December 9, 2021
Stages of the administrative procedure according to the Administrative procedural procedural code of the Republic of Kazakhstan
1. General Provisions
In connection with the adoption of the Administrative Procedure Code of the Republic of Kazakhstan (hereinafter – APPK):
– the law “On Administrative Procedures” has become invalid;
– the law “On the Procedure for Considering Applications of Individuals and Legal Entities” was canceled;
– created specialized administrative courts in regions and cities of republican significance;
– the former administrative courts, which considered cases about adm. offenses renamed to courts by admin. offenses;
– the specifics of the implementation of administrative procedures are established by the laws of the Republic of Kazakhstan;
– APPK regulates relations related to the implementation of administrative procedures in the part not regulated by the laws of the Republic of Kazakhstan.
2. Stages of the administrative procedure:
2.1. EXCITATION OF ADMINISTRATIVE PROCEDURE
Grounds: appeals of a person or at the initiative of an administrative body (for example, an unscheduled inspection).
Feature: any appeal filed with a state body is subject to mandatory acceptance, registration, accounting and review. In case of revealing any deficiencies or improper registration, the administrative body explains these deficiencies and provides time for correction. Refusal to accept the application is prohibited. In this case, the period for correcting deficiencies is included in the general period for considering the appeal.
Methods of contacting an administrative body: written form, electronic form, personal reception; an oral appeal (entered into a separate protocol by the official who accepted the appeal).
An appeal to an administrative body, to an official can be submitted by one or several persons (collective appeal).
If the appeal was received by an administrative body, whose powers do not include the consideration of this appeal, in term no later than three working days redirected to the authorized administrative body, with the simultaneous notification (notification) of the participant in the administrative procedure.
2.2. CONSIDERATION OF THE ADMINISTRATIVE CASE
The term of the administrative procedure initiated on the basis of the appeal is 15 business days. The term for consideration may be extended by a reasoned decision of the head of the administrative body or his deputy for a reasonable period, but not more than two months, about which the participant in the administrative procedure is notified within three working days from the date of the extension.
For an unjustified extension of the term of the administrative procedure, the person authorized to make a decision shall bear disciplinary and other liability in accordance with the laws of the Republic of Kazakhstan.
Investigation of the factual circumstances of an administrative case (Art.72 APPC) – inquisition principle
The administrative body is obliged to take measures for a comprehensive, complete and objective study of the factual circumstances that are important for the correct consideration of the administrative case (research principle). Participants have no formal right to apply for examination of evidence. But within the framework of their right to be heard, they can only propose the collection and examination of certain evidence.
If in this case the administrative body does not support these proposals, then at least it is obliged to dwell on these proposals in justifying the administrative act. But it is permissible if the evidence is irrelevant, inadmissible, redundant due to obviousness, when it is inappropriate or unattainable.
The administrative body, the official are not bound by the arguments, the actual circumstances of the administrative case and check the administrative case in full.
An administrative body, an official has the right to collect evidence on their own initiative in order to establish the factual circumstances of the administrative case.
An administrative body, an official does not have the right to refuse to study applications and documents submitted by participants in the administrative procedure, the consideration of which is within their competence.
The administrative body uses all means of proof, in particular, it can:
– to receive reference information of any nature;
– to hear participants, to interrogate witnesses and experts, to receive written or electronic statements of participants, witnesses, experts;
– to involve written documents and case materials;
-conduct an inspection.
1) conduct their affairs through a representative (Article 62 of the Code);
2) declare a challenge (Article 63 of the Code);
3) be heard (Article 74 of the Code);
4) to get acquainted with the materials of the administrative case, make extracts and make copies (Article 75 of the Code);
The addressee and other participants in the administrative procedure must be familiar with all documents and materials of the case before the completion of the consideration of the administrative case. Upon request, materials for review are provided within 3 working days.
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 Code);
APPK provides for mandatory pre-trial appeal of an administrative act.
8) terminate the administrative procedure if the procedure was initiated upon his request (Article 89 of the Code);
9) speak in the administrative procedure in the native language or the language that he speaks, use the services of an interpreter (clause 9 of Article 23 of the Code).
At the stage of consideration of the case, a hearing is held.
