Commentary to article 803. Protocol on an administrative offense The Code of the Republic of Kazakhstan on Administrative Offences
1. A protocol on an administrative offense shall be drawn up in writing by an authorized official, with the exception of the cases provided for in Article 807 of this Code. Along with the written form, the electronic form of the protocol on an administrative offense may be used.
2. The protocol on an administrative offense states:
1) date and place of drawing up the protocol;
2) the position, surname and initials of the person who drew up the protocol;
3) information about the person against whom the case has been initiated (for individuals – surname, first name, patronymic (if any), date of birth, place of residence, name and details of the identity document, identification number, place of work, telephone, fax, cellular telephone number and (or) electronic address (if any); for legal entities – name, location, number and date of state registration (re-registration) of the legal entity, identification number and bank details, telephone, fax, cellular telephone number and (or) e-mail address (if any);
4) the place, time and nature of the administrative offense;
5) an article of the Special Part of Section 2 of this Code providing for administrative liability for this offense; surnames, first names, patronymics (if any), addresses of witnesses and victims, if any;
6) an explanation by an individual or a representative of a legal entity against whom a case has been initiated; name, number, date of metrological verification, indications of a technical means, if it was used to clarify and fix an administrative offense;
7) other information necessary for the resolution of the case, including the time and place of consideration of the case of an administrative offense, as well as documents confirming the commission of an administrative offense.
3. When drawing up a protocol on an administrative offense, the language of the proceedings is determined. The person against whom the case has been initiated, as well as other participants in the proceedings in the case, shall be informed of their rights and obligations provided for in this Code, as indicated in the protocol.
When drawing up a protocol on an administrative offense, the defender or the legal representative of a minor against whom proceedings on an administrative offense are being conducted is explained their right to apply for the transfer of the case to a specialized administrative court, and in the absence of a specialized administrative court in the territory of the relevant administrative-territorial unit – to the district (city) court..
4. The protocol on an administrative offense shall be signed by the person who drafted it and the person (representative of the person) against whom proceedings on the case of an administrative offense are being conducted, with the exception of the cases provided for in this article. In the presence of victims and witnesses, as well as in cases of witness participation, the protocol is also signed by these persons.
5. In case of absence or non-appearance of a duly notified person against whom a case has been initiated, the protocol on an administrative offense is signed by the person who drafted it, with a note in it about the absence or non-appearance of the person against whom the case has been initiated.
6. In case of refusal to accept, against receipt, the protocol on the case of an administrative offense by the person against whom the case of an administrative offense has been initiated, an appropriate entry is made in the protocol by the person who drafted it.
7. An individual or a representative of a legal entity against whom a case has been initiated should be given the opportunity to review the protocol on an administrative offense. These persons have the right to provide explanations and comments on the content of the protocol, as well as to state the reasons for their refusal to sign it, which are attached to the protocol. If these persons refuse to sign the protocol on an administrative offense, a corresponding entry is made in it. The fact that the protocol was signed by the person against whom the case was initiated indicates that this person has become familiar with the protocol and does not constitute an admission of his guilt in committing an administrative offense.
8. To an individual or a representative of a legal entity against whom a case has been initiated, as well as to the victim, a copy of the protocol on an administrative offense shall be handed over against receipt immediately after it is drawn up, with the exception of the cases provided for in part nine of this article.
When drawing up the protocol in electronic form, the authorized person informs the participants of the proceedings on the case about its placement on the web portal of the "electronic government" and (or) the information service of the authorized body in the field of legal statistics and special accounting. At the request of the person (representative of the person) against whom proceedings on an administrative offense are being conducted, a copy of the protocol shall be submitted immediately by delivery on paper or by sending to the postal or e-mail address indicated by him, as well as in any other way provided for by the procedure for maintaining the Unified Register of Administrative Proceedings.
9. A protocol on an administrative offense in cases where it is drawn up in the absence of the person against whom the case has been initiated on the grounds provided for in subparagraph 4) the first part of Article 802 of this Code, as well as the fifth part of this Article, shall be sent by registered mail within two days after its compilation, notifying the person against whom the case has been initiated, or in the form of an electronic document certified with an electronic digital signature. The fact of non-return of the protocol within three days from the date of receipt by the person against whom the case was initiated is recognized as a refusal to sign it, which is recorded in a copy of the protocol.
The protocol on an administrative offense is one of the procedural documents that serve as the basis for initiating proceedings on an administrative offense. This is explicitly stated in Part 4 of Article 802 of the Administrative Code.
Administrative legislation (CAO) is designed in such a way that in order to establish the existence of administrative procedural legal relations (in our case, the stage of initiation of an administrative case), appropriate reasons and grounds are needed, as prescribed by art. 802 of the CAO. It is the protocol that is the procedural document that states their presence and, as a result, the fact of the commission of the relevant violation is established.
