ADMINISTRATIVE PROCEDURAL PROCEDURE CODE OF THE REPUBLIC OF KAZAKHSTAN

of June 29, 2020 No. 350-VI ZRK

Section 1. General provisions

Chapter 1. Legislation of the Republic of Kazakhstan on ministerial procedures and legislation of the Republic of Kazakhstan on administrative legal proceedings

Article 1. Legislation of the Republic of Kazakhstan on ministerial procedures and legislation of the Republic of Kazakhstan on administrative legal proceedings

1. The legislation of the Republic of Kazakhstan on ministerial procedures consists of of this Code and other regulatory legal acts of the Republic of Kazakhstan based on the Constitution of the Republic of Kazakhstan and the conventional principles and rules of international law.

2. Features of implementation of ministerial procedures are established by the laws of the Republic of Kazakhstan.

This Code governs the relations connected with implementation of ministerial procedures in the part which is not settled by the laws of the Republic of Kazakhstan.

3. The procedure for administrative legal proceedings in the territory of the Republic of Kazakhstan is determined by the constitutional laws of the Republic of Kazakhstan, this Code based on the Constitution of the Republic of Kazakhstan and the conventional principles and rules of international law.

In administrative legal proceedings provisions of the Code of civil procedure of the Republic of Kazakhstan are applied if other procedure is not provided by this Code.

Provisions of other laws of the Republic of Kazakhstan regulating administrative legal proceedings are subject to inclusion in this Code.

4. The international contractual and other commitments of the Republic of Kazakhstan, and also normative resolutions of the Constitutional Court and the Supreme Court of the Republic of Kazakhstan are component administrative and administrative procedural law.

Article 2. Application in administrative legal proceedings of the precepts of law prevailing

1. The constitution of the Republic of Kazakhstan has the highest legal force and direct action in all territory of the Republic.

2. In case of contradiction between regulations of this Code and the constitutional law of the Republic of Kazakhstan provisions of the constitutional law are effective.

In case of contradiction between regulations of this Code and other laws provisions of this Code are effective.

3. The international agreements ratified by the Republic of Kazakhstan have priority before this Code. If the international treaty ratified by the Republic of Kazakhstan establishes other rules, than those which are stipulated by the legislation the Republic of Kazakhstan about administrative legal proceedings then are applied rules of the international treaty.

Article 3. The relations regulated by this Code

1. This Code governs the relations connected with implementation of internal ministerial procedures of state bodies, ministerial procedures and also procedure for administrative legal proceedings.

2. Participants of the relations regulated by this Code are state bodies, administrative authorities, officials, and also physical persons and legal entities.

3. The procedure of internal ministerial procedures of state bodies provided by this Code in the part which is not settled by regulatory legal acts of the Republic of Kazakhstan is applied in activities:

1) the President of the Republic of Kazakhstan, state bodies and officials providing activities of the head of state, state bodies, directly subordinate and accountable to the President of the Republic of Kazakhstan;

2) Offices of the First President of the Republic of Kazakhstan - Elbasa;

3) offices of Chambers of Parliament of the Republic of Kazakhstan, Central Election Commission of the Republic of Kazakhstan;

4) devices of the Constitutional Court of the Republic of Kazakhstan, the Supreme Judicial Council of the Republic of Kazakhstan, Security Council of the Republic of Kazakhstan, Supreme Court and offices of courts of the Republic of Kazakhstan;

5) Governments of the Republic of Kazakhstan, Government office of the Republic of Kazakhstan, central executive bodies of the Republic of Kazakhstan and their structural and territorial subdivisions;

6) offices of local representative bodies of the Republic of Kazakhstan;

7) local executive bodies of the Republic of Kazakhstan.

4. The procedure for ministerial procedures established by this Code does not extend to the relations, regulated:

1) criminal procedure, civil procedural legislation of the Republic of Kazakhstan and legislation of the Republic of Kazakhstan on administrative offenses;

2) the legislation of the Republic of Kazakhstan on the Constitutional Court of the Republic of Kazakhstan, on the Supreme Judicial Council of the Republic of Kazakhstan, on the Commissioner for Human Rights in the Republic of Kazakhstan;

3) the budget legislation of the Republic of Kazakhstan regarding procedure of the state and budget types of planning;

4) the Law of the Republic of Kazakhstan "About legal acts" regarding procedure for development, representation, discussion, enforcement and publication of legislative and other regulatory legal acts of the Republic of Kazakhstan;

5) legislation of the Republic of Kazakhstan on elections and republican referendum;

6) the legislation of the Republic of Kazakhstan on foreign intelligence, counterintelligence, operational search activities, and also on safety of protected persons and objects and holding security actions;

7) the legislation of the Republic of Kazakhstan on notariate regarding making of notarial actions;

8) legislation of the Republic of Kazakhstan on return to the state of illegally acquired assets.

