Commentary to article 829-14. Decisions taken based on the results of consideration of an administrative offense case, complaint, protest against a decision on an administrative offense case, an order on the need to pay a fine, a decision of a higher authority (official) on the complaint, protest  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Having considered the case of an administrative offense, complaint, protest, the court issues one of the following decisions on:

     1) imposition of an administrative penalty;

     2) termination of the proceedings on the case;

     3) leaving the resolution or regulation unchanged, and the complaint or protest without satisfaction;

     4) amendment of the resolution;

     5) cancellation of the resolution, instruction and termination of the case;

     6) the cancellation of the resolution, the prescription and the issuance of a new ruling on the case.

     2. The decision provided for in this article must be lawful and justified.

     If, when deciding whether to impose a penalty for an administrative offense, a judge simultaneously decides whether to compensate the guilty for property damage, then the decision shall specify the amount of damage to be recovered, the term and procedure for its compensation.

     A court decision on the expulsion of a foreigner or stateless person from the Republic of Kazakhstan shall enter into force from the date of its issuance and shall serve as the basis for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan. It also specifies the period during which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan.

     3. The resolution must specify the information, as well as resolve the issues provided for in Article 822 of this Code.

     4. Having recognized, as a result of consideration of the case, complaint, protest, an incorrect legal assessment of the deed, the court is obliged to change the qualification of the offense to an article of the law providing for a less severe administrative penalty.

     5. When the driver of a vehicle is sent to take an exam to test his knowledge of the rules of the road, a resolution is issued on the direction to test his knowledge of the rules of the road, a copy of which is issued to the person sent to take the exam.

     6. When the owner and (or) user of civilian and service weapons is sent to take an exam to test their knowledge of the rules for safe handling of weapons, a resolution is issued to send them to test their knowledge of the rules for safe handling of weapons, a copy of which is issued to the person sent to take the exam.

     7. A decision to terminate the proceedings in a case shall be issued in the following cases::

     1) the existence of circumstances precluding the proceedings in the case provided for in Article 741 of this Code;

     2) the existence of circumstances that make it possible not to bring to administrative responsibility provided for in Article 742 of this Code;

     3) transfer of the case file to the relevant authorities to resolve the issue of bringing a person to disciplinary responsibility in accordance with Article 32 of this Code.

     8. A decision issued based on the results of consideration of a case, complaint, or protest shall be drawn up in writing and signed by the judge who issued such a decision, or in the form of an electronic document certified by the electronic digital signature of the judge who issued such a decision.

     Part 1. As a result of the consideration of an administrative offense case, complaint, protest, the judge makes one of the decisions provided for in the commented article on:

     1) the imposition of an administrative penalty. This decision is one of the main ones and is possible only as a result of an affirmative answer to a number of questions set out in articles of Chapter 44-1 of the Administrative Code.;  

     2) termination of the proceedings. If the circumstances provided for in Article 741 are established, the court is obliged, and in Article 742 of the Administrative Code, the court has the right to terminate the proceedings.;

     3) leaving the resolution or regulation unchanged, and the complaint or protest without satisfaction. The decision in the case of an administrative offense is left unchanged, and the complaint or protest is not satisfied if: the arguments set out in the complaint are not able to cast doubt on the decision; the arguments contained in the complaint or protest are in conflict with the evidence that has not been refuted in the case of an administrative offense; when considering the complaint, the protest is not found grounds for revocation or amendment of the resolution;

     4) amendment of the resolution. Unlike the protest and complaint of the victim, upon the complaint of the person brought to administrative responsibility, the decision in the case of an administrative offense can be changed only in favor of the person against whom the decision was made.  

     This follows directly from part 4 of the commented article. The judge has the right to change the measure of punishment within the limits provided for by the Administrative Code, taking into account the nature of the offense committed, the identity of the offender, the degree of his guilt, property status, circumstances mitigating responsibility.

     The inadmissibility of increasing the administrative penalty, both in matters of changing the sanction and re-qualification of the act, means that the judge does not have the right to increase the amount of the penalty, even if it is imposed in clear violation of the requirements of the Administrative Code. He also has no right to replace the type of penalty with a more severe one or apply an additional type of penalty if it has not been imposed.

     5) cancellation of the resolution, instruction and termination of the case. Such a decision is made if there are grounds listed in Chapter 8 of the Administrative Code "Exemption from administrative liability and administrative penalty" or if there is at least one of the circumstances precluding the proceedings (Part 1 of Article 741 of the Administrative Code). It requires the introduction into practice of the direct application of Part 2 of Article 741 of the Administrative Code, according to which proceedings on an administrative offense are terminated on the grounds provided for in paragraphs 1) and 2) of Part 1 of this article, both if the absence of an administrative offense event or the composition of an administrative offense is proven, and if their presence is not proven, if all possibilities for collecting additional evidence have been exhausted, as well as in cases where harm is lawful or the act was committed under circumstances that, in accordance with Chapter 5 of the Code, exclude administrative liability..

     Circumstances that are not supported by the evidence examined in the proceedings should be considered unproven.; contradictory evidence that is essential to the judge's conclusions, unless the ruling or injunction indicates on what grounds some of the judge's conclusions were accepted and rejected, containing significant contradictions that influenced or could have influenced the decision on the guilt or innocence of the person being investigated for an administrative offense, or the correctness of the application. the norms of the Administrative Code or to determine the type and amount of an administrative penalty.

