Comment to article 826-4. The decision on the complaint, protest against the decision on the case of an administrative offense, the order on the need to pay a fine and its announcement The Code of the Republic of Kazakhstan on Administrative Offences
1. Having considered a complaint, a protest against a ruling on an administrative offense, an order on the need to pay a fine, a higher authority (official) makes one of the following decisions on:
1) leaving the resolution or regulation unchanged, and the complaint or protest without satisfaction;
2) amendment of the resolution;
3) cancellation of the resolution, order and termination of the case;
4) the cancellation of the resolution, the order and the issuance of a new ruling on the case.
2. The decision on the complaint, protest against the decision on the case, the order is announced immediately after its adoption and is issued in the form of a resolution on the complaint, protest, executed in accordance with Article 822 of this Code in writing or in the form of an electronic document.
3. A decision on a complaint, protest against a decision on a case, or an order, within three days after its issuance, shall be handed over or sent to the person against whom the decision on the case was issued, the order was issued, or to his representative, the victim in the case of filing a complaint, as well as to the prosecutor who brought the protest.
4. A decision of a higher authority (official) on a complaint or protest against a decision in an administrative offense case, or an order requiring the payment of a fine, may be appealed or protested within ten days from the date of delivery or receipt of the decision to the court in accordance with the procedure provided for in Chapter 44-1 of this Code.
Part 1. As a result of consideration of a complaint, a protest against a decision on an administrative offense, or an order on the need to pay a fine, a higher authority (official) makes one of the decisions provided for in the commented article.:
1) to leave the resolution or regulation unchanged, and the complaint or protest without satisfaction. An order on the need to pay a fine or a ruling in an administrative offense case is left unchanged, and the complaint (protest) is not satisfied if: the arguments set out in the complaint (protest) do not shake the correctness of the order, resolution; the arguments contained in the complaint (protest) are in conflict with those not refuted in the case of administrative offense with evidence; When considering the complaint (protest), no grounds were found for canceling or changing the decision made in the case.;
2) on the amendment of the resolution. The most important, but insufficiently regulated issue is the "impossibility" of changing the order on the need to pay a fine, the decision on the case of an administrative offense in an unfavorable direction for the person. It should be assumed that such a prohibition also applies to the revision of the decision in the order of the commented chapter. This follows from Articles 826-5 of the Administrative Code, which refers us to Part 3 of Article 842 and Part 2 of Article 844 of the Administrative Code. In particular, they provide for a corresponding prohibition.
According to the general procedure, a higher authority (official) has the right to change the penalty for an administrative offense within the limits provided for by law, 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 strengthening the administrative penalty in the order of reviewing the order on the need to pay a fine and the decision on the case of an administrative offense means that a higher authority (official) does not have the right to: increase the amount of the penalty, even if it is imposed in clear violation of the Administrative Code; replace the type of penalty with a more severe one; apply an additional penalty if it has not been imposed; to amend an order or resolution, if this does not increase the administrative penalty or otherwise worsen the situation of the person against whom the decision was issued.;
3) on the cancellation of a resolution, order and termination of the case in the presence of circumstances provided for in Articles 741 and 742 of the Administrative Code, as well as in the absence of evidence of the circumstances on the basis of which the decision was issued, the order was issued. The provision of the commented subparagraph is similar to that given to Articles 829-14 of the Administrative Code in the relevant part.
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), and it is also possible if there are grounds provided for in Article 742 of the Administrative Code. Requires the introduction into practice of the direct application of Part 2 of art. 741 of the Administrative Code, according to which proceedings in an administrative offense case are terminated on the grounds provided for in subparagraphs 1) and 2) of part one of the said article, both if the absence of an administrative offense event or the composition of an administrative offense is proven, and if their existence is not proven, if all possibilities for collecting additional evidence have been exhausted, as well as in cases where when the harm is lawful or the act was committed under circumstances that, in accordance with Chapter 5 of the Administrative Code, exclude administrative liability.
Circumstances that are not supported by evidence or are based on contradictory evidence should be considered unproven, as well as if the resolution or instruction does not specify on what grounds some conclusions containing significant contradictions were adopted and others were rejected, which influenced or could have influenced the decision on the guilt or innocence of the person being investigated. on an administrative offense, on the correctness of the application of the Administrative Code norm, or on the determination of 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, in the course of which all possible means of proof were not used, some evidence was not checked with the help of others: persons whose testimony is essential to the case were not interviewed, documents or material evidence of significant importance were not requested, etc. The cancellation of a resolution or regulation 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 regulation.;
4) on the cancellation of the resolution, the order and the issuance of a new ruling on the case. All comments on the previous grounds apply to this type of decision. In this case, a new procedural decision is made according to the rules established by the Administrative Code, as for a decision made for the first time.
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. 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.
In accordance with part 2 of the commented article, the decision on the complaint, protest against the decision on the case, the order is issued in the form of a resolution drawn up in accordance with art. 822 of the Administrative Code in written or electronic form and must be announced immediately after its issuance.
Parts 3 and 4 establish a three-day period for a higher authority (official) to serve or send a decision on a complaint or protest against a decision on a case after it has been issued to the person against whom the decision on the case has been issued, an order has been issued, or his representative, the victim in the case of a complaint, as well as the prosecutor who brought the protest.
This mechanism is important in enabling such a person to subsequently appeal (protest) the said decision to the court within 10 days from the date of delivery or receipt of the decision to the court in accordance with the procedure provided for in Chapter 44-1 of the Administrative Code.
Here it is necessary to understand that the definition of "resolution" should equally be understood as the resolution of a higher authority (official) following the consideration of a complaint or protest, as well as the resolution itself in the case of an administrative offense, an order on the need to pay a fine.
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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