Commentary to article 750. Invitation, appointment, replacement of the defender, payment of his work of the Code of the Republic of Kazakhstan On Administrative Offenses
1. A defender shall be invited by the person against whom proceedings on an administrative offence are being conducted, his representatives, as well as other persons on behalf of or with the consent of the person against whom proceedings on an administrative offence are being conducted. A person against whom proceedings on an administrative offense are being conducted has the right to invite several defenders to defend him.
2. At the request of the person in respect of whom proceedings on an administrative offense are being conducted, the participation of a defense attorney is provided by a judge, an authority (official) authorized to consider cases of administrative offenses.
3. In cases where the participation of an elected or appointed defender is not possible within twenty-four hours, the judge, the body (official) authorized to consider cases of administrative offenses has the right to propose to the person against whom proceedings on an administrative offense are underway to invite another defender or to take measures to appoint a defender through the bar association or its structural divisions. A judge, body (official) authorized to consider cases of administrative offenses may not recommend to a person against whom proceedings on an administrative offense are being conducted to invite a certain person as a defender.
4. In the case of administrative detention, if the appearance of a defender elected by the person against whom proceedings on an administrative offense are being conducted is impossible within three hours, the judge, the body (official) authorized to consider cases of administrative offenses, suggest to the person against whom proceedings on an administrative offense are being conducted, invite another a lawyer, and in case of refusal, takes measures to appoint a lawyer through the bar association or its structural divisions.
5. The lawyer's remuneration is made in accordance with the legislation of the Republic of Kazakhstan. A judge, body (official) authorized to consider cases of administrative offenses, if there are grounds for that, are obliged to release the person against whom proceedings on an administrative offense are being conducted from paying for legal assistance. In this case, the payment is made at the expense of budgetary funds.
6. Expenses for the remuneration of lawyers shall be made at the expense of budgetary funds and in the case provided for in Part two 749 of this Code, when the lawyer participated in the proceedings on the case as appointed.
7. A lawyer enters into an administrative offense case as a defender upon presentation of a lawyer's certificate and a written notice of protection (representation) provided for by the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance". The demand for other documents confirming the lawyer's authority to conduct a specific case is prohibited. Other persons specified in part two of Article 748 of this Code shall submit documents confirming their right to participate in the case as a defense attorney (marriage certificate, as well as documents specified in part three of Article 746 and part three of Article 747 of this Code.
Part 1. In this article, the concepts of "inviting a defender", "providing a defender" and "appointing a defender" are used. The listed concepts are different in their content and differ from each other in certain ways.
The invitation of the defender is carried out by the person against whom the proceedings on the case of an administrative offense are being conducted, or by his legal representative. Other persons may invite a lawyer only on behalf of or with the consent of the said person. The assignment to invite a lawyer is related to the conclusion of a contract of assignment (written or oral). The procedure for concluding such an agreement and its form are established by the norms of the civil legislation of the Republic of Kazakhstan.
If the person being held accountable is a minor, then his order or consent to the transaction at the invitation of the defender requires written confirmation from his legal representative.
If it is established that proceedings on an administrative offense are being conducted against an incompetent or a person with limited legal capacity, then inviting a defender or giving instructions or consent to his invitation is the exclusive right of the guardian or trustee.
The invitation of a defender must be made at the written or oral request of the person being held administratively liable, with this request recorded in the protocol on an administrative offense.
A person in respect of whom proceedings on an administrative offense are being conducted has the right to invite several defenders at the same time to ensure the protection of his rights and legitimate interests. The legislation of the Republic of Kazakhstan on administrative offenses does not limit the number of defenders invited by a person.
Part 2. At the request of the person being held administratively liable, the participation of a defense lawyer may be provided by a court or an authority (official) considering an administrative offense case. Ensuring the participation of a defender differs from his invitation in the following ways:
1) the subjects of the provision are the court or the body (official), and not the person being held accountable.;
2) the participation of the defender is ensured not on behalf of the person being held accountable, but at his request.
A request from a person, and according to the rules of subclause 1) of Part 1 of Article 749 of the Administrative Code – a petition, is mandatory for a judge, an authority (official) authorized to consider cases of administrative offenses. They are obliged to ensure the participation of a defender at the appropriate stage of the proceedings, which they decide on. Such a resolution is sent for execution to the bar association of the region, the city of republican significance, the capital or its structural divisions.
