Commentary to article 826-1. The right to appeal against a ruling on an administrative offense, an order on the need to pay a fine The Code of the Republic of Kazakhstan on Administrative Offences
The persons specified in Articles 744, 745, 746, 747, 748 and 753 of this Code may appeal, and the prosecutors may appeal the decision on the case of an administrative offense, the order on the need to pay a fine to a higher authority (official).
Chapter 43-1 was included in the Administrative Code in 2017 by the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses". With the mentioned Law, the legislator systematized the procedural rules of the Administrative Code. In particular, the norms are separated from chapter 45 into an independent chapter 43-1, which regulates the procedure for appealing, protesting decisions that have not entered into force in cases of administrative offenses and prescriptions on the need to pay a fine to a higher authority (official). That is, the norms governing the review of a case by a court and a higher authority (official) are separated by law.
In addition, the second feature is that the independent object of appeal is now explicitly provided not only for the resolution, but also for the requirement to pay a fine as an independent type of final decision on the case.
The commented article stipulates that the persons specified in Articles 744, 745, 746, 747, 748 and 753 of the Administrative Code may appeal, and the prosecutors may appeal the decision in the case of an administrative offense, the order on the need to pay a fine to a higher authority (official). Besides the prosecutor, this is also:
– a person in respect of whom proceedings are underway on an administrative offense, including minors;
– victims, including their representatives;
– legal representatives of an individual;
– representatives of an individual entrepreneur or a legal entity;
– defenders, including lawyers, etc.
The right of the above-mentioned persons to appeal against the decision in the case of an administrative offense, orders on the need to pay a fine are also enshrined in the relevant articles of the Administrative Code, providing for their procedural status in the proceedings on administrative offenses. Let's look at them in more detail.
Part 2 of Article 744 of the Administrative Code states that a person in respect of whom proceedings are being conducted on an administrative offense has the right to file a complaint against an order to pay a fine and a decision on an administrative offense.
Part 2 of Article 745 of the Administrative Code establishes the victim's right to appeal a decision in an administrative offense case.
In accordance with Part 5 of Article 746 of the Administrative Code, the legal representatives of an individual against whom proceedings on an administrative offense are being conducted and the victim have the rights and duties provided for by the Administrative Code in relation to the persons they represent. Accordingly, having the procedural rights of the victim or the person against whom the proceedings are being conducted, the legal representative, in accordance with Part 2 of art. 744 and Part 2 of art. 745 of the Administrative Code, has the right to appeal the decision in the case of an administrative offense.
Similarly, the right of a representative of an individual entrepreneur or a legal entity to appeal a decision in an administrative offense case is regulated. For example, Part 3 of Article 747 of the Administrative Code states that representatives of the legal entity in respect of which the case is being conducted and the victim have the rights and duties provided for in the Administrative Code in relation to the persons they represent. In turn, ch. 7 of this article provides that representatives of an individual entrepreneur have the same procedural rights and obligations as representatives of a legal entity within the limits provided for by the Administrative Code.
That is, representing the interests of an individual entrepreneur or a legal entity who is a victim in a case or a person against whom proceedings are being conducted, his representative is endowed with the procedural rights belonging to him, including the right to appeal a decision in an administrative offense case.
Further, Part 1 of Article 752 of the Administrative Code establishes the right of a defender to appeal a ruling on an administrative offense against a defendant.
Part 2 of Article 753 states that the victim's representative has the same procedural rights as the individual or legal entity represented by him within the limits provided for by the Administrative Code. Accordingly, taking into account the content of Part 2 of Article 745 of the Administrative Code, the victim's representative has the right to appeal the decision in the case of an administrative offense issued against the person he represents.
The prosecutor's right to appeal the above-mentioned procedural decisions is also enshrined in a separate article of the Administrative Code. In particular, paragraph 1 of Part 1 of Article 760 of the Administrative Code states that, based on the results of inspections of proceedings in cases of administrative offenses, assessment of the legality of the resolution and other acts, the prosecutor has the right to submit to the body (official) a protest against the decision in the case of an administrative offense or an order on the need to pay a fine.
It should be noted that the allocation of these norms into an independent chapter and, accordingly, the use of the right of these persons to appeal and (or) protest does not detract from their constitutional opportunity to appeal to the court for subsequent review of their case. Thus, in administrative law (tort), there is an additional institutional opportunity to ensure legality in the event of disagreement with the decision taken in the case. That is, the possibility of repeated review of decisions made on complaints about a resolution that has not entered into force. The decision and the order may be appealed to a higher authority (official), and then (or immediately) twice to the courts. This significantly expands the possibilities of protection in the framework of administrative proceedings.
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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