However, another feature of the protocol on an administrative offense is that, unlike the criminal procedure legislation, it is the main and only act aggregating charges against a person who has committed an administrative offense.
Despite the fact that the Administrative Code does not know such a term as "accusation", Article 803 states that the protocol specifies, among other things, the essence of the administrative offense, the article of the Special Part of Section 2 of the Administrative Code, which provides for administrative liability for this offense, and other information necessary to resolve the case (including circumstances mitigating and aggravating responsibility), as well as documents confirming the fact of an administrative offense. This is a kind of analogue of criminal procedure charges, which the theory of law understands as procedural activities carried out by authorized bodies and officials (see Article 804 of the Administrative Code) in order to establish an act prohibited by law and the person who committed it, the guilt of the latter in committing an offense, as well as to ensure the application of penalties or other penalties to such a person. impact measures.
Only the authorized bodies and officials specified in the law are authorized to draw up a protocol, form the subject and limits of evidence, as well as carry out this proof. No other state body, no other officials, except for the bodies and officials specified in the Administrative Code, carry out evidence of circumstances relevant to the proper consideration of an administrative case. The engine of proof, its instrument, is, first of all, evidence. It is the evidence obtained in the process of proving that ensures the movement of the case from one stage to another of the proceedings or restricts this movement, making it impossible to continue. According to the logic of Article 803 of the Administrative Code, they should be attached to the protocol.
As a result, the legislator requires (part 7 of the commented article) that the person in respect of whom the protocol has been drawn up be familiar with its contents, which acts as a kind of procedural guarantee and contributes to the realization of the right of a person who has committed an administrative offense to protection.
As a general rule, when considering a case, in accordance with Articles 829-10 of the Administrative Code, the legality and validity of the initiation of an administrative offense case, and, consequently, the protocol, are checked. And despite the fact that the court is not connected with the arguments and circumstances of the case, checks the case in full and has the right to establish new facts, investigate new evidence, however, it does not have the right to substitute its activities for the activities of authorized bodies (officials), on whom the Administrative Code imposed their own functions of drawing up a protocol, forming a subject and the limits of proof, as well as the exercise of proof.
In this sense, the Administrative Code requires further improvement. For its uniform understanding, it would be advisable to include provisions in it that the case is being considered only in respect of the person against whom administrative proceedings have been initiated and only within the limits of the article and part of the article of the Special Part of Section 2 of the Administrative Code on which this administrative case was initiated. And also that a change in qualifications at the stage of consideration of a case is allowed provided that this does not violate the right of the person being held administratively liable to protection, that is, in favor of the person who committed the administrative offense. At the same time, the body considering the case, including the court, does not have the right to collect additional evidence in order to eliminate the incompleteness of the administrative investigation.
In addition to the above, this approach brings administrative practice closer to constitutional principles: "any doubts about the guilt of a person are interpreted in favor of the accused" (Article 77 of the Constitution), as well as "everyone has the right to judicial protection" (Article 13 of the Constitution).
Part 1 of the commented article defines that the protocol on an administrative offense is drawn up in writing. The protocol is drawn up by authorized officials defined by Article 804 of the Administrative Code "Officials authorized to draw up protocols on administrative offenses", certain officials are established for each sphere of legal relations.
The protocol on an administrative offense has a specific form, which is approved by the head of the body. For example, the protocol on an administrative offense, drawn up according to articles subordinate to the internal affairs bodies, was approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan No. 713 dated December 13, 2013. The Protocol on an administrative offense in the field of forest legislation was approved by Order No. 359 of the Deputy Prime Minister of the Republic of Kazakhstan - Minister of Agriculture of the Republic of Kazakhstan dated August 28, 2017.
As a rule, protocols on administrative offenses are printed on special letterheads and have a single numbering to accurately account for the expense of protocols. Protocol forms refer to strict reporting documents. Any protocol on an administrative offense must contain the information specified in part 2 of the commented article.
The legislator has identified 5 cases when a protocol on an administrative offense is not drawn up (Article 807 of the Administrative Code):
1) in cases of an administrative offense involving the imposition of an administrative penalty in the form of a warning, if the person has acknowledged the fact of the offense;
2) if an administrative offense is recorded by certified special control and measuring equipment and devices operating in automatic mode, the fine is issued in the form of an instruction on the need to pay a fine.;
3) when committing administrative offenses, cases on which are considered by the state revenue authorities, if the person has admitted the fact of committing an administrative offense and agrees with the imposition of penalties, as well as paid a fine in accordance with art. 897 of the Administrative Code;
4) when individuals apply for the restoration of violated rights, cases of administrative offenses provided for in articles 74, 75, 76, 78, 81, 82, 82-1, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 92-1,93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 126, 128, 130, 132 and 456-1 of the Code, are considered by the court without drawing up a protocol on the offense;
5) if proceedings on an administrative offense have been initiated by a decision of the prosecutor and if the judge (court) has established the fact of contempt of court directly during the court's consideration in cases provided for in Part 3 of Article 684 of the Administrative Code.