The procedure for ministerial procedures established by this Code does not extend to the constitutional powers of the President of the Republic of Kazakhstan and activities of the body providing activities of the Head of state.

5. The action of this Code connected with procedure of ministerial procedures, except for Chapters 12, of 13, of the 14 and 15 of this Code does not extend to the relations regulated by the legislation of the Republic of Kazakhstan on special state bodies.

6. The action of this Code connected with procedure of ministerial procedures, except for Chapters 1, of 2, of 12, of 13, of the 14 and 15 of this Code does not extend to the relations connected with procedure for making of administrative action (failure to act) which is not connected with adoption of the administrative act.

7. Are not subject to consideration according to the procedure of administrative legal proceedings:

1) addresses which procedure for consideration is stipulated by the legislation the Republic of Kazakhstan about the Constitutional Court of the Republic of Kazakhstan;

2) cases which procedure for production is provided by the criminal procedure, civil procedural legislation of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan on administrative offenses.

Article 4. The basic concepts used in this Code

1. The concepts containing in this Code are applied in the following value:

1) the statement - one of address forms containing the petition of the participant of ministerial procedure for assistance in realization of its rights, freedoms and legitimate interests or the rights, freedoms and legitimate interests of other persons;

2) the applicant - person who submitted the appeal to administrative authority, to the official for implementation of ministerial procedure and also person concerning whom the administrative act is adopted is made administrative action (failure to act) (the addressee of the administrative act);

3) the encumbering administrative act - the act refusing realization, limiting, stopping the right of the participant of ministerial procedure or assigning to it obligation, and also otherwise worsening its situation;

4) the administrative act - the decision made by administrative authority, the official in the public relations, exercising the rights established by the laws of the Republic of Kazakhstan and obligation of certain person or individually certain group of people;

5) administrative action (failure to act) - action (failure to act) of administrative authority, the official in the public relations which is not the administrative act;

6) administrative discretion - power of administrative authority, the official to accept in set by the legislation of the Republic of Kazakhstan the purposes and limits one of possible decisions based on assessment of their legality;

7) administrative authority - state body, local government body, the state legal entity, and also other organization which according to the laws of the Republic of Kazakhstan are given authority on adoption of the administrative act, making of administrative action (failure to act);

8) ministerial procedure - the activities of administrative authority, the official for consideration of administrative case, acceptance and execution on it of the decision made based on the address or on own initiative and also the activities performed according to the procedure of the simplified ministerial procedure;

9) the administrative claim (claim) - the requirement which is filed a lawsuit for the purpose of protection and recovery of the violated or challenged rights, freedoms or legitimate interests following from the public relations;

10) administrative case - the materials fixing the course and results of implementation of ministerial procedure and (or) consideration of public dispute in court;

11) competitive environment - subjects of the market, except for subjects of the quasi-public sector;

12) the video message - the individual or collective statement sent to administrative authority, the official, the claim in the video format performed by The Government for Citizens State corporation;

13) video conferencing - service of connection with use of information and communication technologies for interactive interaction of several removed subscribers in real time with possibility of exchange of audio-and video information;

14) monitoring of the transferred functions (further - monitoring) - set of the actions directed to systematic and continuous collection, processing, the analysis and assessment of the functions of the central and (or) local executive bodies transferred to competitive environment this on implementation;

14-1) data - information in the formalized type, suitable for processing;

14-2) authorized body on data management - the central executive body performing management and cross-industry coordination on data management;

15) the defendant - administrative authority or the official to which the claim in court is made;

15-1) authorized body on project management - the central executive body performing management and cross-industry coordination in the sphere of project management;

16) the address - sent to administrative authority or to the official in written (paper and (or) electronic) or oral form, and also in the form of video conferencing, the video message the statement or the claim;

17) accounting of the address - fixation of data on acceptance and consideration of the address and their reflection in the state legal statistical reporting;

18) acceptance of the address - action of administrative authority, the official for adoption of the address of the participant of ministerial procedure;

19) consideration of the address - acceptance by administrative authority, the official within the competence of the decision according to the legislation of the Republic of Kazakhstan;

20) registration of the address - fixing in the accounting information document of short data on contents of the address and assignment of registration number to each arrived address;

21) the favorable administrative act - the act exercising the right of the participant of ministerial procedure or stopping the obligation assigned to it and also otherwise improving its provision;

