Overview of Key Provisions of the Administrative Procedural Code of the Republic of Kazakhstan (APC)

From July 1, 2021, the Administrative Procedural and Procedural Code of the Republic of Kazakhstan (hereinafter referred to as the “APC”) will come into effect, regulating relations related to the implementation of internal administrative procedures of state bodies, administrative procedures, as well as the procedure for administrative proceedings.

In connection with the entry into force of the APPC, the currently existing regulatory legal acts, namely, the Law of the Republic of Kazakhstan “On Administrative Procedures”, the Law of the Republic of Kazakhstan “On the Procedure for Considering Appeals of Citizens and Legal Entities”, as well as a number of certain norms of the Code of Civil Procedure of the Republic of Kazakhstan, including chapters 27–29.

We bring to your attention an overview of significant innovations and features of the APPC, the procedure and procedure for considering appeals by officials of government bodies, as well as by the courts.

Principles of administrative procedures and administrative proceedings

The APPC contains a number of additional principles on the basis of which administrative procedures and administrative proceedings are carried out.

The following principles deserve special attention:

• the principle of priority of rights - all doubts, contradictions and ambiguities of the legislation of the Republic of Kazakhstan on administrative procedures are interpreted in favor of the participant in the administrative procedure;
• protection of the right to trust - this principle is expressed in the fact that an administrative act, administrative action (inaction) is considered legal and justified until an administrative body, official or court establishes otherwise in accordance with the legislation of the Republic of Kazakhstan;
• prohibition of abuse of formal requirements - an administrative body or official is prohibited from refusing to implement, limiting, terminating the right of a participant in an administrative procedure, as well as imposing an obligation on him in order to comply with requirements not established by the legislation of the Republic of Kazakhstan;
• presumption of reliability - when carrying out an administrative procedure, materials, objects, documents and information presented by a participant in the administrative procedure are considered reliable until the administrative body or official establishes otherwise;
• active role of the court - the court, not limiting itself to explanations, statements, petitions of participants in the administrative process, 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. The court, on its own initiative or a reasoned request from participants in the administrative process, collects additional materials and evidence, and also performs other actions aimed at solving the problems of administrative proceedings;
• reasonable period of administrative proceedings – administrative proceedings, including the production of certain procedural actions, are carried out within a reasonable time.

The inclusion of these principles indicates that the legislator attaches special importance to the consideration of this category of cases, since the second party to the cases is the state body and its officials.

Features of administrative procedures

Section 2 of the APPC regulates the internal administrative procedures of state bodies, that is, the procedure for organizing activities, exercising control, planning activities, regulations, provisions on state bodies, their competence, powers, functions and tasks performed.

Section 3 of the APPC contains requirements for initiating an administrative procedure, the procedure for receiving, registering, returning an appeal, sending a notification about the consideration of an administrative case, the procedure and possibility of disqualifying an official, considering an administrative case, and terminating an administrative procedure.

Administrative procedure is the activity of an administrative body, an official in considering an administrative case, making and executing a decision on it, carried out on the basis of an appeal or on its own initiative, as well as activities carried out in accordance with a simplified administrative procedure.

The participants in the administrative process are the plaintiff, the defendant, the interested party and the prosecutor.

The grounds for initiating an administrative procedure are the appeal and/or initiative of an administrative body or official.

The administrative procedure consists of the following stages:

• initiation of administrative proceedings;
• consideration of an administrative case;
• adoption of an administrative act;
• execution of an administrative act.

One of the features of the APPC is that a participant in an administrative procedure has the right to authorize the conduct of his administrative affairs to another person by verbally announcing this to the administrative body or official. In this case, the administrative body or official formalizes the authority of the representative in writing, which is signed by the represented person.

The term of the administrative procedure initiated on the basis of an appeal is fifteen working days from the date of receipt of the appeal, unless otherwise provided by the laws of the Republic of Kazakhstan. The duration of the administrative procedure initiated on the basis of an appeal is calculated from the moment of its initiation.

Having considered the administrative case, the administrative body or official makes one of the following decisions:

• adoption of an administrative act;
• termination of the administrative procedure.

