Comment to article 829-2. The right to appeal, to appeal against a decision on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on a complaint, protest The Code of the Republic of Kazakhstan on Administrative Offences
1. The persons specified in Articles 744, 745, 746, 747, 748 and 753 of this Code may appeal, and the prosecutor may appeal, the decision on the case of an administrative offense, the order on the need to pay a fine, the decision of a higher authority (official) on the complaint, protest.
2. The decision of a judge of a specialized district and equivalent administrative court and juvenile court on the imposition of an administrative penalty may be appealed or protested to a higher court.
3. A decision in a case of contempt of court, issued by a judge (court) in accordance with the procedure provided for in part four of Article 829-10 of this Code, may be appealed or protested to a court of a higher instance.
4. The decision issued by the body (official) in the case of an administrative offense, the order on the need to pay a fine may be appealed, protested to a specialized district and equivalent administrative court and juvenile court at the location of the body (official).
5. The preliminary appeal of the persons referred to in Articles 744, 745, 746, 747 and 748 of this Code 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.
Part 1. An appeal against a decision in an administrative offense case is a set of procedural actions aimed at restoring violated rights and protected interests of participants in administrative proceedings, as a means of identifying and eliminating deficiencies in the activities of bodies authorized to consider cases of administrative offenses. This rule is typical both for bodies (officials) authorized to consider cases of administrative offenses, and for the court (cassation review). The right to appeal is a constitutional right arising from a number of articles of the Constitution of the Republic of Kazakhstan (76, 77, 81, etc.). However, this right depends on the discretion of the person against whom the final procedural decision on the case was made. In accordance with the Administrative Code, this right is granted to persons specified in Articles 744, 745, 746, 747, 748 and 753 of the Administrative Code. These are, in particular:
– a person in respect of whom proceedings are underway on an administrative offense, including minors;
– legal representatives of an individual;
– victims, including their representatives;
– representatives of an individual entrepreneur or a legal entity;
– defenders, including lawyers, etc.
This right is ensured by the mandatory announcement of the resolution and the delivery of a copy of it, an explanation of the procedure for appealing, and the time frame for appealing.
When drafting a complaint, attention should be paid to the reasoning of the arguments presented in it with references to laws and other regulatory legal acts that, in the opinion of the person filing the complaint, were not properly applied or not applied, or applied incorrectly, confirming their arguments with the evidence available in the case or by providing or referring to new evidence that was not the subject of a case study earlier (for objective or other reasons). The complaint must end with a statement of the applicant's claims based on the authority of the authorities (for more information on the content of the complaint, see the commentary to art. 833 "Content of the complaint, appeal petition of the prosecutor").
Part 2 of the commented article establishes the jurisdiction for cases considered by a judge of a specialized district and equivalent administrative court and juvenile court on the imposition of administrative penalties. Such cases may be appealed to a higher court, as well as reviewed on appeal by the prosecutor. Thus, when determining the jurisdiction of cases, one should take into account not only the subjective composition of the participants in the offense, but also the nature of the dispute.
Part 3 also establishes jurisdiction for rulings on cases of contempt of court issued by judges (courts) in accordance with the procedure provided for in Part 4 of Articles 829-10 of the Administrative Code. It can be appealed or appealed to a higher court.
Part 4 of the commented article establishes jurisdiction for cases considered by the body (official), both for resolutions and orders on the need to pay a fine. Such final procedural decisions in the case may be appealed or protested to a specialized district and equivalent administrative court and the juvenile court at the location of the body (official).
The provision of part 5 of the commented article is of crucial importance for the observance of the constitutional rights of citizens. As you know, in some cases, the law requires compliance with the pre-trial appeal procedure. That is, an appeal to the court is impossible before a preliminary appeal to a higher authority (official). This provision detracts from the effect of this principle in the Administrative Code, which confirms the high level of legal protection of citizens.
However, this provision correlates with Part 5 of art. 683 of the Administrative Code, according to which, upon a written application or upon an application in the form of an electronic document certified by an electronic digital signature of the legal representative of the person against whom proceedings are being conducted on an administrative offense, or the victim, who are minors, or who are physically or mentally unable to exercise their rights independently, the case may be considered in specialized district and equivalent administrative courts, and in the absence of such courts – in courts of general jurisdiction.
According to paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan, "Judicial power extends to all cases and disputes arising on the basis of the Constitution, laws, other normative legal acts, and international treaties of the Republic." The interpretation of this constitutional norm has been carried out by the Constitutional Council twice when considering specific constitutional cases. The Constitutional Court of the Republic of Kazakhstan in its Resolution No. 7/2 dated March 29, 1999 "On the official interpretation of paragraph 2 of Article 13, paragraph 1 of Article 14, paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan" determines that the norm of paragraph 2 of art. 76 of the Constitution of the Republic of Kazakhstan should be understood in such a way that justice in the Republic is carried out only by the court through the forms of legal proceedings established by law.
Secondly, when interpreting this provision, the Constitutional Council pointed out that the restriction of constitutional rights (in the form of compulsory alienation of property) is possible in accordance with the law, without a preliminary court decision, which nevertheless does not exclude the possibility of a subsequent judicial appeal of the decision of the state body. That is, we are talking about the fact that the subject of consideration by the courts are all cases and disputes, but referred by law to their jurisdiction. Thus, the priority of the right of the participants in the proceedings to have their case considered by a court, rather than by an authority (official), is established.
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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