It is also specified in this part that the protocol on an administrative offense can be drawn up in electronic form. This provision appeared in the new Administrative Code and is now used in law enforcement practice by police officers. The protocol can be drawn up by an authorized official on a tablet, using a special program, this program is linked to the databases of law enforcement agencies, which greatly facilitates and speeds up the work on filling out the protocol. The protocol is signed by an official with an electronic digital signature and the offender using a special device for working with tablets - a stylus. Together with the electronic protocol, a paper version of the protocol can be kept, which remains with the driver.
Part 2 of the covered article defines what information should be reflected in the protocol on an administrative offense. Since the protocol on an administrative offense is an important procedural document, and often the main one for bringing to administrative responsibility, the correctness of its completion is extremely important.
Paragraph 1 - indicates the place and exact time of drawing up the protocol, this is important for calculating deadlines, for appealing the protocol, as well as for determining where the protocol was drawn up: at the scene of the incident or in another place.;
Item 2 - information about the official who drew up the protocol. The position is important here, since Chapter 36 of the Administrative Code delineates the jurisdiction of administrative matters.;
paragraph 3 - for individuals - passport data for the person against whom the case has been initiated, they are filled in on the basis of an identity document, in case of its absence - according to the databases of law enforcement agencies, as well as the place of work, study, phone number and email address according to this person; for legal entities – the name, location, number and date of state registration (re-registration) of the legal entity, identification number and bank details, address and other data;
Paragraph 4 - the protocol on an administrative offense records the place, time and event of the administrative offense. Fixing the place of commission of an offense is necessary, since, as a general rule, an administrative offense case is considered at the place of its commission. An indication of the time of the commission of the offense is important due to the fact that a decision on an administrative offense case can be issued no later than two months (in some cases, no later than one year) from the date of the commission of the offense. A detailed description of the event of the committed offense is necessary for its correct qualification, i.e. the definition of the article of the Special Part of the Code, which provides for administrative responsibility for such actions (inaction).;
paragraph 5 – indicates the article of the Special Part of the Administrative Code, which qualifies this offense, as well as information about witnesses and victims.;
Paragraph 6 – the protocol provides a column for the explanation of an individual on the merits of the case. Explanations are often given on a separate sheet, and a note about this is made in the protocol. There is no separate form for giving explanations in the protocol, it is provided by the person and is attached to the case of an administrative offense. If an administrative offense is detected or fixed by technical means, the name of the means, its number and the date of metrological verification are indicated. In accordance with Part 1 of art . 19 of the Law of the Republic of Kazakhstan "On ensuring the Uniformity of measurements" - measuring instruments used in the field of state metrological control are subject to verification upon release from production or repair, operation and import after their type approval or metrological certification and registration in the register of the state system for ensuring the uniformity of measurements. Verification is carried out by the state metrological service, as well as by the metrological services of legal entities accredited for this type of activity.;
Item 7 – other relevant information is indicated. The time and place of consideration of the case may also be set in the protocol, since not all articles of the person making up the protocol have the right to impose penalties. The protocol may be accompanied by documents confirming the fact of the commission of an offense (evidence base).
Part 3 of the article under study defines the language of administrative proceedings. Article 14 of the Law of the Republic of Kazakhstan "On Languages in the Republic of Kazakhstan" states: "Proceedings on administrative offences are conducted in the state language, and if necessary, in other languages." Proceedings on administrative offences are conducted in the language spoken by the person against whom proceedings have been initiated. An interpreter may participate in the preparation of the protocol at the request of the person against whom proceedings have been initiated.
The duty of the official who draws up the protocol on an administrative offense is to explain the rights and obligations to the participants in the proceedings provided for in Chapter 38 of the Administrative Code, a note is made in the protocol.
This part also obliges the official to explain to the defender or legal representative of the minor that if the authorized official does not want to consider the case, they have the right to file a petition for consideration of the case in a specialized administrative court or in a district (city) court.
Part 4 of the article stipulates that the protocol must be signed by the official who drew up the protocol and the person in respect of whom the proceedings are being conducted. There are exceptions to this rule, they are defined in part 5 of this article – the protocol is drawn up without a person, and accordingly, it is not signed if a duly notified person fails to appear about the place and time of the protocol.
