Administrative lawyer in Almaty — we challenge the protocol before it becomes a decision

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Lawyer for administrative cases: reports, fines, arrest and disputes with state bodies

Proceedings in cases of administrative offences are conducted under the Code of the Republic of Kazakhstan on Administrative Offences, and a mistake at an early stage — a report signed without objections or a missed deadline for appeal — often decides the outcome of the case. People turn to a lawyer for administrative cases both when they have already received an order and when the case has only just begun: after an inspection of a business, a stop on the road, or a report drawn up in respect of a foreign national.

In this article you will learn how an offence differs from an administrative dispute with a state body, what rights a defence counsel has, what to check in a report, how detention and arrest are structured, how inspections and orders concerning a business are challenged, what a foreign national should do when facing expulsion, and in what manner an order is appealed or an administrative claim is filed.

When you need a lawyer for administrative cases

Administrative proceedings in Kazakhstan are structured so that the outcome is often decided at the stage of drawing up the report and the first hearing. When arrest, deprivation of a special right or a large fine for a business is at stake, the role of defence counsel ceases to be a formality: a well-built position makes it possible to challenge the procedure, remove doubts as to guilt and secure reclassification or termination of the case.

A lawyer for administrative cases steps in when a person faces administrative arrest, expulsion from the country, deprivation of the right to drive or another special right, and also when the case concerns an entrepreneur and the sanction is capable of halting the operations of an LLP. The defence position is built on checking the powers of the body, compliance with the procedure for drawing up the materials, and the right to have witnesses and defence counsel participate and to review the evidence.

An administrative lawyer in Almaty also handles disputes with state bodies: appeals against orders, instructions and actions of officials before a superior body and in court. The services of a lawyer for administrative cases include analysis of the report and case materials, preparation of objections, motions and complaints, and representation at hearings and on appeal.

Assistance is especially in demand in the following situations:

• a citizen faces administrative arrest or expulsion from the Republic of Kazakhstan;
• the question of depriving a person of the right to drive or another special right is being decided;
• a business is accused of a violation for which a large fine or suspension of activity is provided;
• a state body has issued an instruction or order, or committed actions that the entrepreneur considers unlawful;
• the report was drawn up in breach of the rules, and the evidence raises doubts as to the guilt of the person concerned.

Administrative offence and administrative dispute: what is the difference

An administrative offence and an administrative dispute are different legal situations, although both involve the actions of the state. In the first case, a person is accused of violating a prohibition established by the Code of the Republic of Kazakhstan on Administrative Offences, and the proceedings are conducted by an authorised body — the police, the tax authority or another supervisory body — whereas cases of arrest, expulsion and suspension of activity are heard by a court. In the second, the person challenges a decision, action or inaction of a state body under the Administrative Procedural Code of the Republic of Kazakhstan, in force since 1 July 2021.

The distinction determines who proves what, which deadlines apply and where a complaint or claim is filed. In offence proceedings, the burden of proving guilt lies with the body: no one is obliged to prove their innocence, and the person has the right to give explanations, file motions and present evidence. In an administrative dispute, the claimant seeks a finding that an act or action is unlawful, restoration of the violated right or compensation for harm.

• Offence: a violation of a norm of the Code of the Republic of Kazakhstan on Administrative Offences is alleged, and the outcome is an order imposing a penalty or termination of the proceedings.
• Dispute with a state body: a decision, action or inaction, refusal of a service or an instruction is challenged, and the outcome is a finding that the act is unlawful and restoration of the right.
• Subject: in the first case, the person held liable; in the second, the claimant whose rights are affected by an administrative act.
• Procedure: offence proceedings and claim proceedings under the Administrative Procedural Code of the Republic of Kazakhstan differ in their stages and in the manner of proof.
• Outcome: in an offence case — cancellation or amendment of the decision, in a dispute — recognition of the act as unlawful and its cancellation, removal of the violation, compensation for harm.

Both categories of cases require verification of the body's competence and compliance with procedure.

