CHAPTER 5
ROMAN PODOPRIGORA
ИСТОЧНИК: INTRODUCTION TO THE LAW OF KAZAKHSTAN / EDITED BY ZHENIS KEMBAYEV. - KLUWER LAW INTERNATIONAL. 2012. P.73-87.
INTRODUCTION
Administrative Law of RK is one of the fundamental branches of the Kazakhstani legal system and is a part of its public law. It is a relatively new development since Kazakhstan's territory was long under the administration of the Russian Empire then the USSR. Thus, all issues of government were decided by the bodies of tsarist and later Soviet state administration. The most substantial impact for the creation and development of this branch was made throughout the Soviet period. During this time, Administrative Law was formed as a separate branch with its own subject matter and system. Certainly, Administrative Law was influenced by the Soviet legal and political system. It was a branch of law designed around the state authorities and not for individuals or their associations. Its nature was affected by strong ideological influences, administrative centralization, domination of state interests, neglect of individual rights, formal existence of laws and real force of sub-law acts. The modern Administrative law of Kazakhstan continues to reflect the dramatic effects of its Soviet past. For an extensive period of time, Administrative Law was considered as a branch of law exclusively focused on state administration. Taking into account that during the Soviet period the state interfered in nearly all aspects of social life, Administrative Law covered a significant number of administrative issues in both public and private life. The Soviet system did not recognize the concept of separation of powers and Administrative Law governed the activity of all state bodies Due to the supremacy of state authorities and the full subordination of individuals and public associations to the state, Administrative Law did not govern issues related to administrative justice and administrative procedures. After the collapse of the Soviet Union, a new system of political organization, which recognized the principle of separation of powers, was adopted in Kazakhstan. For the first time in its legal history, provisions involving the separation of powers, the priority of individual rights and the equality of state-owned and private property emerged. Administrative Law began to regulate the activities of executive bodies, attempting to ensure individual rights in public administration and control of state bodies and their liability. Today, there is still no clear definition of the subject matter of Administrative Law. Most frequently, this branch of law is connected with the realization of executive power and other forms of state administration (e.g., local self-government). Also, Administrative Law covers internal relations within other branches of the state power (legislative and judicial) and encompasses judicial activity relate-to administrative offense cases.[1] It is necessary to note the trend that the traditional view of Administrative Law as the law of state administration (or the law only for state administration) is changing. Increasingly, Administrative Law is now considered to be a branch that protects private persons in their relations with state administration and creates an effective regime of mutual relations between the state and private persons Furthermore, the imperative method (which is based on the dictate of the state bodies over subordinated persons and was traditionally used by Administrative Law) is being increasingly supplemented by the contractual method since the state more and more employs agreements and other non-power instruments of social regulation. In the contemporary political and legal regime, Administrative Law elaborated new fundamental principles such as: (a) the rule-of-law principle, implying that all state administrative activity must be in accordance with the law (there are still significant problems in this regard due to the fact that state officials often rely on bureaucratic and hierarchic orders rather than the law); (b) the principle of lawfulness, meaning that executive bodies and other bodies of state administration may issue their acts only in accordance with legislation; (c) the principle of determined competence of state bodies implying that all authorities of state bodies must be defined in legislation or in other regulatory acts (in other words, any actions no: specifically authorized by law are prohibited); (d) the principle of mutual responsibility meaning that in the modem legal approach both individuals and state bodies are held responsible for their actions (which is quite different from the Soviet era. when state bodies were always presumed to be in the right); (e) the principle of judicial defense stipulating that all individuals and public associations are entitled judicial protection of their rights and interests (this protection must be guaranteed by the state due to the inequality of participants of Administrative Law relations).