The protocol must also be signed by other participants in the proceedings on an administrative offense – victims, witnesses, if any, and witnesses if they are involved.
Part 5 of the article under study defines in which cases an official draws up a protocol on an administrative offense without the person against whom proceedings have been initiated. The legislator refers to such cases as the absence or non-appearance of a duly notified person, and a corresponding entry is made in the protocol. In accordance with Part 4 of Article 743 of the Administrative Code, a notification (notice) is recognized as duly delivered in the following cases::
1) the presence of the signature of the person being held administratively liable in the appropriate column of the protocol on an administrative offense;
2) notices of a person by registered letter or telegram, which are delivered to him personally or to one of the adult family members living with him against a receipt for the delivery notification to be returned to the sender. A notification addressed to a legal entity is handed over to the head or employee of the legal entity, who signs the receipt of the notification on the delivery notification indicating his last name, initials and position.;
3) sending a text message to a cellular subscriber number or e-mail address, which the notified person indicated during the proceedings and confirmed with his signature;
4) sending a notification (notification) by the state revenue body electronically to persons registered as electronic taxpayers in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan.
Part 6 defines the actions of the official, in case of refusal of the person against whom the case is initiated, to accept the protocol against receipt.
Part 7. An important guarantee of the completeness and reliability of the information contained in the protocol on an administrative offense is that the individual and the legal representative of the legal entity against whom the case has been initiated should be given the opportunity to review the protocol. At the same time, these persons are entitled to submit their explanations and comments on the contents of the protocol, which are then attached to the protocol as case materials. In case of refusal to sign the protocol, the official makes a corresponding entry about it.
This part also stipulates that signing the protocol does not mean that the person against whom the protocol was drawn up admits his guilt. This only means that the person is familiar with the protocol.
Part 8. Given the importance of the protocol for the formation of the entire administrative case and its "judicial" perspective, the delivery of the protocol seems to be the foundation for the realization of a person's right to defense. Therefore, the legislator explicitly prescribes that a copy of the protocol on an administrative offense must be handed over against a receipt immediately after it is drawn up to the individual or representative of the legal entity against whom the case has been initiated and to the victim. The only exception is when such a protocol is drawn up in the absence of designated persons. This issue is regulated according to the rules of part 9 of the commented article.
Currently, electronic forms of document management are rapidly developing. Numerous information systems have been created following the example of the Judicial Cabinet of the Supreme Court of the Republic of Kazakhstan, EGOV, etc. In implementing the latest amendments to the Administrative Code, the Ministry of Internal Affairs is developing an electronic form of the protocol on an administrative offense, which is by its nature an electronic document.
An electronic document is a document in which information is presented in electronic and digital form and certified by means of an electronic digital signature.
An electronic digital signature is a set of electronic digital symbols created by means of an electronic digital signature and confirming the authenticity of an electronic document, its affiliation and the immutability of its content.
As a result, when drawing up the protocol in electronic form, the authorized person must inform the participants in the proceedings about its placement on the e-Government web portal and (or) the information service of the authorized body in the field of legal statistics and special accounting, the Unified Register of Administrative Proceedings. This is a single database of administrative proceedings that allows for online registration of protocols and payment of fines on the spot.
Due to the fact that the right of choice by the legislator is not excluded for such persons, they and their representatives have the right to demand the immediate provision (delivery) of a copy of the protocol by delivery on paper or sending it to the postal or e-mail address specified by them, as well as in any other way provided for by the procedure for maintaining the Unified Register of Administrative Proceedings.
Part 9 of the commented article regulates the cases of drawing up a protocol in the absence of the person against whom proceedings have been initiated, this protocol must be sent by registered mail with notification of the person or in the form of an electronic document within 2 days from the date of its compilation, for signing by this person. The legislator refers to such cases:
1) initiation of proceedings based on the indications of special automated measuring instruments, as well as certified special control and measuring equipment and monitoring devices, including those operating in automatic mode, and recording the commission of an administrative offense in the field of motor transport and road safety by photographing and videotaping the traffic situation, determining the speed and direction of movement of the vehicle means, actions of other road users;
2) in the event of the absence or non-appearance of a duly notified person against whom a case has been initiated, the protocol on an administrative offense shall be signed by the person who drafted it, with a note in it about the absence or non-appearance of the person against whom the case has been initiated.
If more than 3 days have passed since the receipt of the protocol by the person against whom the case has been initiated, and the said person has not sent the protocol back with his signature, the official must assume that the person refused to sign, a corresponding entry is made in a copy of the protocol, and the case can be sent to the jurisdiction for a decision.
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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