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Comment to article 816. The decision of the body (official) taken in preparation for the consideration of the case of an administrative offense The Code of the Republic of Kazakhstan on Administrative Offences
1. When preparing for the consideration of an administrative offense case, the body (official) makes the following decision:
1) on the appointment of the time and place of consideration of the case;
2) summoning persons, requesting the necessary additional materials on the case, and appointing an expert examination, if necessary;
3) to postpone the consideration of the case;
4) on the transfer of the protocol on an administrative offense and other case materials for consideration by jurisdiction, if the consideration of this case does not fall within its competence or a ruling has been issued on the recusal of a judge or official.;
5) on the transfer of the case for consideration on the merits in accordance with Article 812 of this Code.
2. The decisions provided for in the first part of this article are made in the form of a ruling.
3. Excluded by the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI
4. The body (official) authorized to consider cases of administrative offenses, having established that there are two or more cases initiated against the same person, has the right to combine these cases into one proceeding for joint consideration.
5. When preparing for the 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 four of Article 744, part six of Article 746 and part five of Article 754 of this Code, the body (official) considering the case has the right to make a ruling on the drive of the specified persons.
Part 1. As a general rule, when preparing for the consideration of an administrative offense case, the following issues are resolved::
1. On the appointment of the time and place of consideration of the case. As a rule, the time for the trial is determined in such a way as to ensure the appearance of all persons summoned, as well as to contribute to the creation of the most favorable conditions for a comprehensive, complete and objective consideration of the case.
The place of consideration of an administrative offense case is determined according to the rules of art. 812 of the Administrative Code.
2. About summoning persons, requesting the necessary additional materials on the case, and appointing an expert examination, if necessary. The official is obliged to carefully study the list of persons to be summoned for consideration of the case. The person being held accountable and the victim are in all cases subject to summons. The legal representative of the minor must be called. An expert is called in cases where an expert examination has been ordered according to the circumstances of the case. A specialist is called in cases where special knowledge is needed on issues that do not require expert examination. An interpreter may be called in cases where there is a need for translation or sign language translation during proceedings on an administrative offense. When the absence of these persons prevents a comprehensive, complete, objective and timely clarification of the circumstances of the case and its resolution in accordance with the law, and may also lead to a postponement of the case due to the failure of these persons to appear without a valid reason, their summons is applied.
3. Postponement of the consideration of cases. Some participants in the proceedings on administrative offenses have the right to file a motion for adjournment of the case. In such cases, an appropriate definition is made. It is also possible to postpone the consideration of a case if it is necessary for a person participating in the consideration of the case to appear, request additional materials on the case, or appoint an expert examination.
4. On the transfer of the protocol on an administrative offense and other case materials for consideration by jurisdiction, if the consideration of this case does not fall within its competence or a ruling has been issued on the recusal of a judge or official. Making such a determination is possible in cases where the consideration of the case does not fall within the competence of the body (official) or a ruling has been issued on the recusal of the official.
Since Chapter 43 of the Administrative Code establishes the rules for the consideration of cases of administrative offenses by bodies (officials), the word "judges" must be deleted from paragraph 4) of Part 1 of the commented article.
5. On the transfer of the case for consideration on the merits in accordance with art. 812 of the Administrative Code.
Part 2 of the commented article states that the decision provided for in Part 1 of Article 816 of the Administrative Code is made in the form of a ruling.
It should be noted that in the form of a definition, decisions are made that are procedural in nature and do not affect the merits of the case. The issuance by an official of a ruling on the appointment of the time and place of consideration of an administrative offense case implies that the case has been fully and properly prepared, that is, the stage of preparation for consideration of an administrative offense case is considered completed, and the next stage of proceedings on an administrative offense case begins - the direct consideration and resolution of the case on the merits at the appointed time. and in the designated place with the participation of the persons specified in the definition . All these stages form a single stage of administrative proceedings - consideration and resolution of the case on the merits.
Part 4. An official, having established that there are two or more cases initiated against the same person, has the right to combine these cases into one proceeding for joint consideration. Such an opportunity is the right of the person considering the case, which may not be realized by him. In this case, each case against the same person being held accountable will be considered separately.
Law enforcement officials have repeatedly raised the issue that when several facts of an administrative offense were identified by the same person for the same administrative offense, one protocol on an administrative offense was drawn up indicating all the facts of the administrative offenses committed, by analogy with criminal legislation. However, the introduction of such an institution in the Administrative Code is impractical, since this is due, firstly, to short deadlines, secondly, to the incommensurability of the number of administrative offenses committed annually (4 million cases) with criminal ones, and thirdly, to the impossibility of combining cases scattered geographically. The latter may be used by individuals to avoid administrative liability due to the expiration of the statute of limitations.
Part 5. When preparing for the consideration of an administrative offense case, the issue of a drive may be resolved. As follows from the content of the part under consideration, the definition is made in exceptional cases for certain categories of cases. The definition of a drive is executed by the internal affairs body (police).
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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