an administrative offense (Articles 812 and 813 of the Administrative Code).
According to part 4 of the commented article, the court is obliged to explain to the legal representative of the person against whom proceedings are being conducted on an administrative offense, or the victim, who is a minor or, due to his physical or mental condition, is unable to exercise his rights independently, the right provided for in Part 5 of Article 683 of the Administrative Code.
Upon written application or upon application in the form of an electronic document certified by an electronic digital signature, the legal representative of the person against whom proceedings are being conducted on an administrative offense, or the victim, who is a minor or, due to his physical or mental condition, is unable to exercise his rights independently, the case may be considered in specialized district and equivalent to administrative courts, and in the absence of such courts - in courts of general jurisdiction (Part 5 of art. 683 of the Administrative Code).
Article 746 of the Administrative Code defines the legal representative of an individual, who may be parents, adoptive parents, guardians, guardians and other persons in whose care or dependents he is. On the basis of Part 5 of this article, the legal representatives of an individual against whom proceedings on an administrative offense are being conducted and the victim have the rights and duties provided for by the Administrative Code in relation to the persons they represent.
Violation of the principle in question may be recognized by the court as a significant violation of the procedural rules of the Administrative Code. Based on art . 843 of the Administrative Code, if any other significant violation of procedural rules has been committed during the consideration of an administrative offense case, the judge reviews the case, while taking measures to eliminate the violation, cancels, respectively, the court decision of the relevant specialized district and equivalent administrative court and juvenile court, a higher authority (official), and, taking into account the results of the consideration of the case, issues a new resolution.
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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