Commentary to article 749. Mandatory participation of a defender The Code of the Republic of Kazakhstan on Administrative Offences
1. The participation of a defender in the proceedings on an administrative offense is mandatory in cases where:
1) the person being brought to administrative responsibility applies for this.;
2) a person brought to administrative responsibility cannot independently exercise his right to protection due to physical or mental disabilities.;
3) the person being held administratively liable does not speak the language in which the proceedings are conducted;
4) the person being held administratively liable is a minor.
2. If, in the presence of the circumstances provided for in part one of this article, the defender is not invited by the person being held administratively liable, his legal representatives, as well as other persons on his behalf, the judge, the body (official) authorized to consider cases of administrative offenses must ensure the participation of the defender at the appropriate stage of the proceedings, as indicated by they issue a resolution. The resolution is sent for execution to the bar association of the region, the city of republican significance, the capital or its structural divisions and is subject to execution within no more than twenty-four hours from the moment of its receipt.
The provisions of the commented article provide for cases of mandatory participation of a defender in proceedings on an administrative offense.
It should be noted that the approach of the Kazakh legislator to the realization of the constitutional right of citizens to protection is to a certain extent very progressive. Many countries do not contain such a right or their legislation does not provide for norms establishing cases of mandatory participation of a defender and payment for their work at the expense of the state.
For example, the Code of Administrative Offences of the Russian Federation does not contain provisions providing for free legal assistance in cases of administrative offences. Consequently, when a person who is being held administratively liable has a desire to use the services of a defender, he will have to take care of it himself. This can be done by seeking legal assistance from a lawyer or other persons who can provide such assistance.
According to Part 1 of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, "everyone has the right to a fair and public hearing in the event of a dispute over his civil rights and duties or any criminal charge against him." Despite the fact that the Convention establishes guarantees for the provision of free defense counsel only to criminal defendants, "the European Court of Human Rights has expanded the interpretation of this article, extending its scope to most administrative offenses." In addition, the European Court of Human Rights has imposed on the domestic legislation of the State the responsibility for compliance with the principle of ensuring the right to protection.
Similar approaches have been incorporated into national legislation, including after consideration of these issues in a number of regulatory resolutions of the Constitutional Council of the Republic of Kazakhstan. For example, the regulatory 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" states that in accordance with paragraphs 2 and 3 of Article 16 of the Constitution ... every detainee, arrested, accused of committing a crime has the right to use the assistance of a lawyer (defender) from the moment of, respectively, detention, arrest or indictment.
"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.
Paragraph 3 of Article 16 of the Constitution establishes the guarantee of the right to personal freedom, defining the moment from which the suspect, the detainee, the accused have the right to use the assistance of a lawyer (defender). This rule is also relevant for administrative proceedings.
The need for mandatory participation of a defender in the proceedings on an administrative offense is due to the fact that in some cases, a person brought to administrative responsibility, due to various circumstances, cannot independently protect his rights and legitimate interests. In such cases, the initiation of an administrative offense case, as well as its consideration without the participation of a defense lawyer, is unacceptable.
According to part 1 of the commented article, the participation of a defender in the proceedings on an administrative offense is mandatory in the following cases::
1. If this is requested by the person being held administratively liable.
Often, persons brought to administrative responsibility use the help of a lawyer due to their lack of legal knowledge, as well as in the case of non-admission of guilt in the committed offense. When a person considers himself innocent of a committed offense, he seeks to use the help of a defender to appeal against court decisions or authorized officials.
If a person needs the help of a defender, then a note about this must be made in the protocol on an administrative offense.
It should be noted that the person against whom proceedings on an administrative offense are being conducted has the right to request the invitation of a defense attorney at any stage of the administrative process.
2. If the person being held administratively liable is unable to independently exercise his or her right to protection due to physical or mental disabilities.
In this case, the duty of the court or the official considering the case to ensure the participation of a defender in the case takes place only when there is a possibility that the person being held accountable will not be able to exercise his right to defense himself due to his state of health.
Physical disabilities that prevent a person from exercising their right to protection on their own should be understood as complete or partial loss of vision, hearing or speech, the presence of an acute or chronic serious illness, due to which a person has lost or weakened one of the abilities to correctly and fully perceive circumstances relevant to the case, as well as reproduce perceived, or such a physical condition, which, although it does not violate the cognitive abilities of the accused, however, it makes it impossible for him to manage without outside help and use his rights.
Mental disabilities are understood as a temporary disorder of mental activity, chronic mental illness, dementia, or other painful mental state that does not exclude sanity, but weakens or reduces cognitive abilities, or entails pathological features of the emotional and volitional sphere.
The presence of physical or mental disabilities in a person brought to administrative responsibility is confirmed by relevant documents issued by health authorities or expert opinions.
3. If the person being held administratively liable does not speak the language in which the proceedings are conducted.
The said person's ignorance of the language in which the administrative proceedings are conducted makes it impossible for him to know the basis for bringing him to justice, his procedural rights and obligations, as well as to get acquainted with the materials of the administrative case and to speak on his behalf during the consideration of the case. These circumstances indicate the need for such a person to receive legal assistance from a lawyer in order to prevent violations of his rights and legitimate interests.
4. If the person being held administratively liable is a minor. Minors under the administrative legislation of the Republic of Kazakhstan are recognized as persons who, at the time of the commission of an administrative offense, were sixteen but under the age of eighteen.
Since at this age a person is incapacitated, accordingly, he cannot fully understand the nature of the act committed, as well as the harmfulness of its consequences, and, accordingly, independently protect his rights. Therefore, in order to ensure the proper protection of the rights of a minor, a defender must be involved in the proceedings on an administrative offense.
If the person being held administratively liable is a minor, or does not speak the language in which the proceedings are conducted, or because of physical or mental disabilities cannot independently exercise his right to defense, then the participation of a defender is mandatory even when this person refuses the help of a lawyer or any other defender.
Part 2. A person in respect of whom proceedings on an administrative offense are being conducted has the right to independently invite his lawyer to provide legal assistance.
If, for any reason, a person was unable to invite a defense lawyer, but needs his help, the court or the official considering the case of an administrative offense must issue an appropriate resolution and ensure the presence of a defense lawyer.
The above-mentioned reasons include such as the person's inability to pay for the services of a lawyer, the failure to reach an agreement on assistance between this person and the invited lawyer due to various circumstances, etc. Moreover, it is prohibited to accept a lawyer for lack of the necessary money, which is directly regulated in Part 1 of Article 751 of the Administrative Code.
The decision on the appointment of a defender is sent to the bar association of the region, the city of republican significance, the capital or its structural divisions and is subject to execution within no more than twenty-four hours from the moment of its receipt.
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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