March 31, 2021
Administrative Procedural and Process-Related Code of the Republic of Kazakhstan
- The principles stipulated by the Administrative Procedure Code of the Republic of Kazakhstan
- Administrative procedure
- Pre-trial appeal of an administrative act
- Administrative proceedings
- Terms of consideration of the administrative case
On June 29, 2020, the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (hereinafter – APPC) was adopted, which will enter into force on July 1, 2021 and from the same date, the current Laws of the Republic of Kazakhstan “On Administrative Procedures” and “On the Procedure for Considering Appeals of Individuals and legal entities “, a number of norms of the Civil Procedure Code of the Republic of Kazakhstan, including chapters 27-29, norms of other codes and laws will be terminated. This is a completely new code for the legal system of Kazakhstan, the purpose of which is to protect the rights of citizens and legal entities in disputes with state bodies, to maintain a balance of interests of the parties, as well as to improve the quality of managerial decision-making.
1. The principles stipulated by the Administrative Procedure Code of the Republic of Kazakhstan
The principle of protection of the right to trust.
The confidence of a participant in an administrative procedure in the activities of an administrative body, an official is protected by the laws of the Republic of Kazakhstan.
An administrative act, an administrative action (inaction) are considered legal and justified until the administrative body, official or court establishes the opposite in accordance with the legislation of the Republic of Kazakhstan.
Losses incurred by a bona fide participant in an administrative procedure as a result of the cancellation of an administrative act, the commission of an administrative action (inaction) are subject to compensation in accordance with the provisions of this Code and (or) the civil legislation of the Republic of Kazakhstan.
The principle of proportionality.
Measures providing for any restriction of the rights and freedoms of individuals or legal entities must be aimed at the goals established by the Constitution and laws and must be proportionate, that is, be appropriate, necessary and proportional to achieve their goal, taking into account their content, place, time and covered circle of persons.
This principle is applied when exercising administrative discretion (discretionary power).
The principle of the prohibition of abuse of formal requirements.
This principle means that the administrative body is prohibited from imposing obligations on persons or refusing to grant them any right only for the purpose of satisfying additional formal requirements, including internal organizational rules not provided for by regulatory legal acts.
Presumption of certainty
An administrative body, an official is obliged to independently verify the authenticity of materials, objects, documents and information in case of doubt about their authenticity.
Active role of the court
Administrative proceedings are carried out on the basis of the active role of the court.
The court, not limited to explanations, statements, petitions of the participants in the administrative process, the arguments presented by them, evidence and other materials of the administrative case, comprehensively, fully and objectively examines all the factual circumstances that are important for the correct resolution of the administrative case.
2. Administrative procedure
APPK differentiates administrative procedures into external procedures related to the adoption of an act or the performance of an action (inaction) that has external legal consequences, and internal procedures related to the establishment of order and ensuring the activities of a state body or a subordinate structure.
The administrative procedure consists of the following stages:
1) excitement;
2) consideration of an administrative matter;
3) adoption of an administrative act;
4) execution of an administrative act.
At any stage of the administrative procedure, a citizen and an organization have the right: 1) to conduct their affairs through a representative (Article 68 APPC); 2) declare a challenge to the interested official (article 67 APPC); 3) be heard before the adoption of the administrative act (Article 73 APPC); 4) to get acquainted with the materials of the administrative case, make extracts and make copies after the consideration of the administrative case (Article 75 of the APPC); 6) receive an explanation from the administrative body about his rights and obligations on issues related to the implementation of the administrative procedure; 7) lodge a complaint against an administrative act (Article 91 of the APPC); 8) terminate the administrative procedure if the procedure was initiated upon his request (Article 89 of the APPC); 9) speak in the administrative procedure in the native language or the language that he speaks, use the services of an interpreter (paragraph 9 of Article 23 of the APPC).
The total term of the administrative procedure initiated on the basis of the appeal is fifteen working days, unless otherwise provided by the legislation of the Republic of Kazakhstan.
3. Pre-trial appeal of an administrative act
An administrative act, an administrative action (inaction) of an administrative body may be appealed by the applicant to a higher administrative body.
APPC regulates in detail the procedure for considering complaints, establishing additional requirements for administrative bodies, in particular, hearing all interested parties, examining all the circumstances of the case, explaining the reasons for the response in case of dissatisfaction with the complaint. For this, the administrative body is empowered to collect evidence, request the necessary materials from the competent authorities, invite specialists, etc.
Appealing an administrative act to a higher authority before going to court is mandatory in order to improve departmental control.
Benefits:
The proceedings on the consideration of the complaint will take place in a relatively expedited manner (15 working days, when, as the process of considering disputes in court, it can take months). This institute will save time and avoid legal costs.
Pre-trial contested decisions can be checked not only for legality, but also for expediency, which will provide greater legal protection to citizens.
Currently, the courts can check the decision of a state body, an official only for the purpose of legality.
4. Administrative proceedings
Disputes arising from public law relations will be resolved by way of administrative proceedings.
An important difference between an administrative process and a civil one is that in a civil procedure, the collection and presentation of evidence is carried out by the parties and the court is limited to considering the evidence presented.
In the administrative process, the court will take the initiative to collect evidence, having the opportunity to request all the documents necessary for the correct resolution of the case.
The burden of proof rests with the administrative body that adopted the administrative act.
APPK provides for the following types of claims:
1) a claim for challenging;
2) a lawsuit for compulsion;
3) a claim for the commission of an action;
4) a claim for recognition.
Judicial control is established over the execution of court decisions. In the event that the administrative body fails to comply with the court decision, the court has the right to impose sanctions in the form of a monetary penalty on any official at the request of the plaintiff.
5. Terms of consideration of the administrative case
Consideration of an administrative case in a court of first instance provides for a reasonable time frame, but not more than six months from the date of filing a claim, which are determined by the court independently, taking into account the legal and factual complexity of the administrative case, the sufficiency and effectiveness of the court’s actions (presentation of evidence, adoption of security measures, appointment expertise, etc.), carried out for the purpose of operational consideration of an administrative case.
Consideration of an administrative case in a court of appeal – two months, and one month for a cassation appeal.
Civil claims for compensation for damage caused by an administrative act or an action of an administrative body are also considered by an administrative court in the framework of the main proceedings on challenging an administrative act or actions of an administrative body.
