Commentary to article 654. Responsibility of participants in the proceedings in the case of an administrative offense  The Code of the Republic of Kazakhstan on Administrative Offences  

     Refusal or non-appearance of the participant in the proceedings to the body (to the official) considering the case of an administrative offense, without a valid reason, which caused the postponement of the proceedings, –

     they entail a fine in the amount of ten monthly calculation indices.

      The general object of the offense is the established procedure for ensuring the functioning of public authorities.

     The generic object of the offense is the social and legal relations that arise when observing the rules of procedure in cases of administrative offenses.

     Any administrative offense entails administrative liability under the Administrative Code. For a full and comprehensive examination of the case of an administrative offense, administrative proceedings are initiated. From the moment the proceedings on an administrative offense are initiated, the persons involved in it acquire the status of a participant in the proceedings.

     Cases of administrative offenses are considered by officials of authorized state bodies. The powers of officials of authorized State bodies are imperatively and exhaustively established by the Code, depending on the category of an administrative offense and the position held by such an official.

     All categories of cases of administrative offenses are reviewed and resolved individually, respectively, by officials of authorized state bodies.

     The commented article establishes the responsibility of the participants in the proceedings for refusing or failing to appear before the official considering the administrative case. There is no general rule in the Administrative Code that would oblige all participants in the proceedings to appear before the body (official) in whose proceedings the case is.

     The obligation to report to the body (to an official) is specified in the Code for the following participants:

     - The witness is obliged to appear at the summons of the judge, the body (official) in charge of the administrative offense case, truthfully report everything he knows about the case and answer the questions raised, certify with his signature in the relevant protocol the correctness of his testimony (Part 3 of art. 754 of the Administrative Code);

     - The victim is obliged to appear at the summons of the official in charge of the administrative offense case, take part in the proceedings on this case and certify with his signature in the relevant protocol the fact of the actions carried out with his participation, their content and results (part 3 of art. 755 of the Administrative Code);

     - The specialist is obliged to: appear at the summons of a judge, an authority (official) conducting proceedings on an administrative offense... (part 3 of art. 756 of the Administrative Code);

     - The expert is obliged to: appear at the summons of the judge, the body (official) in charge of the administrative offense case... (part 4 of art. 757 of the Administrative Code);

     - The translator must: appear at the summons of the judge, the body (official) in charge of the administrative offense case, and perform the translation fully and accurately assigned to him ... (Part 4 of art. 758 of the Administrative Code). That is, persons performing procedural functions and facilitating the conduct of proceedings, clarifying the objective truth.

     Also, when considering a case of an administrative offense, participation is mandatory.:

     1) a minor in respect of whom administrative proceedings are being conducted, and his legal representative;

     2) an individual in respect of whom a protocol on an administrative offense has been drawn up providing for an administrative penalty in the form of administrative arrest;

     3) a foreigner or a stateless person, in respect of whom a protocol on an administrative offense has been drawn up, for which the sanction of the article provides for an administrative penalty in the form of expulsion from Kazakhstan.

     If the named persons evade appearance, they are brought on the basis of the determination of the body considering the case of an administrative offense, executed by the internal affairs bodies. The drive is not applied to the defender of the person to whom the protocol on an administrative offense has been drawn up.

     The objective side of the act is manifested in illegal actions (inaction) that violate the procedure for considering the case by:

     1) Refusal to participate in the proceedings on an administrative offense;

     2) Failure to appear at the body (official) considering the case of an administrative offense.

     Refusal to participate in the proceedings on an administrative offense is an action that is expressed in the direct evasion of a participant in the proceedings from the duties assigned to him by the Administrative Code.  

     Failure to appear at the body (official) considering the case of an administrative offense is inaction on the part of the subject of the offense, it will be qualified as an offense provided for in this article only if the person (participant in the proceedings) has been duly notified of the time and place of the case. In accordance with Part 4 of Article 743 of the Administrative Code, a notification is recognized as duly delivered in the following cases::

     1) the presence of the signature of the person being held administratively liable in the appropriate column of the protocol on an administrative offense;

     2) notices of a person by registered letter or telegram, which are delivered to him personally or to one of the adult family members living with him against a receipt for the delivery notification to be returned to the sender. A notification addressed to a legal entity is handed over to the head or employee of the legal entity, who signs the receipt of the notification on the delivery notification indicating his last name, initials and position.;

     3) sending a text message to a cellular subscriber number or e-mail address, which the notified person indicated during the proceedings and confirmed with his signature;

     4) sending a notification (notification) by the state revenue body electronically to persons registered as electronic taxpayers in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan.

     That is, the person knew about the need to appear at the authority (to the official) to consider the case of an administrative offense, but did not arrive and did not file petitions for postponement of the case. By the way, requests for adjournment of the case will be granted if the participant in the proceedings has a valid reason, this provision also corresponds to the disposition of the commented article. These reasons include the state of health, being on a business trip, and other circumstances that are urgent.

