Commentary to article 739. Calculating deadlines The Code of the Republic of Kazakhstan on Administrative Offences
1. The time limits used in the proceedings on cases of administrative offenses are calculated in hours, days, months and years.
2. When calculating the time limits, the hour and the day on which the time limit begins are not taken into account. This rule does not apply to the calculation of time limits during detention.
3. When calculating the time limit, non-working hours are also included in it, except in cases when the time limit is calculated in days.
4. When calculating the period in days, the period is calculated after zero hours of the first day and expires at twenty-four hours of the last day of the period.
5. When calculating the term in months or years, the term expires on the corresponding day of the last month, and if this month does not have a corresponding date, the term ends on the last day of this month. If the end of the term falls on a non-working day (weekend, holiday), then the last day of the term is considered to be the first working day following it, except in cases of calculating the term during administrative detention.
Part 1. The legislation defining the procedure for proceedings in cases of administrative offenses sets the time limits within which certain procedural actions in the case of an administrative offense must be carried out.
All movements in the case are limited to certain time intervals that must be observed. Meeting deadlines avoids delays, unreasonable delays, red tape and, consequently, the associated dissatisfaction of the participants in the proceedings. Violation of deadlines is unacceptable and may entail liability established by law, invalidation of adopted acts and their cancellation.
Based on the principle of supreme legal force and the direct effect of the Constitution of the Republic of Kazakhstan on the entire territory of the state, it is worth taking into account the provisions of the normative resolution of the Constitutional Council of the Republic of Kazakhstan dated April 13, 2012 No. 2 "On the official interpretation of the norms of the Constitution of the Republic of Kazakhstan on the calculation of constitutional time limits" on the meaning of time limits.
According to this resolution, the importance of deadlines is to streamline public relations and create a mechanism for implementing the provisions and norms of the Constitution. The specific deadlines stipulated in the Basic Law limit the possibility of restrictions by authorized bodies and officials on human and civil rights, and create prerequisites for guaranteeing individual freedom. They also determine the periods of activity of individual government agencies and officials, the beginning and end of their exercise of authority, as well as the interaction of branches of government under the system of checks and balances. Compliance with these deadlines is one of the conditions for ensuring constitutional legality.
In the proceedings on cases of administrative offenses, time limits are used, which are calculated in hours, days, months and years. It should be noted that this provision is included in Section 4 of the Administrative Code and applies to the procedure for administrative proceedings. For administrative and tort legal relations, the legislator did not introduce this nome into the Code. This is due to the fact that the objective side of the dispositions of the majority of articles in a Special part stems from their material norms contained in industry legislation. And it, in turn, mainly uses other time categories, for example, working days, calendar days, weekends, etc. This part implements the provisions of the Law of the Republic of Kazakhstan on December 13, 2001 No. 267 "On holidays in the Republic of Kazakhstan".
The introduction of Article 739 to the Administrative Code in 2014 is presumably dictated by the legislator's desire to harmonize the approach to calculating time limits in procedural legislation (with criminal procedure) in order to respect the constitutional rights of citizens, for example, to limit the terms of imprisonment in connection with his delivery, detention and the use of arrest.
Time limits calculated in hours are used to ensure that procedural actions or procedural decisions that restrict the rights and freedoms of participants in the proceedings are performed in the shortest possible time. The procedure of administrative detention can serve as an exemplary example in this aspect. Administrative detention is a short-term restriction of the personal freedom of an individual, a representative of a legal entity, or an official in order to prevent an offense or ensure proceedings.
The right to personal freedom is one of the fundamental human rights (paragraph 1 of Article 16 of the Constitution). It belongs to everyone from birth, is recognized as absolute and inalienable and, in accordance with paragraph 3 of Article 39 of the Basic Law, is one of the rights and freedoms that cannot be restricted in any cases, except for those established by the norms of the Constitution itself. "Detention" in the constitutional and legal sense should be understood as a measure of coercion, expressed in a short-term, no more than seventy-two hours, restriction of a person's personal freedom in order to prevent an offense or ensure proceedings in criminal, civil and administrative cases, as well as the use of other coercive measures, and carried out by authorized state bodies, officials and others. by persons on the basis and in the manner prescribed by law.