Sources, System and Relationship with Other Branches of Law
Thе main source of Administrative Law is the Constitution of RK, which establishes many provisions directly and indirectly related to state administration.[2] To sources of Administrative Law also belong: (a) legislative acts;[3] (b) decrees of the President of RK and regulatory acts of the central executive bodies (resolutions of the Government of RK, orders of Ministries, etc.); (c) regulatory resolutions of the Supreme Court of RK, which summarize judicial practices regarding different administrative law issues (and exemplify the penetration of the common law principle of stare decisis into the Kazakhstani legal system); (d) regulatory resolutions of the Constitutional Council of RK; and (e) international treaties ratified by RK (e.g., treaties on visa, road traffic and security issues). The system of Administrative Law includes two parts: general and special. The general part governs issues related to the following: (a) subjects of this branch (viz. individuals, organizations, state administration bodies and state officials); (b) legal forms and methods of the state administration's actions; and (c) administrative procedures. The special part regulates the issues of state administration of various branches of the economy as well as political, social and cultural activity. As to the relationship with other branches of law, Administrative Law is very close to the Constitutional Law, as it plays a crucial role in the implementation of -any constitutional provisions. At the same time, Constitutional Law serves as a foundation for Administrative Law, since it establishes a legal framework for the activity of state bodies, stipulates the fundamental rights and duties of individuals in state administration and provides guarantees against illegal activity by the state. Moreover, a part of Administrative Law is devoted to issues of administrative offenses and liability, and in this sense it is similar to Criminal Law. Also, Administrative Law plays a significant role as the basis of other branches like Financial Law, Tax Law and Customs Law. Furthermore, it is very important with respect to the branches that combine public and private law provisions (such as Banking Law, Insurance Law and Land Law, where there are many rules with an administrative nature related to licensing, certification, state permissions and administrative liability). Although Civil Law and Administrative Law are diametrically different from each other, they may regulate similar relations associated with property, family and the economy. The major difference is found in the method of regulation; while Civil Law uses the contractual method, Administrative Law employs the imperative method. The same applies to Labor Law (e.g., the labor activity of state servants is regulated by both Administrative Law and Labor Law; however, each uses its own method of regulation).
II. SUBJECTS OF ADMINISTRATIVE LAW
For an «individual» to participate in Administrative Law relations, the following legal characteristics must be met: first, legal capacity (which starts from birth) and second, the dispositive legal capacity (which arises at the age of 18).[4] The central element of an individual's status under Administrative Law is constituted by his rights and duties within the domain of state administration. Many of these rights and duties are constitutional in nature and Administrative Law acts frequently as the instrument for the further realization of constitutional provisions since its norms provide their detailed elaboration.[5] However, Administrative Law may also restrict constitutional rights and freedoms.[6] It should also be noted that foreigners and persons without citizenship have a special status under Administrate Law,[7] which involves a number of administrative limitations applicable to them.[8] Administrative Law provides certain guarantees of the rights and freedoms of individuals. One of the most important of them is the right of an individual to submit complaints to superior state bodies or officials. Complaints may be submitted within three months after the violation and subsequently must be resolved by superior bodies or officials within 15 to 30 days. In the case of the absence of such bodies or officials, complaints may be submitted to the court.[9] The concept of an «organization» is of a very general meaning and covers all collective subjects of Administrative Law. Unlike Civil Law, both legal entities and organizations without legal entity status can be subjects of Administrative Law.[10] Legal abilities of organizations arise from the moment of their registration at the Ministry of Justice of RK (or its territorial divisions). The status of organizations and the registration procedures depend on the type of organization (state-owned or private, commercial or non-commercial, etc.).[11] Furthermore, Administrative Law also governs some issues of both voluntary and compulsory liquidation of organizations (which are generally covered by Civil Law) due to the fact that certain reasons for termination of an organization are of a public nature such as invalid registration; systematic violation of the charter provisions; activity prohibited by legislation or conducted without license). Administrative Law establishes the rights and duties of organizations. Thus, organizations can apply to state bodies, obtain information, submit appeals and participate in public hearings organized by state authorities. Moreover, Administrative Law provides guarantees aimed to protect organizations' rights and interns. These guarantees include, inter alia, the existence of special bodies (such is anti-monopoly and procurator offices) and the right to submit appeals to superior bodies or to the court. Special attention is given to the protection of rights during state inspections or other state controls.[12] As for the obligations of organizations vis-a-vis state administration, some duties exist for all of them (e.g., they must submit reports to different state bodies such as tax and statistics agencies) while others only for specific types of organizations (e.g., public foundations have to publish reports in the mass media about their activities while banks and insurance companies must make their balance sheets public). Furthermore, all organizations are obliged to fulfill various rules in the spheres related to public order and safety (such as sanitary, fire-prevention, ecological, construction, tax. etc.). In addition, it should be noted that currently there are 105 licensable types of activities, and organizations must obtain a license in order to exercise those activities.[13]
B. State Administration Bodies
The most important of the state administration bodies is the President of RK. Despite the fact that the President is not formally included in the executive branch of state power, he plays a significant role in determining the composition of executive power and many other issues related to its activities. Furthermore, the system of state administration bodies includes: (1) the bodies of executive power: and (2) the bodies that do not formally belong to the executive branch but nevertheless fulfill different administrative functions. The bodies of executive power include: (a) the Government; (b) the executive bodies subordinated and accountable to the President (the so-called presidential bodies); (c) the ministries; (d) the central executive bodies that do not belong to the Government (the agencies); and (e) the local executive bodies. The status of the Government and the local executive bodies is dealt with in Chapter on «Constitutional Law,»which exemplifies the close relationship between the branches of Constitutional and Administrative Law. Thus, this current section will provide a description of the presidential bodies, the ministries and the agencies. Presidential bodies are executive bodies which are not subordinate to the Government but directly report to the President. These bodies include the Committee of National Security, the National Bank, the State Service Agency, the Financial Police Agency and the Foreign Intelligence Service Syrbar. The President decides all issues regarding such state bodies. He may create and terminate the Presidential bodies (except for the National Bank and the Committee of National Security, the existence of which is stipulated by the Constitution); define their structure; appoint their heads (with the Chairpersons of the National Bank and the Committee of National Security requiring the approval of the Senate) and dismiss them. However, the President does not have the right to terminate their acts (orders, resolutions). Only the respective body itself and the court have such authority. A ministry is the most traditional organizational unit in the system of state administration. The number of ministries is subject to constant change.[14] In principle, the ministries are created and terminated by the President. However, the existence of certain ministries is mentioned in the Constitution (the Ministry of Foreign Affairs, the Ministry of Internal Affairs, the Ministry of Defense and the Ministry of Justice). The ministers of these four ministries are appointed by the President at his own discretion. All other ministers are also appointed by the President but at the proposal of the Prime Minister. The President may release all ministers from their offices at his own discretion. The ministries are subordinated not only to President but also to the Government. The heads of the ministries are members of the Government, and the Government approves each ministry's regulations. A ministry may issue orders which may be terminated by the ministry itself, the Government or the court. The status of an agency is very similar to that of a ministry. The only important difference is that the chairpersons of agencies are not members of the Govemment.[15] The other central state administration bodies that do not belong to the Government include: (a) the departments (mekeme, vedomstvo); (b) the cabinet divisions (apparat); (c) the advisory-consultative bodies; and (d) special state commissions. The departments are large structural divisions of the ministries or presidential bodies with their own legal status. As a rule, these departments implement control and supervision functions in the framework of the respective ministry or the presidential body. Examples of such departments include the Tax Committee of the Ministry of Finance, the Road Police Committee of the Ministry of Internal Affairs, the State Sanitary-Epidemiological Committee of the Ministry of Health and the Border Troops Department of the National Security Committee. As a whole, there are about 70 departments in the state administration structure. They are created and terminated either by the Government or the President (depending upon the respective department). Heads of the departments are appointed by the Minister or the President. Their acts are issued in the form of orders which can be terminated by the department itself, the respective Ministry or the court. The cabinet divisions are bodies that support the activity of the executive and other bodies (e.g., the Chancellery of the Prime Minister or the cabinet of an «Akim»). They also fulfill certain administrative functions (e.g., the Chancellery of the Prime Minister may inspect state bodies). The advisory-consultative bodies such as the Security Council, the Council on Legal Policy and the Council on Religious Affairs may exist under both the President and the Government. Despite their advisory status, these bodies can also carry out administrative competences related to issuing obligatory instructions to different state bodies or inquiring for information. Special state commissions (permanent or temporary, with or without participation of civil society representatives) deal with certain administrative functions such as the protection of minors' rights and army conscription (e.g., the Commission on the Protection of Minors' Rights contributes to the control of education and living conditions of minors, while the Army Conscription Commission decides issues regarding draft deferment).
