Comment to article 827. Procedure for filing a complaint The Code of the Republic of Kazakhstan on Administrative Offences
1. A person whose rights and freedoms are directly affected by an action (inaction) and (or) a decision of the body (official) conducting proceedings on an administrative offense has the right to file a complaint with a higher body (official) and (or) with a court for violation of the law on the preparation of a protocol on an administrative offense, the application of measures ensuring the proceedings on the case, the purpose and procedure of the examination, for other actions (inaction) and decision-making, with the exception of decisions taken based on the results of consideration of an administrative offense case and on a complaint (protest) against a ruling on an administrative offense case. A preliminary appeal to a higher authority (official) is not a prerequisite for filing a complaint with the court and its acceptance by the court for consideration and resolution on the merits.
2. Complaints are submitted to the body (official), the court, whose actions (inaction) and decisions are being appealed, which is obliged to send them to a higher body (official), the appropriate court within three days from the date of receipt of the complaint.
Complaints can be submitted directly to a higher authority (official), a court authorized to consider them.
3. Complaints may be oral or written. Oral complaints are recorded in a protocol, which is signed by the applicant and the official who accepted the complaint. Oral complaints presented by persons at the reception of the relevant officials are resolved on the same basis as complaints submitted in writing. Additional materials may be attached to the complaint.
4. A person who does not speak the language in which the proceedings are conducted is guaranteed the right to file a complaint in his native language or the language he speaks.
5. The person who filed the complaint has the right to withdraw it. The person against whom the case has been initiated, the victim has the right to withdraw the complaint of his defender, representative, except for the legal representative. A complaint filed in the interests of a person against whom a case has been initiated may be withdrawn only with their written consent. The withdrawal of the complaint does not prevent its re-filing.
6. The filing of a complaint does not suspend the proceedings of the contested action and the execution of the contested decision.
7. If a written application is submitted to withdraw a complaint against an action (inaction) of an official conducting administrative proceedings, the judge issues a ruling on the return of the complaint.
Note. If a specialized interdistrict administrative court has not been established on the territory of the relevant administrative-territorial unit, cases referred to their jurisdiction may be considered by district (city) courts.
Part 1. The right to appeal against actions (inaction) (or decisions of bodies (officials) conducting proceedings on an administrative offense is a state-guaranteed opportunity to restore violated rights and protected interests of citizens, a means of identifying and eliminating deficiencies in the activities of bodies authorized to consider cases of administrative offenses. The realization of the right of citizens to appeal against the actions of state bodies and authorized officials basically complies with the requirements of the Constitution of the Republic of Kazakhstan, which established the guarantee of judicial protection, rights and freedoms of citizens (Part 2 of Article 13 of the Constitution).
In accordance with Article 23 of the Administrative Code, the freedom to appeal against the procedural actions of authorized officials conducting administrative proceedings is one of the principles of the legislation of the Republic of Kazakhstan on administrative offenses.
A complaint is a written or oral appeal by a participant in the proceedings on an administrative offense regarding the restoration of his rights and legitimate interests, which, in his opinion, were violated by actions (inaction) (or decisions of bodies (officials) conducting administrative proceedings.
Actions (inaction) (or) decisions of the body (official) conducting proceedings on an administrative offense case may be appealed.:
- the person in respect of whom proceedings are being conducted in the case of an administrative offense;
- to the victims;
- legal representatives of an individual;
- legal representatives of a legal entity;
- the defender;
- representative of the victim.
The use of the right to appeal depends on the discretion of the persons to whom such a right is granted: they can exercise such a right or waive it.
These persons may appeal against any actions (omissions) (or decisions of bodies (officials) that significantly violate their rights and legitimate interests. As an example, actions such as unlawful bringing to administrative responsibility, unjustified application to a person of measures to ensure proceedings in an administrative offense case or violation of the procedure established by law for their application, unlawful restriction of the procedural rights of participants in administrative proceedings, falsification of evidence of a committed offense, unjustified termination of administrative proceedings, etc.
The inaction of an official can be attributed to such acts as failure to take measures to identify persons who have committed an administrative offense or bring them to justice, unjustified consideration of an administrative offense case for a long time, failure to apply measures to ensure the proceedings on an administrative offense necessary to collect evidence, etc.
In the course of administrative proceedings, actions (inaction) (or) decisions of all bodies (officials) authorized in accordance with Articles 804 and Chapter 36 of the Administrative Code to draw up protocols on administrative offenses, consider cases of administrative offenses and impose administrative penalties may be appealed.
Part 2. The legislation of the Republic of Kazakhstan on administrative offenses provides for two procedures for appealing actions (inaction) (or decisions of bodies (officials):
an out-of-court procedure providing for consideration of a complaint by the prosecutor or the head of the body conducting proceedings on an administrative offense case;
a judicial procedure providing for the consideration of a complaint in a specialized district or equivalent administrative court.
