Comment to article 829-5. Terms of consideration of an administrative offense case, complaint, protest against a decision on an administrative offense case, an order on the need to pay a fine, a decision of a higher authority (official) on the complaint, protest The Code of the Republic of Kazakhstan on Administrative Offences
1. Cases of administrative offenses, a complaint, a protest against a decision on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on the complaint, protest, are considered within fifteen days from the date of receipt by the court competent to consider the case, the protocol on the administrative offense, complaint, protest and other materials business.
If an administrative offense is recorded by certified special control and measuring equipment and devices operating in automatic mode, the case is considered to be considered after fifteen days from the date of proper delivery of the order on the need to pay a fine, with the exception of cases considered on the merits in a shortened procedure.
2. In case of receipt of petitions from participants in the proceedings on an administrative offense or, if necessary, additional clarification of the circumstances of the case, the time limit for consideration of the case, complaint, protest may be extended by the court, but not more than fifteen days.
3. The case of an administrative offense, the commission of which entails administrative arrest, administrative expulsion from the Republic of Kazakhstan, is considered on the day of receipt of the protocol on the administrative offense and other case materials, and in respect of a person subjected to administrative detention – no later than twenty-four hours from the moment of his detention.
A complaint or protest against a decision on administrative arrest, if the person brought to justice is serving administrative arrest, is subject to consideration within one day from the moment of filing the complaint or protest.
4. The court is obliged to suspend the term of consideration of a case, complaint, protest if it is impossible to consider it 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 the expiration of the term to appeal against the decision of the body (official) considering the complaint of the person against whom an administrative offense case has been initiated.
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Part 1 of the article establishes a 15-day time limit for the consideration of cases of administrative offenses, complaints, and protests against decisions on an administrative offense, orders on the need to pay a fine, and decisions of a higher authority (official) on the complaint or protest. Optimal in terms of the combination of speed of complaint review. This period seems to be sufficient for a full and comprehensive review of the case, verification of the legality and validity of the decision on the case.
This period is calculated from the date of receipt by the court competent to consider the case, the protocol on the administrative offense, complaint, protest and other case materials. The end of the period for consideration of a complaint or protest against decisions on an administrative offense, orders on the need to pay a fine, and decisions of a higher authority (official) on the complaint or protest is calculated from the moment the relevant decision is made on it.
Taking into account the specifics of cases in which an administrative offense was recorded by certified special control and measuring equipment and devices operating in automatic mode, and the features established by the Administrative Code, the legislator considered it necessary to establish in the order of "legal fiction" that such a case is considered considered after 15 days from the date of proper delivery of the order on the need to pay a fine.
This provision is appropriate in cases where a person in a case for which an administrative penalty in the form of a fine is provided, in accordance with paragraph 1 of Part 1 of Article 44 of the Administrative Code, has not exercised his right provided for in Chapter 42 of the Administrative Code. Namely: to pay a fine in the amount of 50% of the article of the Special Part of the Administrative Code specified in the sanction if the fact of committing an offense is recognized and the subsequent appeal is not refused, both the evidence and the decision on the case (with the exception of proceedings, due to newly discovered circumstances).
Part 2. In case of receipt of petitions from participants in the proceedings on an administrative offense or, if necessary, additional clarification of the circumstances of the case, the time limit for consideration of the case may be extended, but not more than fifteen days. A reasoned ruling is issued on the extension of the term.
Part 3. As mentioned above in the comments to art. 829-3, the case of an administrative offense, the commission of which entails administrative arrest, administrative expulsion from the Republic of Kazakhstan, is considered on the day of receipt of the protocol on the administrative offense and other case materials.
At the same time, if a person has been subjected to administrative detention, then no later than 24 hours from the moment of his detention. This provision has a clear human rights connotation, as it is designed to implement the literal application of Article 16 of the Constitution of the Republic of Kazakhstan.
A similar attitude on the part of the legislator is seen in relation to a complaint or protest against a decision to impose an administrative penalty in the form of administrative arrest, if the person brought to justice is serving administrative arrest. Such a case is subject to consideration within one day from the moment of filing a complaint or protest.
Separate difficulties for judicial practice are created by cases of administrative offenses, the commission of which entails administrative arrest, administrative expulsion from the Republic of Kazakhstan, which must be considered on the day of receipt of the protocol on the administrative offense and other case materials.
However, the authorities (officials) did not submit the relevant persons to the court together with the specified materials (protocol), and the court is unable to ensure his appearance in the allotted time. At the same time, their participation in the consideration of the case is mandatory in accordance with Part 3 of Article 744 of the Administrative Code. The drive cannot be carried out due to time constraints. Return of such cases to the authorities (officials) The Code does not provide for, as well as the extension of the specified time limits. This issue requires its subsequent settlement at the level of the law. If the amendments to the Administrative Code are not adopted, then in practice, the resolution of this issue is seen only through using the potential of the stage of preparation for the consideration of an administrative offense case. So, in accordance with subparagraph 2) In Part 1 of Article 829-6 of the Administrative Code, when preparing for consideration of a case, complaint, or protest, the court finds out, among other things, whether there are circumstances precluding the possibility of consideration of the case, complaint, or protest by the court.
If the case of an administrative offense, the commission of which entails administrative arrest, administrative expulsion from the Republic of Kazakhstan, has been submitted to the court, but the person who committed the administrative offense is absent, the court cannot proceed to the consideration of such a case.
In this case, in accordance with Part 4 of art. 829-9 of the Code, when preparing for a retrial of an administrative offense case in connection with the failure to appear without valid reasons of the person being held accountable, his representative, witness in the cases provided for in Part 4 of art. 744, Part 6 of art. 746 and Part 5 of art. 754 of the Code, the court has the right to make a ruling on the bringing of these persons in accordance with art. 790 of the Administrative Code.
In accordance with Part 4, the court is obliged to suspend the term of consideration of a case, complaint, or protest if it is impossible to consider it before resolving another case being considered in civil, criminal, or administrative proceedings, as well as in the case of an appeal against the results of tax and (or) customs inspections, on the basis of which an administrative offense case was initiated. a higher authority or the expiration of the time limit for appealing the decision of the authority (official) considering the complaint of the person against whom an administrative offense case has been initiated.
Two significant points should be noted here. Firstly, consideration of the results of tax and (or) customs inspections, on the basis of which an administrative offense case is initiated, is theoretically possible in two legal proceedings: administrative, through Chapter 44 of the Administrative Code and civil procedure, through Chapter 29 of the CPC. The legislator did not clearly define this, although he did not make a fundamental difference for them.
Secondly, in this provision, the legislator determined that appealing the results of tax and (or) customs inspections is beyond the scope of consideration of the case of an administrative tax (customs) offense. Therefore, when considering such cases, the arguments of the participants confirming or refuting the results of tax and (or) customs inspections are not subject to discussion, since such results are subject to appeal in a separate proceeding by a higher authorized body or 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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