     The listed grounds are usually related to violations such as incomplete administrative investigations and reviews. An administrative investigation or consideration of an administrative offense case is considered incomplete, during which all possible means of proof were not used, some evidence was not checked with the help of others: explanations were not taken from persons whose testimony is essential to the case; documents or material evidence of significant importance were not requested, etc.

     The cancellation of a resolution or instruction with the termination of an administrative offense case entails the return of seized and confiscated items and funds, as well as the lifting of other restrictions related to the previously adopted resolution or instruction.;

     6) the cancellation of the resolution, the prescription and the issuance of a new ruling on the case. All comments on the previous grounds apply to this type of decision.  

     At the same time, I would like to note that the legislator does not mention as an independent possibility the return of the case for a new examination. This is one of the most effective and correct steps in the latest reform of the Administrative Code. Such cases should not be sent for new consideration due to a large number of reasons based both on the purpose of the appellate instance and the specifics of administrative cases.

     Part 2 forms the basic requirement for such final decisions by all procedural legislative acts – decisions must be lawful and justified. The legislator does not mention "motivated." Rather, the reasons lie in the unwillingness to burden the analysis and bringing rejected arguments to the decision, listing the reasons for that. However, in the future, in the order of improvement, special attention should be paid to this.

     In addition, in accordance with part eight of the commented article, a decision made based on the results of consideration of a case, complaint, or protest is drawn up in writing and signed by the judge who issued such a decision. In addition, such a decision may be issued in the form of an electronic document certified by an electronic digital signature of the judge who issued such a decision in accordance with the requirements of the Law of the Republic of Kazakhstan dated January 7, 2003 "On Electronic Document and Electronic Digital Signature".

     If, when deciding whether to impose a penalty for an administrative offense, the judge simultaneously decides whether to compensate the guilty for property damage, then the decision shall specify the amount of damage to be recovered, the term and procedure for its compensation.

Special mention should be made of the rules for the entry into force of a court order on the expulsion of a foreigner or stateless person from the Republic of Kazakhstan. It comes into force immediately (from the date of its issuance) and serves as the basis for the expulsion of a foreigner or stateless person from the Republic of Kazakhstan. It also specifies the period during which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan. It should also be mentioned here that in this article the legislator gives a period in the form of a "day" that is not typical of the Procedural part of the Administrative Code, while time periods calculated in days are often used.

     Part 3 prescribes in the resolution to indicate information and resolve issues provided for in art. 822 of the Code. Comment on them in the appropriate section.

     Part 4 clarifies the meaning of the legal qualification by the authorized body of the offender's act if the court does not agree with it. In accordance with this rule, if the court finds that the legal assessment of the deed is incorrect, it is obliged to change the qualification of the offense to an article of the law providing for a less severe administrative penalty. However, in the opposite direction, this norm works only in chapter 45 of the Administrative Code, and already in the form of not an obligation, but the right of the court to change the qualification to an article of the law providing for a more severe administrative penalty, and only on condition that the victim or prosecutor requests this in his complaint in the appeal petition. These restrictions were introduced by the legislator as a guarantee of the proper implementation of the principle of presumption of innocence. For this stage of the proceedings on an administrative offense, it is important to remember that when the court of first instance considers an administrative offense case or a complaint against a decision of an authorized body, the court does not have the right to change the legal qualification of the offender's act to an article of the law providing for a more severe administrative penalty, even if the victim and the prosecutor have requested it.

     Parts 5 and 6. Simultaneously with the decision on the case, complaint, protest, the court has the right (art. 3 of the Administrative Code) to decide on the direction of the driver of the vehicle who committed the offense provided for in Articles 594 (part four), 596 (part four), 598 (part three), 599 (part two), 600 (part two) Administrative Code, to take an exam to test your knowledge of traffic rules. The same applies to testing knowledge of the rules of safe handling of weapons (Article 53-1). Owners and users of civilian and service weapons who have committed offenses under Part 1 of Article 436, Part 1 of Article 484, part 1 of Article 485 and Part 1 of Article 486 of the Administrative Code are sent to take an exam to verify knowledge of the rules of safe handling of weapons. Unlike drivers, the legislator used an imperative way of constructing the disposition of Articles 53-1 of the Administrative Code for owners and users of civilian and service weapons.  

     In all these cases, an appropriate resolution is issued.

     In accordance with Part 7, the court is additionally ordered (in addition to the repeatedly stated above) to issue a decision on termination of proceedings in the following cases::

     1) the existence of circumstances precluding the proceedings provided for in art. 741 of the Administrative Code;

     2) the existence of circumstances that make it possible not to bring to administrative responsibility provided for in art. 742 of the Administrative Code;

     3) transfer of case materials to the relevant authorities to resolve the issue of bringing a person to disciplinary responsibility in accordance with art. 32 of the Code. These provisions have been commented on several times before, and therefore there is no need to comment on them again (comments to articles 32, 741, 742, 829-6, 829-11, 829-14 and others).

     A common mistake is the cancellation by courts of decisions of the authorized body issued with gross procedural violations and the simultaneous termination of an administrative offense case without proper investigation of the presence or absence of circumstances provided for in Articles 741 and 742 of the Administrative Code. If, under the circumstances described, the court comes to the conclusion that the offense was committed by the person in respect of whom the protocol was left, then the decision of the authorized body is subject to cancellation with the issuance of a new decision on the imposition of an administrative penalty.

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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