22) office information - the information created, processed and transferred in case of accomplishment of the state functions, the owner the owner or the user of which is the state;

23) the official - person who according to the laws of the Republic of Kazakhstan is given authority on adoption of the administrative act, making of administrative action (failure to act);

24) authorized body in the sphere of development of system of public administration - the central executive body performing management and cross-industry coordination on carrying out the functional analysis of activities of state bodies and transfer of function of the central and (or) local executive bodies in competitive environment;

25) state body - the organization of the government performing on behalf of the state based on the Constitution of the Republic of Kazakhstan, the laws and other regulatory legal acts of the Republic of Kazakhstan of functions on:

to the publication of the acts determining obligatory rules of conduct;

to management and regulation of the socially important public relations;

to control of observance of the obligatory rules of conduct established by the state;

26) internal ministerial procedure of state bodies - the individual administrative activities of the official or activities of collegiate state body connected with questions of the organization of state body, internal procedure for consideration, passing of in-house documents and internal control behind their execution, the procedure regulating information exchange between state bodies, their structural and territorial subdivisions and officials and also implementation of transfer of the state functions to competitive environment;

27) optimization - package of measures, directed to reducing the number of staff, reducing and (or) expense reallocation of the central and (or) local executive bodies, connected including with transfer of function in competitive environment;

28) contractors of functions of the central and (or) local executive bodies are subjects of entrepreneurship and their consolidation, the self-regulatory and non-governmental organizations performing functions of the central and (or) local executive bodies according to the procedure, established by this Codec;

29) users of functions of the central and (or) local executive bodies (further - users) - physical persons and legal entities;

30) complete transfer of function of the central and (or) local executive bodies - exception of competence of the central and (or) local executive bodies of functions and transfer of their implementation to competitive environment by the self-regulation based on obligatory membership (participation) or at the expense of users;

31) outsourcing of functions of the central and (or) local executive bodies (further - outsourcing) - transfer to competitive environment of functions of the central and (or) local executive bodies for their implementation by the conclusion of agreements;

32) request - request of the participant of ministerial procedure for provision of information on the interesting questions of personal or public nature;

33) the claimant - person who took a legal action in protection of the violated or challenged rights, freedoms, legitimate interests, or person for the benefit of whom claim by the prosecutor, the other person, such authority given the laws of the Republic of Kazakhstan is submitted;

34) the chairman - the judge leading joint consideration of administrative case or considering administrative case solely;

35) the offer - the recommendation of the participant of ministerial procedure about enhancement of the laws and other regulatory legal acts of the Republic of Kazakhstan, activities of state bodies, development of the public relations, improvement social and economic and other fields of activity of the state and society;

36) response - expression by the participant of ministerial procedure of the relation to carried out by the state to domestic and foreign policy, and also to events and the phenomena of public nature;

37) the message - the notification the participant of ministerial procedure about violation of the laws and other regulatory legal acts of the Republic of Kazakhstan, shortcomings of work of state bodies, local government bodies, legal entities with absolute participation of the state and their officials;

37-1) digital transformation - the complex of actions including implementation of digital technologies, reengineering and use of data;

38) the claim - one of address forms containing the requirement of the participant of ministerial procedure about recovery or protection of the rights, freedoms or its legitimate interests or other faces which were violated by the administrative act, administrative action (failure to act);

39) internal control - the control exercised by state body behind execution by its structural and territorial subdivisions, subordinated state bodies and organizations, officials of the decisions made by state body and also requirements of the legislation of the Republic of Kazakhstan.

2. Other special concepts are used in the values determined in the relevant articles of this Code and also other laws of the Republic of Kazakhstan.

Chapter 2. Tasks and principles of ministerial procedures and administrative legal proceedings

Article 5. Tasks of ministerial procedures and administrative legal proceedings

1. Tasks of ministerial procedures are:

complete realization of the public rights, freedoms and interests of physical persons and legal entities;

achievement of balance of private and public concerns in the public relations;

ensuring effective and transparent public administration, including by means of participation of persons in acceptance of management decisions;

digital transformation of public administration;

strengthening of legality in the public sphere.

2. Task of administrative legal proceedings is fair, impartial and timely permission of administrative cases for the purpose of effective protection and recovery of the violated or challenged rights, freedoms and legitimate interests of physical persons, the rights and legitimate interests of legal entities in the public relations.

Article 6. Principles of ministerial procedures and administrative legal proceedings and their value

1. Ministerial procedures and administrative legal proceedings are performed on the basis of the principles stated in this Chapter.

