Commentary to article 759. Prosecutor The Code of the Republic of Kazakhstan on Administrative Offences
1. The supreme supervision over the observance of legality in the process of proceedings on administrative offenses on behalf of the state is carried out by the Prosecutor General of the Republic of Kazakhstan both directly and through subordinate prosecutors.
In exercising his procedural powers, the prosecutor is independent and obeys only the law.
2. In order to exercise his powers provided for in Article 760 of this Code, the prosecutor has the right: to participate in the proceedings on administrative offenses; to present evidence and participate in their study; to present to the court, the body (official) considering the case, his opinion on the guilt of the person against whom proceedings on an administrative offense are being conducted, as well as on other issues arising during the consideration of the case.; to make a proposal to the court, body (official) considering the case on the application of the provisions of the law and the imposition of an administrative penalty or exemption from it.
3. The prosecutor must be notified of the place and time of consideration of the case of an administrative offense committed by a minor, as well as an offense entailing administrative arrest, administrative expulsion of a foreigner or a stateless person from the Republic of Kazakhstan. In his absence, such a case may be considered only in cases where there is evidence of timely notification by the prosecutor of the place and time of the case and if he has not received a motion to postpone the case.
comment____________________________________________
Part 1. In accordance with Article 1 of the Law of the Republic of Kazakhstan dated June 30, 2017 "On the Prosecutor's Office", the Prosecutor's office, on behalf of the State, carries out, within the limits and forms established by law, supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan, represents the interests of the state in court and carries out criminal prosecution on behalf of the State.
The unified system of the Prosecutor's Office of the Republic of Kazakhstan is formed by the Prosecutor General's Office, the prosecutor's offices of regions and equivalent to them (the prosecutor's offices of cities of republican significance and the capital of the Republic of Kazakhstan, the main military and transport prosecutor's offices), district and equivalent urban, inter-district, as well as specialized prosecutor's offices (military, environmental, transport, prosecutor's offices of special facilities).
The supreme supervision over the observance of legality in the process of proceedings on administrative offenses on behalf of the State is carried out by the Prosecutor General of the Republic of Kazakhstan both directly and through subordinate prosecutors. Since the introduction of the latest amendments to the Constitution of the Republic of Kazakhstan (to article 83), the role of the Prosecutor's Office in criminal procedure and administrative-tort proceedings should be significantly strengthened, as this should become the main focus of their attention.
The Prosecutor is independent in the exercise of his procedural powers and is subject only to the law. Any form of influence on the prosecutor in order to prevent him from exercising his powers or making an illegal decision entails liability established by law.
Part 2. The powers of the prosecutor are the range of rights and duties with which he is endowed to oversee the implementation of laws and the legality of issued legal acts. With the help of powers, the prosecutor identifies, eliminates and prevents violations of the law, identifies the causes of offenses and the conditions that contribute to them, and also brings to justice those who committed these violations.
In order to exercise his powers under Article 760 of the Administrative Code, the prosecutor is endowed with the following procedural rights:
- participate in proceedings on administrative offenses (to be present at the initiation of an administrative offense case, its consideration, as well as to supervise the execution of the resolution adopted in the case);
- present evidence and participate in their research;
- to state to the court, the body (official) considering the case, his opinion on the guilt of the person against whom proceedings are being conducted in the case of an administrative offense, as well as on other issues arising during the consideration of the case.;
- to make a proposal to the court, body (official) considering the case on the application of the provisions of the law and the imposition of an administrative penalty or exemption from it (in case of disagreement with the court's decision in the case of an administrative offense due to its inconsistency with the law or unreasonableness, the prosecutor has the right to file a protest in order to review the case and cancel or amend the legal act to a higher court).
The prosecutor also has the right to request a postponement of the consideration of an administrative offense case if circumstances arise that prevent him from participating in the consideration of the case.
These procedural rights allow the prosecutor to properly exercise his powers during administrative proceedings and to exercise the most effective supervision over the legality of decisions taken by officials in the case, as well as to help eliminate significant violations of the rights of participants in the proceedings on an administrative offense.
Since the authorities and officials who drew up the protocol on administrative offenses are not participants in the proceedings on administrative offenses, they do not have the right to appeal the decisions made in the case. In these circumstances, the importance of the prosecutor increases as an entity with the right to protest against a ruling on an administrative offense, regardless of participation in the case.
Part 3. As mentioned above, the prosecutor's participation in the consideration of an administrative offense case is his right, not his duty. Based on this, it can be said that the participation of the prosecutor in the consideration of the case is not always mandatory, i.e. an administrative case can be considered by a court or an official without the presence of the prosecutor.
However, part 3 of the commented article provides for cases of mandatory early notification of the prosecutor about the upcoming consideration of an administrative offense case. Such notification of the prosecutor is mandatory when considering an administrative case against a person who had not reached the age of 18 at the time of the commission of the offense, as well as if the Administrative Code provides for the imposition of an administrative penalty in the form of administrative arrest and expulsion of a foreigner or stateless person from the Republic of Kazakhstan. When considering these categories of administrative cases, the prosecutor's absence is possible only if he was promptly notified of the place and time of consideration of the case of an administrative offense, and after notification, he did not receive a request to postpone the case.
The above cases of mandatory notification of the prosecutor about the upcoming consideration of an administrative case are exhaustive, and, accordingly, in all other cases of consideration of cases of administrative offenses, notification of the prosecutor by the court or the body reviewing the case is not mandatory.
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