An official is obliged to provide an opportunity for a participant to express his position on a preliminary decision on an administrative case, about which the participant in the administrative procedure is notified in advance,but no later than three working days before the adoption of an administrative act
Hearing can be carried out by:
– inviting a participant in an administrative procedure to a hearing in an administrative case, including through videoconferencing or other means of communication;
– use of information systems;
– other means of communication, allowing a participant in the administrative procedure to state their position.
However, the hearing stage may not apply if:
– an administrative body, an official adopts a favorable administrative act that does not affect the rights, freedoms and legitimate interests of other persons;
– enforcement proceedings are carried out;
– the legislation of the Republic of Kazakhstan establishes less than three days for the implementation of the administrative procedure;
– the immediate adoption of an administrative act is required in order to protect the rights and freedoms of citizens and legal entities, public and (or) state interests;
– a participant in the administrative procedure applies for this;
– a simplified administrative procedure is carried out;
– a decision on an administrative case is made during the implementation of an automated process, while an administrative body, an official is not endowed with administrative discretion.
A participant in an administrative procedure has the right to submit or raise an objection to a preliminary decision in an administrative case within two working days from the day it was received.
If a participant in the administrative procedure verbally expresses his objection, the administrative body, the official shall keep the minutes of the hearing.
If a protocol is drawn up, the official is obliged to provide the participant in the administrative procedure with the opportunity to familiarize himself with the protocol of the hearing.
Participant within three working days after familiarization, he has the right to submit his comments to the minutes of the hearing.
Simplified administrative procedure.
Applies to the consideration of messages, suggestions, responses and requests.
Based on the results of the consideration of an administrative case in a simplified administrative procedure, one of the following decisions is made on:
1) providing a response, including information, on the merits of a message, proposal, response, request;
2) taking note;
3) termination of the simplified administrative procedure.
It is necessary to distinguish messages, suggestions, responses and requests from statements and complaints. Statements and complaints give rise to certain legal consequences for the citizen and the organization. Statements and complaints either exercise the right or refuse to exercise it.
2.3. ACCEPTANCE OF THE ADMINISTRATIVE ACT
An administrative act is a decision that is taken unilaterally and gives rise to legal consequences (in the form of exercising a right or imposing certain obligations) for individuals or legal entities.
A favorable administrative act improves the position of a citizen, for example, it realizes the right of a participant in an administrative procedure or terminates the obligation imposed on him.
On the contrary, a burdensome administrative act worsens the position of a citizen, for example, refuses to exercise his right, restricts, terminates the right of a participant in an administrative procedure, or imposes a duty on him.
Important! Any unfavorable act must contain justification. Since in court the defendant (state body) can refer only to those grounds that are mentioned in the administrative act, in accordance with paragraph 3 of Article 129 of the APPC.
2.4. ENTRY INTO FORCE OF THE ADMINISTRATIVE ACT
An administrative act comes into force from the moment of its adoption, unless a later date is specified in it.
An administrative act is put into effect from the moment it is brought to the attention of the participant in the administrative procedure.
2.5. APPEALING THE ADMINISTRATIVE ACT (optional stage)
APPC provides for mandatory pre-trial appeal, unless otherwise provided by law.
The complaint is filed with the administrative body, whose administrative act, administrative action (inaction) is being appealed.
During three working days the administrative body can change its decision, uphold the complaint, or redirect the complaint to a higher authority for consideration on the merits.
Filing a complaint suspends the administrative act
The term for consideration of the complaint is 20 working days no possibility of renewal
Who handles the complaint?
– a higher administrative body / official;
– another administrative body / official authorized in accordance with the laws of the Republic of Kazakhstan to consider complaints (for example, commissions);
– exception (President, Prime Minister, Government);
In the absence of a superior administrative body / official, an administrative act, an administrative action (inaction) can be appealed immediately in court.
At the appeal stage, the applicant also has the right to be heard (right to hearing).
Decision on complaint:
1) on cancellation of an administrative act
2) on cancellation of an administrative act and adoption of a new administrative act
3) on the commission of an administrative action
4) on dismissal of the complaint
5) on the direction of the administrative case to the administrative body, to the official whose administrative act, administrative action (inaction) is being appealed, for the implementation of the administrative procedure, indicating the violations and proposals for their elimination
6) on leaving the complaint without consideration.