2. The principles of ministerial procedures established in this Chapter are not exhaustive and cannot be obstacle for use of other principles of the right.

3. The principles of civil legal proceedings are applied in administrative legal proceedings if it does not contradict the principles stated in this Chapter.

4. Violation of the principles of ministerial procedures and administrative legal proceedings depending on its nature and materiality attracts recognition of administrative acts, administrative actions (failure to act) illegal, and also cancellation of the taken-out court resolutions.

Article 7. Principle of legality

1. The administrative authority, the official perform ministerial procedures within the competence and according to the Constitution of the Republic of Kazakhstan, this Code and other regulatory legal acts of the Republic of Kazakhstan.

2. The court by consideration and permission of administrative cases shall observe precisely requirements of the Constitution of the Republic of Kazakhstan, the constitutional laws, of this Code, other regulatory legal acts which are subject to application of international treaties of the Republic of Kazakhstan.

3. Courts have no right to apply the laws and other regulatory legal acts violating the rights and freedoms of man and citizen affirmed by the Constitution of the Republic of Kazakhstan. If the court sees that the law or other regulatory legal act which is subject to application violates the rights and freedoms of man and citizen affirmed by the Constitution, it shall suspend production on administrative case and appeal to the Constitutional Court of the Republic of Kazakhstan with idea of recognition of this act unconstitutional. On receipt of the solution of the Constitutional Court of the Republic of Kazakhstan by court proceeedings are resumed.

4. Decisions of the courts, authorized to consider the administrative cases based on the law or other regulatory legal act recognized as unconstitutional are subject to cancellation.

5. In case of lack of the rules of law regulating disputable legal relationship, the court applies the rules of law governing the similar relations, and in the absence of such regulations resolves dispute proceeding from the general beginnings and sense of the legislation of the Republic of Kazakhstan.

Article 8. Concept of justice

1. By consideration of administrative case the administrative authority, the official and court shall, keeping objectivity and impartiality, to provide to each of participants of administrative case equal opportunity and conditions for realization of their rights to comprehensive and complete investigation of circumstances of administrative case.

2. If the law or the agreement of the parties of dispute provide permission of appropriate questions by court, the court shall resolve these questions proceeding from criteria of justice and rationality.

Article 9. Protection of the rights, freedoms and legitimate interests

1. Everyone has the right according to the procedure, established by this Code, to address to administrative authority, to the official or to court behind protection of the violated or challenged rights, freedoms or legitimate interests.

The disclaimer on the appeal to administrative authority, to the official or in court is invalid.

2. State bodies within the competence, physical persons and legal entities according to the procedure, established by this Code having the right to take a legal action with the claim for protection of the violated or challenged legitimate interests of other persons or the uncertain group of people.

The prosecutor has the right to take a legal action with the claim for the purpose of implementation of the obligations assigned to it according to the procedure, established by this Code.

3. If the law establishes pre-judicial procedure for dispute settlement, appeal to the court can be given after observance of this procedure.

4. Can to nobody without its consent be changed the cognizance provided for it by the law.

5. Coercion to disclaimer on the appeal to administrative authority, to the official or in court is illegal and attracts the responsibility established by the laws of the Republic of Kazakhstan.

Article 10. Harmony

1. When implementing administrative discretion the administrative authority, the official provide fair balance of interests of the participant of ministerial procedure and society.

At the same time the administrative act, administrative action (failure to act) shall be proportional, that is be suitable, necessary and pro rata.

2. The administrative act, administrative action (failure to act) are considered suitable if they are acceptable for goal achievement, the Republic of Kazakhstan established by the laws.

The administrative act, administrative action (failure to act) are considered necessary if least limit the rights, freedoms and legitimate interests of the participant of ministerial procedure.

The administrative act, administrative action (failure to act) are considered pro rata if the public benefit received as a result of restrictions of the rights, freedoms and legitimate interests of the participant of ministerial procedure is more than the harm done by these restrictions.

Article 11. Limits of implementation of administrative discretion

1. The administrative authority, the official shall perform administrative discretion in the limits set by the legislation of the Republic of Kazakhstan.

2. Adoption of the administrative act and (or) making of administrative action (failure to act) when implementing administrative discretion shall answer the purpose of this power.

Article 12. Principle of priority of the rights

All doubts, contradictions and ambiguities of the legislation of the Republic of Kazakhstan on ministerial procedures are interpreted for benefit of the participant of ministerial procedure.

Article 13. Protection of the right to trust

1. The trust of the participant of ministerial procedure to activities of administrative authority, the official is protected by the laws of the Republic of Kazakhstan.

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