Commentary to article 23. Freedom to challenge procedural decisions and appeal against procedural actions The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Commentary to article 23. Freedom to challenge procedural decisions and appeal against procedural actions The Code of the Republic of Kazakhstan on Administrative Offences

1. The actions of the body (official) authorized to draw up protocols on cases of administrative offenses may be appealed, and decisions of the court, body (official) authorized to consider cases of administrative offenses may be challenged in accordance with the procedure established by this Code.

2. A person participating in a case has the right to review rulings in cases of administrative offenses in accordance with the procedure established by this Code.

3. It is not allowed to file a complaint to the detriment of the person who filed the complaint, or to the detriment of the person in whose interests it was filed.

The principle under consideration follows from the constitutional right of citizens provided for in Part 2 of Article 13 of the Constitution of the Republic of Kazakhstan, that everyone has the right to judicial protection of their rights and freedoms, as well as paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan stating that "judicial power extends to all cases and disputes arising on the basis of the Constitution, laws, other regulatory legal acts, international treaties of the Republic".

Part 1 of the commented article interprets the right of participants in the proceedings on administrative offenses:

1) to appeal against the actions of the bodies (officials) authorized to draw up protocols on cases of administrative offenses;

2) to challenge court decisions;

3) to challenge the decisions of the body (official) authorized to consider cases of administrative offenses.

The bodies (officials) authorized to draw up protocols on administrative offenses are listed in Article 804 of the Administrative Code. The same right is granted to authorized officials of the bodies specified in Articles 685-735 of the Administrative Code, who have the right to consider and impose an administrative penalty.

The actions of an authority (official) should be understood as administrative procedural actions (inaction) carried out at any stage of administrative proceedings, where the initial stage is actions to initiate proceedings on an administrative offense.

Based on Part 4 of Article 802 of the Administrative Code, an administrative offense case is considered initiated from the moment the first protocol on the application of measures to ensure the proceedings in the case of an administrative offense is drawn up. According to Part 3 of Article 785 of the Administrative Code, measures to ensure proceedings in an administrative offense case may be applied prior to the initiation of an administrative offense case (except for personal inspection, inspection of items with an individual) during the proceedings, as well as at the stage of execution of a decision in an administrative offense case  d on Part 4 of Article 802 of the Administrative Code, an administrative offense case is considered initiated from the moment the first protocol on the application of measures to ensure the proceedings in the case of an administrative offense is drawn up. According to Part 3 of Article 785 of the Administrative Code, measures to ensure proceedings in an administrative offense case may be applied prior to the initiation of an administrative offense case (except for personal inspection, inspection of items with an individual) during the proceedings, as well as at the stage of execution of a decision in an administrative offense case. This means that an appeal against the actions of officials is possible before drawing up a protocol on administrative offenses.

The mechanism for appealing actions (inaction) and decisions of the body (official) conducting proceedings on an administrative offense is provided for in Chapter 44 of the Administrative Code. Moreover, it is allowed to appeal the actions of the official conducting the proceedings on an administrative offense to a higher authority (official) and (or) to the court. A preliminary appeal to a higher authority (official) is not a prerequisite for filing a comechanism for appealing actions (inaction) and decisions of (official) conducting proceedings on an administrative offense is provided for in Chapter 44 of the Administrative Code. Moreover, it is allowed t appeal the actions of the official conducting the proceedings on an administrative offense to a higher authority (official) and (or) to the court. A preliminary appeal to a higher authority (official) is not a prerequisite for filing a complaint with the court and does not prevent its subsequent acceptance by the court for consideration and resolution on the merits.

The procedure for challenging decisions of the court, the body (official) authorized to consider cases of administrative offenses is regulated by chapters 43-1, 44-1, 45 and 46 of the Administrative Code.

Part 2 of the article under investigation provides for the right of a person involved in the case to review rulings in cases of administrative offenses.

Decisions on administrative offences are reviewed on the basis of chapters 45, 46 and 47 of the Administrative Code. Moreover, the new institution introduced (Chapter 47 Review of decisions that have entered into force in cases of administrative offenses, orders on the need to pay a fine and decisions based on the results of consideration of complaints, appeals, and prosecutor's protests against them due to newly discovered circumstances), by analogy with the CPC and CPC, provided an opportunity for a more comper, the new institution introduced (Chapter 47 Review of decisions that have entered into force in cases of administrative offenses, orders on the need to pay a fine and decisions based on the results of consideration of complaints, appeals, and prosecutor's protests against them due to newly discovered circumstances), by analogy with the CPC and CPC, provided an opportunity for a more complete implementation of the protection of the rights of persons involved in proceedings in cases of administrative offences.

Decisions on cases of administrative offenses, orders on the need to pay a fine, and decisions on the results of consideration of complaints and protests may be reviewed based on newly discovered circumstances. The grounds for reviewing resolutions and regulations based on newly discovered circumstances are:

1) circumstances essential to the case that were not and could not have been known to the offender, the victim;

2) knowingly false testimony of a witness, knowingly false expert opinion, knowingly incorrect translation, falsification of the protocol on an administrative offense or an order on the need to pay a fine, documents or material evidence that led to the issuance of an illegal or unjustified decision, established by a court verdict that has entered into legal force.;

3) the criminal acts of participants in the proceedings on administrative offences, other persons participating in the case, or their repres3) the criminal acts of participants in the proceedings on administrative offences, other persons participating in the case, or their representatives, or the criminal acts of judges, authorized bodies (officials) committed during the consideration of the case, established by a court verdict that has entered into legal force.;

4) cancellation of a decision, verdict, ruling or resolution of a court or a legal act of another state body (official) that served as the basis for the issuance of this resolution;

5) recognition by the Constitutional Council of the Republic of Kazakhstan of a law or other normative legal act that was applied in this case of an administrative offense as unconstitutional.

According to part 3 of the commented article, it is not allowed to file a complaint to the detriment of the person who filed the complaint, or to the detriment of the person in whose interests it was filed.

In case of detection of such illegal actions, administrative liability is imposed under Article 100 of the Administrative Code. It should beIn case of detection of such illegal actions, administrative liability is imposed under Article 100 of the Administrative Code. It should be noted that under Article 100 of the Administrative Code, individuals have the right to apply for restoration of violated rights without drawing up a protocol on an administrative offense (Part 4 of Article 807 of the Administrative Code). Moreover, in accordance with paragraph 1 of Article 805 of the Administrative Code, the prosecutor also has the right to initiate an administrative offense case by his decision.

Judges of specialized district and equivalent administrative courts have the rightJudges of specialized district and equivalent administrative courts have the right to make a decision on the imposition of an administrative penalty.

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 Vladimirovichlexander 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-aSeitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – capter 4; chapter 5o-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);

Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

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;

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

Attention!

Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.

For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases