Commentary to article 752. Powers of the defender  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. The defender has the right: to get acquainted with all the case materials; to participate in the consideration of the case; to present evidence; to file petitions and challenges; with the permission of the judge, the body (official) authorized to consider the case, to ask questions to the persons interviewed during the consideration of the case; to appeal the application of measures to ensure the proceedings and the decision on the case; to use other rights granted to him by law.

     2. The defender has no right to: commit any actions against the interests of the client and interfere with the exercise of his rights; contrary to the position of the client, admit his involvement in an administrative offense and guilt in its commission, declare reconciliation of the client with the victim; withdraw complaints and petitions filed by the client; disclose information that became known to him in connection with the appeal for legal assistance and its implementation.

     The defender, participating in the proceedings on an administrative offense, pursues the achievement of the following goals:

     - to identify the circumstances justifying the person against whom proceedings are being conducted on an administrative offense, or mitigating his responsibility;

     - to provide the person being held administratively liable with the necessary legal assistance, thereby contributing to making the most favorable procedural decision on the case.  

     The tasks of the defender to achieve these goals are:

     - working out a position and a defense plan together with your client;

     - determination of methods and means of protection, i.e. those procedural actions that need to be performed, and those proofs that need to be found, presented for inclusion in the case and investigated. To do this, the law gives the defender broad procedural powers.

     In accordance with part 1 of the commented article, the defender, participating in the proceedings on an administrative offense, has the right:

     1) in accordance with the procedure established by law, get acquainted with all the materials of the administrative offense case at all stages of the administrative process;

     2) together with his client, participate in the consideration of the case of an administrative offense, as well as be present at the preparation of the protocol on an administrative offense;

     3) to present, during the consideration of the case of an administrative offense, evidence attesting to the innocence of the person being held administratively liable, or mitigating his responsibility (such evidence may include objects, documents, explanations of persons, expert opinions, etc.);

     4) file petitions and challenges (for example, petitions to summon persons to the case for questioning, to attach any evidence to the administrative case, or to request that any participants in the administrative process be disqualified from participating in the case);

     5) with the permission of the judge, the body (official) authorized to consider the case, to ask questions to the persons interviewed during the consideration of the case, the answers to which may contain information confirming the innocence of the person being held accountable for the offense committed or the presence in the actions of this person of signs mitigating administrative responsibility.;

     6) appeal, in accordance with the procedure established by law, the application of measures to ensure the proceedings against the person being held administratively liable, as well as the decision of the court or body (official) issued as a result of consideration of the case of an administrative offense.;

     7) enjoy other rights granted to him by the legislation of the Republic of Kazakhstan (the rights of a lawyer in defending a person brought to administrative responsibility are regulated not only by Part 1 of the commented article, but also by the norms of the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal Assistance").

     Part 2 of the commented article contains a list of actions of the defender, the implementation of which may significantly violate the rights of the defendant. If these actions are committed, the defender may be replaced by another defender, and if there are signs of an offense in his actions, he may be held accountable as prescribed by law.  

     The activity of the defender must be exculpatory in relation to the defendant. The defender is prohibited from establishing and presenting evidence indicating the defendant's involvement in the committed offense and his guilt in the deed, to declare reconciliation between the defendant and the victim, to withdraw complaints and petitions filed by the defendant.  

     A defense lawyer involved in the proceedings on an administrative offense is warned in advance about the inadmissibility of disclosing information that will become known to him in connection with the provision of legal assistance to a person, about which a subscription is withdrawn from him.

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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