The APPC provides for the possibility of canceling both illegal and legal administrative acts.

Violation of the legislation of the Republic of Kazakhstan on administrative procedures is grounds for declaring an administrative act illegal, if such a violation led or could lead to the adoption of an incorrect administrative act.

An administrative act adopted on the basis and in accordance with the requirements of the legislation of the Republic of Kazakhstan is considered legal.

A legally burdensome administrative act may be canceled by an administrative body or official, except in cases where the cancellation of such an act is prohibited by the laws of the Republic of Kazakhstan.

A lawful favorable administrative act may be canceled in cases where:

• the possibility of canceling an administrative act is provided for by the laws of the Republic of Kazakhstan and the administrative act;
• an administrative act was adopted with a condition, and this condition was not fulfilled or was fulfilled in an improper way.

An administrative act is subject to execution by the administrative body or official who adopted it, unless otherwise established by the laws of the Republic of Kazakhstan. An administrative act is subject to execution within five working days, unless otherwise established by the laws of the Republic of Kazakhstan or an administrative act.

The 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, and explaining the rationale in the response if the complaint is not satisfied. For this purpose, the administrative body is vested with the authority to collect evidence, request necessary materials from the competent authorities, invite specialists, and so on.

Appealing an administrative act to a higher authority before going to court is mandatory in order to improve departmental control.

Peculiarities of administrative proceedings Administrative proceedings are carried out by specialized district and equivalent administrative courts. At the same time, some categories of cases will be considered by the Supreme Court of the Republic of Kazakhstan and the court of the city of Nur-Sultan according to the rules of the court of first instance.

In accordance with the Decree of the President of the Republic of Kazakhstan dated January 26, 2021, specialized interdistrict administrative courts were established. And the existing specialized administrative courts that hear cases of administrative offenses have been renamed specialized interdistrict administrative courts for administrative offenses.

Courts, through administrative proceedings, have jurisdiction over disputes arising from public law relations.

The main distinguishing feature of the new type of legal proceedings - administrative - from civil ones will be the increased activity of the court in the process of collecting evidence. Guided by this principle, the court will clarify the circumstances of the case, regardless of the requests of the parties. If the evidence presented by the participants in the administrative process is insufficient, the court collects it on its own initiative.

In addition, the burden of proof rests with the administrative body that adopted the administrative act.

In an administrative court, an administrative case is initiated on the basis of a claim.

Plaintiffs may bring the following types of claims to court:

• a claim to challenge the administrative act in full or in any part.
• a claim for coercion, where the plaintiff may demand the adoption of a favorable administrative act, the adoption of which was refused or not adopted due to the inaction of an administrative body or official.
• a claim for the commission of an action, where the plaintiff may demand to perform certain actions or refrain from such actions that are not aimed at adopting an administrative act.
• a claim for recognition, where the plaintiff may demand recognition of the existence or absence of any legal relationship if he cannot file a claim in accordance with Articles 132, 133 and 134 of the APC.

An administrative case is considered and resolved within a reasonable time, but not more than three months from the date the claim was filed. In administrative cases of particular complexity, this period may be extended by a reasoned ruling of the court for a reasonable period, but not more than three months.

An administrative case in a court of appeal must be considered and resolved within a period not exceeding three months from the date of its receipt by the court, and in a cassation instance within a period of no more than six months.

The procedure for appeal and cassation appeal of a court decision in an administrative case is determined by the rules of the Civil Procedure Code of the Republic of Kazakhstan, unless otherwise established by the APC.

The APPC introduces the institution of judicial control over the execution of judicial acts. Thus, the Code provides for the possibility of repeated application by courts of monetary penalties, as a type of procedural coercion, in order to ensure timely execution of their demands.

A court decision obliging the defendant to pay a sum of money that is not executed voluntarily is enforced on the basis of a writ of execution, which is issued at the request of the plaintiff.

We hope this review will be useful to you. If you have any questions, please let us know - we will be happy to answer you.

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Author:Department of Judicial Practicelegal firm "GRATA International".