Commentary to article 9. Equality before the law and the court The Code of the Republic of Kazakhstan on Administrative Offences
In the course of proceedings on administrative offences, everyone is equal before the law and the court. No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances.
The legal provisions of the article in question implement the constitutional principle set out in Article 14 of the Constitution, which states that "Everyone is equal before the law and the court. No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances." Thus, this principle is constitutional.
Discrimination can be described as a negative attitude, bias, injustice, and deprivation of certain rights of people because they belong to a different social group. However, the content of the definition depends on the act and the context in which it is used. This is due to the fact that the legislator has given this term different editorial content in different legislative acts. But its ideological content remains unshakable and consists in limiting rights and interests depending on circumstances unrelated to certain qualities.
The observance of the principle of equality of citizens (including legal entities, regardless of the form of ownership) of Kazakhstan before the law complies with many international treaties and convention documents. For example, the Law of the Republic of Kazakhstan dated November 28, 2005 "On ratification of the International Covenant on Civil and Political Rights". Article 26 of this Law states that all people are equal before the law and have the right, without any discrimination, to equal protection of the law. In this regard, any kind of discrimination should be prohibited by law, and the law should guarantee all persons equal and effective protection against discrimination based on any ground, such as race, skin color, gender, language, religion, political or other beliefs, national or social origin, property status, birth or other circumstances."
According to the Law of the Republic of Kazakhstan dated December 8, 2009 No. 223 "On State guarantees of equal rights and equal opportunities for men and women", discrimination on the basis of gender is prohibited in Kazakhstan, which is any restriction or infringement of human rights and freedoms, as well as belittling of dignity on the basis of gender.
The modern state policy of Kazakhstan, aimed at achieving equality between women and men in society, is aimed at overcoming all forms and manifestations of gender discrimination, creating political prerequisites and necessary social conditions for the fullest realization of the abilities of women and men in all spheres of work, public and personal life.
In order to ensure gender equality when bringing to administrative responsibility, the Law of the Republic of Kazakhstan dated December 28, 2017 "On Amendments and Additions to the Code of Administrative Offences of the Republic of Kazakhstan" amended Part 2 of Article 50 of the Administrative Code. Previously, women with children under the age of fourteen were not subject to administrative arrest, but now this rule has been supplemented with a new category - men who raise children under the age of fourteen alone.
Based on Part 1 of Article 738 of the Administrative Code, proceedings on administrative offenses in the Republic of Kazakhstan are conducted in the official language, and if necessary, Russian or other languages are used in the proceedings along with the state language. According to Article 6 of the Law of the Republic of Kazakhstan dated July 11, 1997 "On Languages in the Republic of Kazakhstan", the state provides for the care of languages. Every citizen of the Republic of Kazakhstan has the right to use his native language, to freely choose the language of communication, upbringing, education and creativity.
Violation of the principle of "equality" on linguistic grounds is subject to administrative liability under Article 75 of the Administrative Code with qualifying grounds.:
1) refusal of an official to accept documents, appeals from individuals and legal entities;
2) non-examination of documents, appeals of individuals and legal entities on the merits, motivated by ignorance of the language;
3) restriction of the rights of individuals to choose a language, discrimination on linguistic grounds.
The principle of equality of people before the law prohibits discrimination based on religion and beliefs. Based on article 2 of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief, no one should be discriminated against on the basis of religion or belief by any State, institution, group of persons or individuals.
The Law of the Republic of Kazakhstan dated October 11, 2011 "On Religious Activities and religious Associations" prohibits the establishment of any religion as a state or compulsory one. Religious associations and citizens of the Republic of Kazakhstan, foreigners and stateless persons, regardless of their attitude to religion, are equal before the law.
But in some cases, the principle of "equality" may be violated when bringing offenders to administrative responsibility.
Due to the official position of offenders, the Administrative Code provides for the specifics of bringing special entities to administrative responsibility, based on art. 32 of the Administrative Code and Chapter 49 of the Administrative Code in relation to persons with privileges and immunity from administrative responsibility.
But this does not mean that the principle of equality is violated here, since they are the subjects of an administrative offense, but in cases provided for by law, they are held administratively liable, that is, to disciplinary responsibility.
Foreign persons who are immune from administrative liability, in accordance with an international treaty of the Republic of Kazakhstan, may be held administratively liable only if the foreign State provides a clear waiver of immunity from administrative liability. The issue of such refusal is resolved by the submission of the Prosecutor General of the Republic of Kazakhstan through the Ministry of Foreign Affairs of the Republic of Kazakhstan through diplomatic channels. In the absence of a waiver by the relevant foreign State of the immunity of these persons, administrative proceedings against them cannot be initiated, and those initiated are subject to termination (art. 876 of the Administrative Code).
The social status of citizens is the status of people determined by their position, economic level (financial capabilities), gender, disability, retirement age, and the mental state of a participant in an administrative offense case. This factor is also reflected in the specifics of bringing such subjects of an administrative offense to administrative responsibility.
The principle of equality before the law and the court applies not only to individuals, but also to legal entities, and not only at the stage of involving relevant persons, but also when applying procedural measures to ensure proceedings in cases of administrative offenses.
Due to financial opportunities, legal entities that are subjects of small, medium or large businesses are subject to different amounts of administrative fines for the same illegal act. And minors between the ages of 16 and 18 who do not have an independent source of livelihood, being the subject of an administrative offense, are not recognized as subjects of administrative responsibility. Instead, parents or persons replacing them are usually brought to administrative responsibility (Article 66 of the Administrative Code).
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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