Lawyer for administrative offence cases: the rights of a defence counsel

A defence lawyer takes part in the case regardless of whether the person has been detained or the case is being considered on the merits. The right to the assistance of a defence lawyer arises from the moment the protocol is drawn up, and in the case of administrative detention, from the moment of actual restriction of liberty. A defence lawyer may be an advocate or a legal consultant, as well as the spouse, a close relative or the legal representative of the person concerned; an advocate confirms his or her authority with a certificate and written notification of defence. That is why a lawyer in administrative offence cases should be engaged at the earliest stage, when the evidence base is being formed.

The status of defence lawyer gives an independent set of procedural powers: to review the case materials, including the protocol, reports, explanations and the results of inspections, to record violations in their drafting, to file motions to summon witnesses, order an expert examination, request documents and admit evidence. A challenge filed by the defence lawyer is considered by the official in the established procedure, and a refusal of a motion must be reasoned.

• to review all case materials, including the protocol and its annexes;
• to file motions to summon witnesses, order an expert examination and admit documents;
• to present evidence and take part in its examination;
• to file challenges and objections to the actions of officials;
• to appeal against rulings, actions and decisions to a superior body, the prosecutor's office and the court;
• to receive copies of procedural documents and to appeal against refusal to issue them.

Protocol on an administrative offence: what to check

The protocol on an administrative offence is the main procedural document, and the further course of the case depends on its content. It states the date and place of drawing up, the position and details of the person who drew it up, information about the person against whom the case has been initiated, the place, time and circumstances of the offence, and the legal provision that establishes it. The person is informed of his or her rights and duties, and a note to that effect is made. The absence of mandatory information or its incompleteness is a ground for objections.

The person has the right to give explanations on the merits and to state comments both on the content of the document and on the manner in which it was drawn up. They are entered in the protocol or attached separately. Refusal to sign does not suspend the proceedings: it is recorded in the protocol, and a copy is handed to the person. If you disagree with the event or the legal classification, do not sign the document in silence — set out your position in writing.

A copy of the protocol is handed over against receipt. Check whether the record corresponds to the actual circumstances, whether there are any corrections, additions or blank fields. If you disagree, state this directly: "I disagree with the protocol", followed by the reasons. Comments may concern the absence of attesting witnesses or witnesses, incorrect indication of time and place, or distortion of explanations.

• Date, place of drawing up, position and details of the person who drew it up.
• Information about the person: surname, name, patronymic, address, IIN if available.
• Place, time, event of the offence and the legal provision.
• Explanation of rights and duties, with a note to that effect.
• Explanations of the person and comments on the content of the protocol.
• Note on the handing over of a copy or a reasoned refusal to sign.

Administrative detention and administrative arrest

Administrative detention is applied to stop an offence, establish identity, draw up a protocol and consider the case. As a general rule it lasts no more than three hours, but the law allows longer detention in certain cases expressly named in the Code on Administrative Offences. Time runs from the moment of actual bringing in, not from the drawing up of documents. A protocol on the detention is drawn up, and a copy is handed to the detained person at his or her request.

Administrative arrest is the strictest administrative penalty, involving short-term deprivation of liberty. It is imposed only by a court considering the case on the merits; officials of the bodies that drew up the protocol do not have such a measure at their disposal. The sanction applies to offences listed in the law and is not imposed on pregnant women, women with children under fourteen, persons under eighteen, persons with first and second group disability, women over fifty-eight and men over sixty-three.

• Personal participation of the defence lawyer in drawing up the protocol and questioning the detained person.
• Checking the lawfulness of the bringing in and the period of actual detention.
• Identifying procedural violations and filing motions.
• Appealing against the actions of officers to a superior body, the prosecutor's office or the court.
• Preparing the position when the question of administrative arrest is considered.
• Handling an appeal where a penalty has already been imposed.

In an administrative case, the one who records their position first wins: remarks in the protocol, explanations and a timely appeal carry more weight than a retelling of the circumstances in court.