According to Article 789 of the Administrative Code, administrative detention may last no more than three hours. A person against whom proceedings have been initiated for illegal entry into protected facilities, violation of the legislation of the Republic of Kazakhstan in the field of population migration, violations of the regime of the State Border of the Republic of Kazakhstan, border and customs regimes or the regime at checkpoints across the State Border of the Republic of Kazakhstan and the customs border of the Eurasian Economic Union, as well as an administrative offense on the continental shelf, territorial waters (sea) and internal waters of the Republic of Kazakhstan, may be detained, if necessary, to establish the identity and clarify the circumstances of the offense for up to forty-eight hours, with a written notification to the prosecutor within twenty-four hours from the moment of detention. Persons who violate the procedure established in connection with the imposition of a curfew in an area where a state of emergency has been declared may be detained by law enforcement officers (police) or military patrols until the end of the curfew, and those who do not have documents with them – until their identity is established, no more than for forty-eight hours. A person against whom proceedings have been initiated in a case of an administrative offense entailing administrative arrest as one of the measures of administrative punishment may be subjected to administrative detention until the case of an administrative offense is considered, but not more than twenty-four hours.
Calculating certain periods by days also contributes to the rapid resolution of the tasks of proceedings in cases of administrative offenses. Thus, cases of administrative offenses are considered within fifteen days from the date of receipt by the body (official) authorized to consider the case, the protocol on the administrative offense and other case materials (Part 1 of art. 817 of the Administrative Code).
Calculating the time limits in months, if necessary, makes it possible to ensure the comprehensiveness, completeness and objectivity of clarifying the circumstances of each case. For example, if petitions are received from participants in the proceedings on an administrative offense, or if additional clarification of the circumstances of the case is required, the time limit for consideration of the case may be extended by the body (official) reviewing the case, but not for more than one month (Part 2 of art. 817 of the Administrative Code).
The use of annual deadlines is associated with ensuring the exercise of the rights and obligations of participants in the proceedings, provides an opportunity to correct errors after the completion of the proceedings, etc. Annual deadlines are used when appealing, protesting a decision on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on a complaint, protest; appeal, bringing an appeal petitions by the prosecutor for a court order.
Part 2. The hour and the day by which the beginning of the term is determined are not counted in its duration. As a general rule, the time limit starts from the next day. The exception is administrative detention. The beginning of the period of detention is the hour, to the exact minute, when the restriction of the freedom of the detained person, including freedom of movement, is forced to be held in a certain place, forcibly brought to the bodies of inquiry and investigation (seizure, closure in a room, coercion to go somewhere or stay in place, etc.), as well as any other Actions that significantly restrict a person's personal freedom have become real, regardless of giving the detainee any procedural status or performing other formal procedures. The end of this period is the expiration of three hours, calculated continuously from the time of the actual detention to the nearest minute.
Part 3. The content of Part 3 of Article 739 of the Administrative Code is a novel by the Institute of time calculation. So, for clear and unambiguous enforcement, when calculating the time limit, non-working hours are also included in it, except in cases when the time limit is calculated in days. Traditionally, weekends and holidays are considered non-working hours.
Part 4. The calculation of the time limit in days begins after zero hours of the day following the legal fact entailing the expiration of the time limit. As noted earlier, the hour and the day on which the term begins are not taken into account when calculating deadlines.
Part 5. There are cases when the end of the term falls on a month that does not have a corresponding date. In this case, the deadline expires on the last day of this month. For example, the deadline for appealing a ruling in an administrative offense case was supposed to expire on September 31, and the protest is filed on September 30, since September does not have a 31st date.
The procedural period runs continuously, including non-working days, which include holidays and weekends. According to the Law "On Holidays in the Republic of Kazakhstan", public holidays, in accordance with the labor legislation of the Republic of Kazakhstan, are days on which national and state holidays are celebrated in the Republic of Kazakhstan. If a weekend and a public holiday coincide, the day off is the next working day after the holiday. The term of administrative detention expires regardless of whether his last day is a non-working day or a working day.
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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