Comment to article 826-3. Consideration of a complaint, a protest against a ruling on an administrative offense, an order on the need to pay a fine  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. A complaint, a protest against a ruling on an administrative offense, an order on the need to pay a fine are subject to consideration within ten days from the date of their receipt.

     2. The higher authority (official), having begun consideration of the complaint, protest against the decision on the case of an administrative offense, the order on the need to pay a fine:

     1) announces who is considering the complaint, protest, which complaint, protest is subject to consideration; by whom the complaint, protest was filed; finds out whether the consideration of the complaint, protest falls within his competence; if the consideration of the complaint, protest does not fall within his competence, sends them with all the case materials under his jurisdiction;

     2) certifies the appearance of the person against whom the decision on the case has been made, the order has been issued, or his representative, as well as the persons called to participate in the consideration of the complaint, protest;

     3) verifies the powers of the participants in the proceedings and their legal representatives;

     4) finds out the reasons for the non-appearance of the participants in the proceedings and decides whether to consider the complaint or protest in their absence or to postpone consideration of the complaint or protest.;

     5) explains to the persons participating in the consideration of the complaint, protest, their rights and obligations;

     6) announces a complaint, a protest against the decision on the case of an administrative offense, an order on the need to pay a fine, and, if necessary, other materials of the case.;

     7) resolves the filed challenges and petitions, establishes other circumstances necessary for a full, comprehensive and objective consideration of the complaint or protest.

     3. When considering a complaint or protest against a ruling in an administrative offense case, or an order for the payment of a fine, the legality and validity of the ruling and instructions are checked based on the materials available in the case and additionally submitted. A higher authority (official) has the right to establish new facts and investigate new evidence.

     When considering a case of an administrative offense, the body (official) is obliged to find out whether an administrative offense has been committed, whether this person is guilty of its commission, whether he is subject to administrative responsibility, whether there are circumstances mitigating and aggravating liability, whether property damage has been caused, the circumstances provided for in Articles 741 and 742 of this Code, as well as find out other circumstances that are important for the proper resolution of the case.

     4. A higher authority (official) has the right to postpone consideration of a complaint or protest in connection with the request for additional materials on the case, the appointment of an expert examination and in other cases when this is necessary for a full, comprehensive and objective consideration of the complaint or protest.

     5. In case of receipt of petitions from participants in the proceedings on an administrative offense or the need for additional clarification of the circumstances of the case, the time limit for consideration of the complaint or protest may be extended by a higher authority (official) considering the case, but not more than ten days. The body (official) is obliged to suspend the period of consideration of a complaint or protest if it is impossible to consider them before resolving another case being considered in civil, criminal or administrative proceedings, as well as in the case of appealing the results of tax and (or) customs inspections, on the basis of which an administrative offense case was initiated, to a higher authority or when sending a request to the state body on issues relevant to the case. The decision to suspend or extend the term is made in the form of a ruling.

     6. If a complaint or protest against a ruling on an administrative offense, or an order to pay a fine, has been received simultaneously by the court and a higher authority (official), then the complaint or protest filed with the higher authority must be sent to court.

     This article sets out the conditions that must be observed when considering a complaint, protest against a ruling on an administrative offense, instructions on the need to pay a fine, as well as procedures and rules for their consideration.  

     In accordance with part 1 of the commented article, any complaint (protest) against a ruling on an administrative offense, an order on the need to pay a fine must be considered within 10 days from the date of their receipt. At the same time, such a complaint (protest) must be filed taking into account the requirements of Part 5 of art. 826-2 of the Administrative Code.  

     Part 2. The procedure for considering complaints, protests, and orders by a higher authority, as follows from the content of the article, largely corresponds to what is provided for in Chapter 43 of the Administrative Code.  

     A higher authority (official), having begun considering a complaint or protest against a ruling on an administrative offense, an order for the payment of a fine, announces who is considering the complaint (protest), which complaint or protest is subject to consideration; by whom the complaint or protest was filed; finds out whether the complaint or protest is within its competence. if the consideration of a complaint or protest does not fall within his competence, he sends them with all the case materials according to their jurisdiction.