     For example, an officer of the highway patrol police appoints a motor vehicle examination to establish the mechanism of a traffic accident and bring the perpetrator to justice. The expert, having conducted the research, sends the conclusion to the DPP employee. The official notifies the participants of the accident about the time and place of consideration of the case of an administrative offense, along with them, he considers it necessary to ensure the appearance of an expert, since the conclusions in the conclusion are not clear to him and are ambiguous. The expert is also notified by registered mail. However, the expert does not appear for consideration of the case, which makes it impossible to consider the case on its merits. Such actions will be qualified as the failure of a participant in the proceedings to appear before the body (official) considering the case of an administrative offense.

     The subjects of the offense may be individuals or legal entities participating in the proceedings who avoid appearing before an official to consider a case of an administrative offense.  

     The term "participant in the proceedings" primarily covers the bodies and persons authorized to conduct proceedings in cases of administrative offenses, as well as the participants listed in Chapter 38 of the Administrative Code.

     Therefore, the opinion should be supported that the term "Subjects of proceedings in cases of administrative offenses" is a generalization for two groups of subjects.:

     - officials (bodies) representing the ruling party conducting the proceedings;

     - persons taking part in the proceedings on the case.

     The second group is represented by persons involved in production (participating in it), i.e. participants in production. It is they who will act as the subject of the offense of the article under study.

     The legal status of participants in the proceedings on administrative offenses is defined in the articles of Chapter 38 of the Administrative Code. Participants in the proceedings on administrative offenses are entities that perform certain procedural functions in accordance with the procedure and form established by law, the specific content of which depends on their place in the proceedings, as well as on the tasks and functions they perform in it.

     Herman E.S. proposed dividing this group of participants into the following categories (subgroups):

     a) persons whose interests are affected by the proceedings in the case of an administrative offense - the person against whom proceedings are being conducted in the case of an administrative offense (Article 744 of the Administrative Code) and the victim (Article 745 of the Administrative Code), who in certain cases can act as citizens, officials and legal entities.;

b) persons defending or representing the interests of other persons - legal representatives of an individual (Article 746 of the Administrative Code), representatives of an individual entrepreneur, a legal entity (Article 747 of the Administrative Code), a defender (Article 748 of the Administrative Code) and a representative of the victim (Article 753 of the Administrative Code);

     c) persons performing procedural functions and facilitating the conduct of proceedings to clarify the objective truth - witness (Article 754 of the Administrative Code), understood (Article 755 of the Administrative Code), specialist (Article 756 of the Administrative Code), expert (Article 757 of the Administrative Code), translator (Article 758 of the Administrative Code) - (judicial team). Some of them (witnesses, experts) report the data to the authorized body or official. Others (translators, witnesses, specialists) are needed to consolidate evidence or provide the necessary conditions for administrative proceedings.

     As Serov A.S. notes, the current legislation on administrative offenses does not establish the concept of a participant in proceedings on administrative offenses, however, its definition has been developed by modern administrative and legal science, according to which participants in proceedings on administrative offenses are entities that perform certain procedural functions in accordance with the procedure and form established by law, the specific content of which depends on They depend on the tasks they perform in cases of administrative offenses.  

     In other words, the legal status of the participants in the proceedings on administrative offences depends on the place each of them occupies in the proceedings on administrative offences.

     Therefore, despite the fact that the scope of procedural rights and obligations for each of them is far from the same, nevertheless, the procedural status of each of the participants is due to the presence of a number of common features characterizing their legal status, which predetermined the position of the legislator to combine them under one chapter of the Administrative Code. Such signs, in our opinion, are the lack of authority of these subjects, their varying degree of interest in the case, as well as the obligation to facilitate production by virtue of their official or public duty.

     The subjective side of the offense is characterized by intent.

     For refusal or non-appearance of a participant in the proceedings to the body (to an official), the right to draw up a protocol on an administrative offense belongs to:

     1) Officials of the internal affairs bodies (in terms of offenses provided for in articles 590, 591, 592, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 610, 611, 612, 613, 662, 663, 665, 667, 669, 674, 675) – paragraph 1 of Part 1 of Article 804 of the Administrative Code;

     2) Officials of state revenue bodies - paragraph 31 of part 1 of Article 804 of the Administrative Code;

     3) Bailiffs and other court staff authorized by the chairman of the court or the chairman of the court session - paragraph 57 of part 1 of Article 804 of the Administrative Code. However, it is not clear why bailiffs and other participants in the courts are granted such a right, because the disposition of the article provides for liability for failure to appear at the authority (to an official), but not in court.

     In accordance with art. 684, the consideration and imposition of an administrative penalty under this article belongs to the jurisdiction of the courts. A fine of 10 MCI is imposed for the offense provided for in this article.

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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