Commentary to article 751. Refusal of the defender of the Code of the Republic of Kazakhstan On Administrative Offenses
1. A person in respect of whom proceedings on an administrative offense are being conducted has the right to refuse a lawyer at any time during the proceedings, which means that he intends to defend himself independently. The refusal of a lawyer for reasons of lack of funds to pay for legal aid is not accepted. The refusal must be made in writing.
2. The refusal of a defense attorney does not deprive the person against whom proceedings on an administrative offense are being conducted of the right to further request the admission of a defense attorney to participate in the case. The entry of the defender into the case does not entail a repetition of the actions that were committed by that time during the consideration of the administrative offense case.
Part 1. This article states that a person against whom proceedings on an administrative offense are being conducted has the right to refuse the assistance of a defense attorney at any stage of the proceedings on an administrative offense.
However, it is necessary to distinguish between the refusal of a person from the services of a particular defender and the refusal of the help of any defender at all. Refusing to help a particular defender may result in replacing him with another defender, as mentioned in the previous article.
Refusal of the assistance of a defender generally has the immediate consequence not of replacing the defender, but of exercising the rights of the person being held administratively liable independently.
In this case, the refusal of the assistance of a defender must be recorded in writing in the protocol on the administrative offense.
If the person being held administratively liable refuses the services of a defender at the stage of consideration of an administrative offense case, a written statement addressed to the judge or the official considering the administrative case is selected from him, in which he indicates his refusal to provide assistance to the defender and to protect his rights independently.
If the person being held administratively liable has refused the services of a defender in his presence, then a written notice of the defender's protection (representation) should be attached to the materials of the administrative offense case, as this confirms that the person has a real opportunity to use the help of this defender, including at the time of making the appropriate decision.
The reasons for the refusal of a defender and the real ability of the person against whom proceedings are being conducted on an administrative offense to independently defend their rights and legitimate interests should be carefully investigated and evaluated by the court or the official considering the administrative case.
At the same time, the reasons for such a refusal should be established. The absence of funds from a person being held administratively liable to pay for the services of a defender is not a reason for this person's refusal of legal assistance from a defender.
In this case, the court, the body (official) considering the case of an administrative offense, is obliged to ensure the participation of the defender in the proceedings on the case of an administrative offense. In this case, the services of a lawyer in providing legal assistance will be paid for from the republican budget.
Part 2. The refusal of a person against whom proceedings on an administrative offense are being conducted from the assistance of a defense attorney does not deprive him of the right to request the invitation or provision of a defense attorney during further administrative proceedings.
For example, if a person being held administratively liable has refused the services of a defense attorney at the stage of initiating an administrative offense case, this does not prevent him from using the help of a defense attorney at the stage of considering the case or executing the decision taken in the case.
If the defender began to participate in the proceedings on an administrative offense at the final stage of the case, then the actions committed before during this stage of the administrative proceedings are not repeated. Such actions are understood as actions of a procedural nature aimed at collecting evidence of a committed offense and establishing the truth in the case. Examples include interviewing participants in the proceedings, attaching evidence to the case, assigning appropriate expertise, etc.
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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