     The second step in the review is to check the attendance of persons, and in case of non-attendance, also the validity of the reasons for non-attendance. This category includes persons in respect of whom a decision has been made on the case, an order has been issued, or his representative, as well as persons called to participate in the consideration of a complaint or protest. In addition, the powers of representatives and legal representatives, as well as other participants in the proceedings, are checked. As a result, a decision is made to consider the complaint or protest, or to postpone consideration of the complaint or protest due to the non-appearance of certain persons.

     After explaining to the persons participating in the consideration of the complaint, protest, their rights and duties, the official announces the complaint, protest against the decision on the administrative offense case, the order on the need to pay a fine, and, if necessary, other case materials.  

     During the consideration of the case, the higher authority (official) is obliged to resolve the filed challenges and petitions, as well as establish other circumstances necessary for a full, comprehensive and objective consideration of the complaint or protest.

     Part 3. When verifying the legality and validity of a ruling on an administrative offense, a higher authority (official) verifies the legality of actions at the stage of initiating proceedings on an administrative offense, since violations committed at this stage may affect the legality and validity of the decision as a whole.  

     It is important to point out that a higher authority (official) has the right to establish new facts and investigate new evidence. This brings such a review by a higher authority (official) closer to the initial review, both in terms of the depth and limits of the study, and in terms of the range of procedural possibilities.  

     Thus, the higher authority (official) is not connected with the arguments of the complaint and verifies the case in full. When considering a case of an administrative offense, a higher authority (official) is obliged to find out whether an administrative offense has been committed, whether this person is guilty of committing it, whether he is subject to administrative responsibility, whether there are circumstances mitigating and aggravating liability, whether property damage has been caused, the circumstances provided for in Articles 741 and 742 of the Administrative Code, and find out other circumstances that are important for the proper resolution of the case.  

     For example, if only a penalty is being appealed, during the consideration of the complaint it is necessary to verify the authenticity of the very fact of the offense, the guilt of the person who committed it, and all other circumstances relevant to the case.  

     At the same time, the legality and validity of the decision should be checked not only based on the materials in the case, but also taking into account the additional evidence provided. In these cases, the testimony of other persons involved in the consideration of the complaint, the explanations of the specialist and the expert's opinion are heard, other evidence is examined, and other procedural actions are carried out in accordance with the Administrative Code. Thus, elements of appeal proceedings are being introduced, which allows us to hope for improving the effectiveness of this stage of consideration of cases of administrative offenses and ensuring timely elimination of violations of the law, which are still quite often allowed when considering cases of administrative offenses.  

     Taking into account the above, for a full, comprehensive and objective consideration of the complaint or protest in accordance with part 4 of the commented article, a higher authority (official) has been granted the right to postpone consideration of the complaint or protest in connection with the request for additional materials on the case, the appointment of an expert examination and in other cases.  

     In accordance with part 5 of the commented article, in case of receipt of petitions from participants in the proceedings or the need for additional clarification of the circumstances of the case, the time limit for consideration of a complaint or protest may be extended by the person considering the case, but not more than 10 days.  

At the same time, according to the imperative requirement of the same norm of the Administrative Code, the body (official) is obliged to suspend the period for consideration of a complaint or protest if it is impossible to consider them before resolving another case being considered in civil, criminal or administrative proceedings, including in the case of an appeal against the results of tax and (or) customs inspections, on the basis of which the case was initiated. about an administrative offense, to a higher authority, or when sending a request to a government agency on issues relevant to the case. A reasoned ruling is issued on the extension of the term.  

     Part 6 establishes the priority of the constitutional provision (Article 76 of the Constitution) regarding the jurisdiction of disputes to the court. Accordingly, if a complaint or protest against a ruling on an administrative offense, or an order to pay a fine were received simultaneously by the court and a higher authority (official), then the complaint or protest filed with the higher authority must be sent to court.  

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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