Part 1 of the commented article states that actions (inaction) (or decisions of bodies (officials) conducting administrative proceedings may be appealed to a higher authority or a higher official. Higher authorities are understood as higher-level structural divisions of the body conducting proceedings on an administrative offense, or the prosecutor's office. For example, illegal actions of employees of a district or city police department can be appealed to the Police Department, the Regional Police Department (city of republican significance, capital), or the Ministry of Internal Affairs, as well as the Prosecutor's Office (district, city, regional, General).
Higher-level officials are understood to be the heads of the body conducting administrative proceedings at various levels, as well as prosecutors. For example, illegal actions of patrol police officers can be appealed to the head of the department, the department of the local police service, the head of the Police Department of the region (city of republican significance), the chairman of the Administrative Police Committee of the Ministry of Internal Affairs, the Minister of Internal Affairs, or the prosecutor (district, city, region, Prosecutor General).
In turn, the head of the body conducting administrative proceedings is an official whose authority includes the implementation of departmental control over compliance with the rule of law in cases of administrative offenses.
In addition, actions (inaction) (or decisions of bodies (officials) conducting administrative proceedings may be appealed to a specialized district and equivalent administrative court.
Article 3 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" states that the judicial system in the Republic of Kazakhstan consists of the Supreme Court of the Republic of Kazakhstan, local and other courts established in accordance with the Constitution of the Republic of Kazakhstan and this law. Local courts include:
1) regional and equivalent courts (city court of the capital of the republic, city courts of cities of republican significance);
2) district and equivalent courts (city court, interdistrict court).
In accordance with the above-mentioned law, specialized courts may also be established in the Republic of Kazakhstan to deal with a certain category of cases. These can be military, financial, economic, administrative, juvenile courts, and others.
The commented article states that complaints about actions (inaction) (or decisions of bodies (officials) conducting administrative proceedings are considered exclusively in a specialized district and equivalent administrative court. However, such consideration of the complaint is mandatory, provided that there is a specialized administrative court in the locality where the complaint is filed.
The article also specifies the right of a person to file a complaint immediately to court, bypassing higher authorities.
Consideration of the complaint and making an appropriate decision on it are exclusively within the competence of the authorities (officials), the list of which is established by the legislation of the Republic of Kazakhstan on administrative offenses. As mentioned above, such bodies include higher authorities that exercise departmental control over the activities of the body whose actions are being appealed, the prosecutor's office or the court (administrative, district, city).
Complaints cannot be considered by the official whose actions are being appealed because of his interest in the outcome of the case. Therefore, an appeal can only be made by other officials who are not interested in the outcome of the case.
Part 3. Complaints may be submitted orally or in writing to an authorized official. A person may present his arguments in writing regarding the actions complained of and file a written complaint with the authorized state body, or he may also appear before this body and verbally present his arguments to the official receiving the complaint. In this case, the official is obliged to include the testimony of the person who applied in the protocol, which is signed by the person who filed the complaint and the official himself.
A person who has filed a complaint with the authorized body may also attach to it any materials, documents of evidentiary value and confirming the fact of a violation of the law by the official whose actions are being appealed.
Part 4. If a person who has appealed to a state body does not speak the language in which the proceedings on an administrative offense are conducted, then he has the right to file a complaint in his native language or in another language that he speaks.
Part 5 of the commented article states that the person who filed the complaint has the right to withdraw it at any time. The person against whom proceedings on an administrative offense are being conducted, as well as the victim, have the right to independently withdraw the complaint of their lawyer or representative. However, persons whose interests are represented in court by legal representatives do not have this right, since these persons cannot independently protect their rights and legitimate interests without the participation of a legal representative.
If the complaint was filed by the defender of the person against whom administrative proceedings are being conducted, or by the victim's representative, it can be withdrawn only with the written consent of the victim or the person being held administratively liable. The complaint may be filed again, despite its previous review.
In part 6 of the commented article, it is stated that filing a complaint does not suspend the proceedings of the contested action and the execution of the contested decision. This means that the body (official) whose actions are being appealed is not obliged to immediately stop the actions performed by the person immediately after the complaint is filed and not to make decisions on the case of an administrative offense. For example, filing a complaint does not prevent the application to a person against whom administrative proceedings are being conducted, measures to ensure proceedings in the case of an administrative offense, or the issuance of an administrative penalty against this person. An official conducting administrative proceedings is only required to explain to the person in respect of whom the proceedings are being conducted his right to appeal any actions and decisions.
Part 7. If a written application is submitted to withdraw a complaint against an action (inaction) of an official conducting administrative proceedings, the judge issues a ruling on the return of the complaint.
The note to the commented article stipulates the possibility of considering a complaint against the actions of bodies (officials) conducting administrative proceedings, not only in an administrative court, but also in a district or city court if there is no specialized administrative court in the locality. The envisaged alternative to reviewing complaints is very necessary, since currently not all localities in the Republic of Kazakhstan have specialized administrative courts (especially in small towns and rural areas).
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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