С. State Officials
Under the Law of RK of July 23, 1999, No. 453-1, «On State Service» (LSS), a state official is a citizen of RK who occupies a position in a state body (legislative. executive or judicial) that is financed by the republican- or local-level state budgets or the National Bank and who performs duties for the implementation of state tasks and functions.[16] Issues regarding state service are dealt with by a special body in the system of state administration, the State Service Agency. In order to be accepted to state service a person must: (a) have Kazakhstani citizenship; (b) have reached 18 years of age; (c) have the proper education, the required level of professionalism and must comply with the respective qualification requirements (Article 13 LSS). Under the legislation, there are two types of state officials: political and administrative. The political officials are those who realize political aims and tasks and who are: (a) either appointed by the President or elected by the Parliament's chambers (e.g., members of the Government, members of the Constitutional Council, judges of the Supreme Court, heads of the regional executive bodies, etc.); (b) heads of the central executive bodies such as the heads of the departments; and (c) official representatives of the President or the Government. All other officials are administrative. They are divided into 5 categories (A, B, C, D and E). Each category specifies a level in the state hierarchy (for instance, the category «A» indicates an official of the Presidential Administration and is subdivided into a certain number of ranks showing the level of the position within that category. Almost all state officials are appointed (and only a few are elected). Before appointment, all candidates must undergo a selection process consisting of three stages: (a) consideration of the documents; (b) testing; and (c) personal interview. Political servants, former deputies and judges are exempt from such processes. The following persons cannot be admitted to state service: (a) incapable persons; (b) persons who have no right to occupy a state position by court decision; (c) persons who have medical problems; and (d) persons who have an offense (in particular, corruption) on their record. After admission to state service, administrative officials may undergo a test period of up to three months. In addition, every three years, administrative officials must go through a performance evaluation in order to check their abilities to carry out state functions properly. Holding a state position is subject to a number of limitations. State officials are denied the following rights: (a) to be a deputy of any legislative body; (b) to conduct any other paid activity except for pedagogical, scientific or creative activity; (c) to be engaged in the activity of commercial organizations unless --such participation is performed due to his official duties; (d) to represent interests of third persons in any state bodies; (e) to misuse official information, finances or property in activities not related to official office; (f) to participate in actions hindering the proper functioning of state bodies such as strikes; and (g) to use the service of third parties in connection with their official activity (Article 10 LSS). Other limitations include an obligation to transfer all corporate shares and other corporate property to a trust manager within a month after entering office (however, they may receive income from such property). Furthermore, state officials cannot occupy positions subordinate to their close relatives (parents, spouses, brothers, sisters and children). They can be members of political parties but are prohibited from creating political-party-based groups in their state bodies. In the case of a violation of such rules, state officials are subject to either disciplinary or administrative liability. The former is imposed in cases of small disciplinary violations connected with service discipline; the sanctions include -reproof, reprimand, severe reprimand, notification of incomplete service correspondence and dismissal. The latter is connected with violations that result in damage to public safety or the interests of other persons; in this case, the sanctions ire either a re-proof or a fine. There are various grounds for the termination of state service. In cases related to administrative officials, these grounds include: (a) dismissal from office by own initiative; (b) termination of contract; (c) reaching the pension age (58 for women and 63 for men); (d) giving false information regarding incomes and property; (e) non-observance of duties and limitations established by the law; (f) neglecting the transfer of designated property to a trust manager; (g) termination of citizenship; (h) perpetration of various offenses; (i) occupation of position without due selection process; and (j) negative results of performance evaluation (Article 27 LSS). Political officials can be dismissed on some of the above-mentioned grounds (such as non-observance of duties and limitations established by the law); but their office may also be terminated in case of resignation, decision of a superior body (or official) or termination of the respective state body.
III. LEGAL FORMS OF STATE
Administrative Law establishes a framework that provides legal forms for activities of state administration. These forms are divided into two groups: (a) legal; and (b) non-legal. The difference is expressed through consequences. The legal forms result in legal consequences, and the non-legal do not directly involve legal consequences and have subsidiary significance covering such actions as office work. archiving, information provision and organizational work (e.g., meetings, inspection, instructions). Administrative Law pays more attention to legal forms, which mainly include (a) issuing acts (regulatory and individual) and (b) concluding administrative contracts.