Part 3. The appointment of a defender is carried out by the court, the body (official) considering the case of an administrative offense in the order of replacement in case of non-appearance of the elected or previously appointed defender within 24 hours from the moment the person submits the petition for the invitation of the defender. In this case, the judge, the body (official) must first propose to the person being held administratively liable to invite another defender himself, and if he refuses to do so, then take measures to appoint a defender by issuing an appropriate resolution and sending it to the bar association. At the same time, a judge or an authorized official does not have the right to recommend to the person being held accountable to invite any particular person as a defender.
Part 4. Even stricter rules regarding the replacement of a defender apply in the case of administrative detention of a person against whom proceedings are underway on an administrative offense, since in this case a short period of time is allocated for the replacement of a defender. If it turns out that the appearance of a lawyer invited by a person is impossible within three hours from the moment of the beginning of administrative detention, the judge or the official considering cases of an administrative offense suggests to the detained person to invite another defender, and in case of his refusal to invite a specific defender, issues a resolution on the appointment of a defender and sends it to the bar association. This is due to the requirements of Article 749 of the Administrative Code.
Part 5. Remuneration of a lawyer in administrative offences proceedings is made in accordance with the provisions of this article, the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal Assistance", as well as Resolution of the Government of the Republic of Kazakhstan dated December 29, 2015 No. 1110.
In accordance with the above-mentioned Law, lawyers in the Republic of Kazakhstan are subjects of providing state-guaranteed legal assistance. All citizens of the Republic of Kazakhstan have the right to receive legal aid.
The person in respect of whom the proceedings are being conducted has the right to pay for the services of a lawyer at the expense of his own funds. This type of payment takes place if a lawyer is invited by a person who is being held administratively liable. In this case, the amount of payment for legal assistance provided by a lawyer and reimbursement of expenses related to protection and representation is established by a written agreement between the lawyer and the person who requested help. The contract is concluded in accordance with the procedure established by the civil legislation of the Republic of Kazakhstan. The contract is drawn up in two copies, one of which is handed over to the person with whom the contract for the provision of legal assistance has been concluded.
In addition, the legislation of the Republic of Kazakhstan also allows the remuneration of a lawyer from the republican budget. In accordance with the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance", the grounds for a lawyer to provide legal assistance to a person in respect of whom proceedings on an administrative offense are being conducted at the expense of the republican budget are established by the norms of the Administrative Code. This is explicitly stated in paragraph 1) paragraph 2 of Article 26 of the mentioned Law. The above reasons are set out in the commented article.
The services of a lawyer in providing legal assistance to a person brought to administrative responsibility are paid from the republican budget in cases of ensuring the participation of a lawyer or his appointment by a court or an authority (official) considering an administrative offense case.
It should also be remembered that one of the innovations of the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance" is the introduction of comprehensive social legal assistance provided free of charge in accordance with the contract and consisting in legal support for the client from the moment he applies for legal assistance. It is carried out voluntarily according to the rules of art. 19 of the Law of the Republic of Kazakhstan "On advocacy and legal assistance".
If the person being held administratively liable has declared his refusal of a defender, but the refusal was not satisfied, and the defender participated in the proceedings on an administrative offense, then the costs of his labor are reimbursed from the republican budget.
Part 6 of the commented article provides for the possibility of paying a lawyer at the expense of the republican budget if they provide legal assistance to a person brought to administrative responsibility who, due to physical or mental disabilities, is unable to independently exercise his right to defense. The list is defined in detail in Article 749 of the Administrative Code.
Part 7. A lawyer is allowed to participate in proceedings on an administrative offense as a defender upon presentation of a lawyer's certificate and a written notice of protection (representation) provided for by the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance." The lawyer's certificate and written notice of protection (representation) confirm the lawyer's authority to conduct a specific case. The form of the written notice of protection (representation), including the list of other information included in it, is approved by the Republican Bar Association in coordination with the authorized body.
The powers of a foreign lawyer who carries out his activities on the basis of a relevant international treaty ratified by the Republic of Kazakhstan are confirmed by identity documents, the lawyer's status and his authority to provide legal assistance.
Other persons who have the right to act as defenders in an administrative offense case are required to provide documents confirming their identity, family ties with the defendant, the fact of establishing custody or guardianship over the defendant, as well as certifying their official position (for representatives of legal entities).
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
