Comment to article 826-2. The procedure and time limits for appealing and protesting a decision in the case of an administrative offense, and prescribing the need to pay a fine The Code of the Republic of Kazakhstan on Administrative Offences
1. A complaint or protest against a ruling on an administrative offense, or an order on the need to pay a fine, shall be sent to the body (official) who issued the ruling on the case, who issued the order, who is obliged to send them with all the case materials to the appropriate body (official) within three days from the date of receipt of the complaint or protest. a higher authority (official).
A complaint or protest can be submitted directly to a higher authority (official) authorized to consider them.
2. A complaint or protest against a decision in an administrative offense case shall be filed within ten days from the date of delivery of a copy of the decision, and if the persons specified in Articles 744, 745, 746, 747, 748 and 753 of this Code did not participate in the consideration of the case, from the date of receipt of the decision.
A complaint or protest against an order to pay a fine may be filed within ten days after the expiration of the period provided for in Article 817 of this Code.
3. A complaint or protest against a decision in an administrative offense case made in connection with non-fulfillment or improper fulfillment of a tax obligation established by the Tax Code of the Republic of Kazakhstan, or obligations provided for by the legislation of the Republic of Kazakhstan on pension provision and compulsory social insurance, identified by the results of a tax audit, may be filed within thirty days. from the date of delivery or receipt of a copy of the resolution.
4. The filing of a complaint or protest within the time period established by this article suspends the execution of a decision on the imposition of an administrative penalty or an order on the need to pay a fine until a decision is made on the complaint or protest.
5. The complaint submitted to a higher authority (official) must contain information and comply with the requirements provided for in Article 833 of this Code.
If the complaint does not comply with the requirements provided for in parts one and two of Article 833 of this Code, it is considered filed, but is returned with an indication of the deadline for completion. If the complaint has not been submitted to the authority (official) within the specified period after being resubmitted, it is considered unsubstantiated.
The commented article regulates not only the procedure for appealing a decision on an administrative offense case, orders on the need to pay a fine, but also the timing of their submission.
Part 1. The establishment of a general procedure for filing a complaint through the body (official) that issued the resolution and issued the order is aimed at ensuring the rights of participants in the proceedings on an administrative offense. The assignment of some cases of administrative offenses to the jurisdiction of a higher authority (official) does not mean a reduction in the level of guarantees of the rights of persons held accountable. Persons brought to administrative responsibility by a decision of non-judicial authorities are provided with the same guarantees of respect for human and civil rights and freedoms.
The fact of filing a complaint obliges these persons to send it with all the case materials to the appropriate higher authority (official) within three days from the date of receipt of the complaint. This is a very progressive approach, typical of advanced procedural structures. Its essence lies in the fact that it creates a comfortable regime for a person. A small number of production participants are aware of the intricacies of building a bureaucratic apparatus, who and to whom is a higher authority or person, where it is located, etc.
The introduction of this provision into the legislation places all the burdens on the authorized body (official) who made the initial decision to which there is an objection. The person filing the complaint (protest) has the right to send it to the authorized body (official) who made such a decision. He, in turn, is obliged to send it to his jurisdiction within three days. At the same time, the legislator does not prohibit sending a complaint or protest directly to a higher authority (official).
It should be noted that the law does not specify whether the body (official) who issued the decision has the right, upon receiving a complaint (protest) against it, to independently "change" it without redirecting the complaint or protest within the allotted time. Here it is necessary to assume that in case of full satisfaction of the requirements of the complaint, protest, such a change is possible, since it corresponds to the basic principles of administrative law.
The second important feature, which was previously pointed out, is that the decision of a higher authority (official) is not an obstacle to going to court. This is a direct implementation of the constitutional provision stipulated in paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan.
The first paragraph of part 2 of this article regulates, in addition to the time limits for filing a complaint and bringing a protest, also an important indication of the starting point of the specified time limits: the moment of delivery and receipt of the resolution. Therefore, the provision of art. 743 of the Administrative Code is crucial in the interpretation of this article.
Thus, a complaint or protest against a decision in an administrative offense case is filed within 10 days from the date of delivery of a copy of the decision, and if the persons specified in Articles 744, 745, 746, 747, 748 and 753 of the Administrative Code did not participate in the consideration of the case, from the date of receipt of the decision.
If an order for the payment of a fine is appealed (protested), the complaint (protest) may be filed within ten days after the expiration of the period provided for in Article 817 of the Administrative Code, that is, from the expiration of fifteen days after the proper delivery of the order for the payment of a fine, unless, of course, the person has not paid the fine in accordance with Chapter 42 Administrative Code, and such a case is not considered to be considered on the merits in a reduced procedure.
In the case of the requirement to pay a fine, the legislator applied a rather complex frame of reference for the expiration of time limits for the production of procedural actions (the end of stages). Accordingly, these norms should be understood as follows. If, after proper delivery of the order on the need to pay a fine, the person has not appealed it in accordance with Chapter 44 of the Administrative Code and has not paid the fine in accordance with Chapter 42 of the Administrative Code, the case is considered to have been considered on its merits, and the order on the need to pay a fine acquires the status of a final decision on the case. From this moment, the 10-day period for its appeal (protest) begins to be calculated in accordance with art. 826-2 of the Administrative Code. It should be noted that this article does not repeatedly mention the need for proper delivery (receipt, delivery) of the order, as this is already provided for in Article 817 of the Administrative Code.
Part 3 of the commented article provides for the procedure for filing complaints and protests in cases of administrative offenses committed in the field of taxation, pension provision, and compulsory social insurance, identified by the results of a tax audit, which can be filed within 30 days from the date of delivery or receipt of a copy of the resolution.
This wording means that the general time limit (10 days) for filing a complaint or protest, established in Part 2 of the commented article for rulings on all other types of offenses, is not applicable to rulings on administrative offenses in the field of taxation, pension provision and compulsory social insurance.
This is due to the fact that the deadline for appealing the results of the tax audit itself, which is based on the detection of violations, is 30 working days according to tax legislation. And the cancellation of the results of the tax audit upon the complaint of interested parties may subsequently lead to the recognition of the missing facts of the event and the composition of the relevant offense. Therefore, the adoption of final decisions on the imposition of administrative penalties, taking into account the consideration of complaints about the decisions made, should not precede the final decision on the results of the consideration of complaints about the results of the tax audit, which served as the basis for the imposition of administrative penalties.
Part 4. The filing of a complaint or protest within the time period established by this article suspends the execution of a decision on the imposition of an administrative penalty or an order on the need to pay a fine until a decision is made on the complaint or protest. This approach is undoubtedly well-founded and modern, as it allows decisions that have been reviewed before their entry into force not to be transferred to the enforcement proceedings.
Part 5. The complaint submitted to a higher authority (official) must contain information and comply with the requirements provided for in art. 833 of the Administrative Code.
Special attention should be paid to the rather advanced and modern approach of the legislator regarding the provision to complainants of the possibility of its completion in case of non-compliance of its content with the requirements of art. 833 of the Administrative Code. In this case, the complaint is still considered filed, but it is returned with an indication of the deadline for completion. And only if the complaint has not been resubmitted or submitted to the body (official) within the specified period, it is considered not filed, and accordingly, is not subject to consideration.
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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