A. Acts of State Administration Bodies
State administration bodies may issue regulatory legal acts which are one source of law in the Kazakhstani legal system.[17] State administration bodies issuing acts may also interpret their content. Most regulatory acts of state administration bodies (except resolutions of the Government) must be registered if they are related to individual freedoms, rights and duties. The body responsible for such registration is the Ministry of Justice, which supervises the compliance of submitted acts with the laws and other superior regulatory acts. The acts may be repealed by the body itself, a superior body or the court; also, they may be recognized in full or in part as unconstitutional by the Constitutional Council (see the Law of RK of March 24. 1998, No. 213-1, «On Normative Legal Acts»). Individual acts issued by state administration bodies are stipulated by the Law of RK of November 27, 2000, No. 107-11, «On Administrative Procedures.»Only five articles of this Law are devoted to those acts (mostly connected with the requirements for drafting an act and providing rules under which individual acts may be terminated or modified by the body itself, a superior body or the court). which leaves significant space for the discretion of state authorities.
B. Administrative Contracts
This is a relatively new area of Administrative Law because traditionally all contracts were considered to fall under the domain of Private Law. Even today, many scholars, especially specialists in Civil Law, do not recognize contracts under the framework of Public Law. At the same time, administrative contracts can be encountered more and more often in administrative practice (e.g., contracts involving state and military officials; agreements between different state bodies resolving certain public problems; and cooperation agreements between state bodies and nongovernment organizations). These contracts differ from Private Law contracts in the following aspects: they (a) aim at resolving state administration problems with no goal of generating profit); (b) are usually of an organizational nature; (c) are preceded by acts of state administration bodies; and (d) are not always protected by court.
IV. LEGAL METHODS OF STATE
Along with the aforementioned forms, Administrative Law deals with the methods of state administration actions that provide tools and instruments for state administration in its relations with individuals and organizations. Generally, there are two universal methods of management activity: (a) persuasion and (b) enforcement. Administrative Law focuses on the latter. «Administrative enforcement» implies the application of special measures by state administration bodies, courts and some other (mainly state) organizations as stipulated in the legislation. Such enforcement arises in cases of administrative (or other) offenses as well as in cases of the implementation of certain state functions. Administrative enforcement can be exercised in or outside of court. In addition, there are many other bodies entitled to apply administrative enforcement such as police, tax, customs, environmental and sanitary bodies. Unlike other forms of legal coercion, administrative enforcement can be implemented with respect to both individuals and organizations. Different laws mention various administrative enforcement measures. What is common among all of them is the principle of legality, meaning: (a) only authorized state bodies are entitled to apply enforcement measures; (b) state bodies can apply only those measures stipulated by the laws; and (c) application of all measures must be in accordance with established legal procedures. There are three groups of administrative enforcement measures. The first ягоир outlines the measures for the prevention of legal violations and public endangerment. Such measures include inspections, examinations, quarantines and restrictions on the transport of people or vehicles. The second group specifies the measures used to suppress illegal actions or inactions (e.g., administrative detention, temporary termination of the activity of organizations, etc.). The third group covers measures of liability whose aim is the punishment of offenses described below). Administrative Law also deals with enforcement measures applied in the framework of administrative regimes, understood as a set of rules regulating certain issues or situations requiring special state attention. Usually, such rules are connected with additional limitations, restrictions and registrations for individuals and organizations. Administrative Law distinguishes ordinary regimes (such as passport, customs, ecological, frontier) and extraordinary regimes (such as state of emergency and martial law).[18]
B. Administrative Liability
Until the present, Administrative Law has been identified by many lawyers as only related to administrative liability issues. Certainly, administrative liability issues do occupy an important position in the system of Administrative Law, since this branch of law traditionally dealt mostly with the regulation of state police activity. Administrative punishment was a very popular instrument in the hands of the state in order to influence the behavior of individuals and their associations. Administrative liability is one of the classic kinds of liability existing in the Kazakhstani legal system (along with disciplinary, civil and criminal liability). This type of liability is expressed by imposing special «administrative» sanctions by different state bodies for administrative offenses committed by individuals and legal entities.