Business offences: inspections, fines, suspension of activity

Inspections by state bodies end not only in orders but also in protocols on administrative offences. A protocol starts administrative proceedings, the outcome of which affects the operation of the enterprise. The actions of the inspectors and the protocol can be challenged during consideration of the case, before a higher body or in court. The position of the defence when the protocol is drawn up and the materials are considered is of key importance.

Following inspections, legal entities are given penalties, the most sensitive being suspension of activity. It affects production, trade, obligations to counterparties and employment relations. The grounds and procedure are set out in the Code of the Republic of Kazakhstan on Administrative Offences; the defence is built on checking the lawfulness of the inspection, compliance with procedure and the classification of the offence.

Division of competence: administrative arrest, expulsion of a foreigner and suspension of activity are imposed only by a court — on the materials of the authorised body. Other penalties are imposed by the body itself, but it must observe the procedure and procedural guarantees. A penalty imposed in breach of procedure can be set aside.

• analysis of the inspection report and the protocol on an administrative offence
• identifying procedural violations during the inspection and when the protocol was drawn up
• preparing objections and evidence during consideration of the case
• appealing the decision to a higher body and to court
• challenging a suspension of activity that affects the operation of the enterprise
• representing the interests of the legal entity and its head in administrative proceedings

Foreigners: migration offences and expulsion

Foreigners and stateless persons are liable for breach of the rules of stay under the same procedures as citizens of the Republic of Kazakhstan, but the sanctions for migration offences are specific. The offences are: exceeding the period of stay, evading registration at the place of temporary residence, working without a permit, and a mismatch between the declared purpose of entry and the actual activity. The protocol is drawn up by the authorised body in the field of migration, and the case is considered by a court. The protocol by itself does not mean expulsion, but it creates the risk of that measure.

Administrative expulsion is imposed only by a judge, and it is enforced as the controlled departure of the foreigner from the country. The court examines the circumstances of entry, the periods, the documents and the foreigner's explanations, and assesses the proportionality of the measure, family ties, lawful income and grounds for further stay. The defence is built on challenging the fact of the offence, procedural defects in the protocol and the evidence, and arguments that expulsion is disproportionate.

The time limit for appealing a decision is short and runs from the day a copy is served, so an appeal must not be delayed. Missing the deadline does not close the path to review, but the reasons for the delay are assessed by the body or the court when the appeal is considered. The appeal is filed through the court that issued the decision and must contain specific arguments, not general references to disagreement.

• exceeding the period of stay and evading registration
• working without a permit for the employment of a foreigner
• a mismatch between the purpose of entry and the actual activity
• administrative expulsion by decision of a court
• the subsequent entry ban and its lifting
• appealing a decision within a short period from the day a copy is served

Types of administrative penalties and how to defend against them

An administrative penalty is a measure of state coercion for an offence under the Code of the Republic of Kazakhstan on Administrative Offences. The types of penalties are: warning, fine, confiscation of the instrument or subject of the offence, deprivation of a special right, deprivation of a permit or suspension of its validity, suspension or prohibition of activity, compulsory demolition of an illegal structure, community service, administrative arrest, and expulsion of a foreigner from the country. Each type is applied within the limits established by law and affects different rights of the citizen.

A warning is the mildest measure, a written censure of the offender. A fine is calculated in monthly calculation indices and collected into the budget, so it is important to check that the calculation is correct. Deprivation of a special right, for example the right to drive, is imposed for gross or repeat violations. Administrative arrest is imposed by a court for certain offences, and expulsion applies to foreigners and stateless persons.

The defence is built on checking the lawfulness of the protocol, compliance with procedure and the presence of mitigating circumstances. Remorse, voluntary reporting of the offence, remedying the harm caused, commission of the offence by a minor, a pregnant woman or a person with a young child, as well as other circumstances which the court or authority may recognise as such, are treated as mitigating.