[19] According to the Kazakhstani legal approach, which reflects Kazakhstan's Soviet background, administrative liability is the liability of individuals or organizations before the state (which is different from another approach that defines administrative liability as the liability of the state before individuals or organizations). Another vestige of Soviet law is the existence of a special regulatory act that provides a detailed regulation of administrative liability issues (i.e., Code of RK of January 30, 2001 «On Administrative Offenses»). This Code contains a description of about 1,000 offenses in various spheres of public life (such as sanitary, ecological, transportation, anti-monopoly, tax, customs, fire, etc.). These offenses, which are considered administrative, differ from criminal offenses in that they have no such degree of public endangerment or serious consequences. The Code stipulates the following types of administrative sanctions: (a) warning; (b) administrative fine; (c) requisition or confiscation of property that was a tool or object of the administrative offense; (d) revocation of special rights such as a driver's license or the right to keep and bear arms; (f) revocation or suspension of a license or a special permission to engage in a certain activity; (g) suspension or prohibition of the activities of individual businesses or legal entities; (h) compulsory demolition of unauthorized buildings; (i) administrative arrest; and (j) administrative deportation of foreign citizens or persons without citizenship (Article 45). Responsible individuals who have reached the age of 16 can be subject to administrative liability. Legal entities and in certain cases (such as tax offenses), their branches and representative offices are also subject to administrative liability. Administrative sanctions can be imposed either by courts or numerous administrative agencies including tax, customs, road police, ecological and transportation (however, individuals have the right to demand a judicial court consideration of the sanctions). Since February 2002, there are the so-called specialized administrative courts in Kazakhstan whose purpose is to consider: (a) administrative offenses; or (b) complaints of individuals and legal entities regarding resolutions adopted by administrative agencies in the process of imposing administrative sanctions. At the same time, however, there are still no administrative courts (or similar bodies) that would deal with disputes between state bodies and citizens or their associations.
V. ADMINISTRATIVE PROCEDURE
The modem Kazakhstani legal system does not differentiate between Administrative Law and Administrative Procedure (as with respect to Civil Law and Civil Procedure; or Criminal Law and Criminal Procedure). Thus, the different procedural issues that arise in state administration are currently incorporated into Administrative Law, and there is intense debate about what subject matter Administrative Procedure should cover: (a) those related to disputes between the state and individuals and their associations; (b) those connected with administrative sanctions; (c) those connected to positive administrative procedures; or (d) a combination of the first three.[20]
A. Positive Administrative Procedures
The Law of RK of November 27, 2000, No. 325-IV «On Administrative Procedures» stipulates four types of positive administrative procedures: (a) adoption and -realization of decisions by state bodies and officials while implementing their -functions; (b) internal organization procedures of state bodies; (c) consideration of citizens' appeals to state bodies and protection of their rights and interests; and (d) basic procedures of decision-making in the economic field. The Law also provides the principles for the establishment of administrative procedures which are: (a) legality; (b) equality; (c) priority of citizens' rights and freedoms; (d) prohibition of bureaucratic inflexibility (burokratism); (e) obligation of all citizens and organizations to follow administrative procedures; (f) mutual responsibility and balance of interests of individuals, society and the state; (g) public participation; (h) proscription of corruption; (i) observance of prohibitions and limitations established for state officials; (j) separation of competences and concerted activity of all state bodies and state officials, etc. However, the Law is only a framework without the detailed elaboration of rules that is necessary in any set of procedural regulations. It should be mentioned that due to the political decision to use corporate management methods in the relations between the state and individuals, new approaches in the execution of state functions have been developed in recent years. Many functions of state bodies were moved into the regime of government service, which is aimed at satisfying the needs of individuals and legal entities upon their petitioning. Administrative Law governs the execution of government services and provides a number of regulatory acts that stipulate the standards and procedures of such services. A challenge for modern Administrative Law is the establishment of electronic government. More and more services of state bodies are offered electronically and individuals and organizations use these electronic resources more frequent!) Moreover, the state intends to further develop this medium of communication However, despite numerous possibilities in this area, conservative administrative practice and technological problems pose serious obstacles for such development One of the roles of modern Administrative Law is to facilitate this new regime of relations between the state and individuals in order to ameliorate many problems specific to state administration such as corruption, bureaucratic inflexibility and inefficiency.
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