• Check the lawfulness of the protocol and the authority of the person who drew it up.
• Establish the presence of mitigating circumstances and state them.
• Challenge the classification of the offence and the amount of the penalty.
• Comply with the pre-trial procedure for appeal, where it is mandatory.
• Prepare evidence and motions for the consideration of the case.
• Appeal the decision to a higher authority or to a court.

In a dispute with a state body under the rules of the Administrative Procedural Code, an application to court is filed after a mandatory complaint to a superior body.

Limitation period for bringing to administrative liability

The limitation period for bringing to administrative liability is the period after which proceedings in an administrative offence case cannot be started, and any started proceedings must be terminated. The calculation depends on the type of offence. As a general rule, the period runs from the day the offence was committed, and in the case of a continuing offence, from the day it was discovered. The moment of discovery is confirmed by the date of the protocol, report or other document recording the violation. In Almaty, where the density of inspections and fiscal procedures is high, it is this date that often becomes the subject of dispute, and determining it correctly frequently decides the outcome of the case.

A separate category is continuing offences. The hallmark of a continuing offence is prolonged failure to fulfil an obligation, for example failure to submit information to a state body or non-compliance with a requirement that applies over time. Here the period starts running from the day of detection, not from the moment the obligation should have been performed. As long as the obligation remains unfulfilled, the offence remains continuing and the limitation period does not start to run, so it cannot be relied on before the day of discovery. An administrative lawyer helps to remove such a classification by analysing the body's documents and challenging the moment of detection.

For the person against whom proceedings are being conducted, the expiry of the period is a ground for terminating the case. The body is obliged to terminate the proceedings even if guilt is in fact apparent. But this does not happen automatically: officials may fail to track the limitation period or interpret it in their own favour. Therefore the expiry of the period must be raised by the person themselves — in writing, with reference to the case materials and the date the protocol was drawn up. Even so, the argument is not lost if nothing is said: the expiry of the period can be raised in a complaint against a ruling that has already been issued.

The length of the period and the moment from which it runs depend on the elements of the offence, so they are checked against the specific article rather than against a general idea of limitation. If a ruling has already been issued outside the period, it is subject to cancellation. An application regarding the expiry of the period is best prepared before the ruling is issued, not after. Below is what is checked first.

• The date the offence was committed or discovered and the documents confirming it.
• The signs of a continuing offence and the moment it was detected.
• Compliance with the procedure: notifications, explanations, the protocol.
• Whether there are grounds for terminating the proceedings on limitation grounds.
• The time limits for appealing a ruling and the procedure for filing a complaint.
• The powers of the body that drew up the protocol and the jurisdiction over the case.

Appealing a ruling in an administrative case

A ruling in an administrative offence case is appealed to a superior state body or to a court. The addressee depends on who issued the ruling: a decision of an executive body is challenged according to jurisdiction, while a judicial act is challenged on appeal. A complaint may be filed by the person against whom proceedings are being conducted, the victim, their representatives and defence counsel, while a prosecutor lodges a protest. Guilt is proved by the body that issued the ruling: the person is not obliged to prove their innocence, and doubts about guilt are interpreted in their favour.

The time limit for appealing runs from the day the copy of the ruling was served or received. Missing the deadline is not a ground for refusing to accept the complaint: the reasons are established when it is considered and may become a ground for refusing to grant it. Filing a complaint suspends execution of the ruling until it is considered — no separate motion is required for this. Filing a complaint does not remove the obligation to comply with other requirements not related to the act being appealed.

• A copy of the ruling being appealed in the administrative offence case.
• Documents confirming the arguments in the complaint: explanations, certificates, correspondence with the body.
• Evidence of the date the copy of the ruling was served or received.
• An identity document of the applicant and confirmation of the defence counsel's authority.
• Documents on valid reasons for missing the deadline, if the complaint is filed later.

Administrative claim against a state body

When a state body refuses to issue a permit, does not register a right, imposes an encumbrance or does not respond to an application, the dispute moves to the administrative court. First, a complaint is filed with a superior body or a superior official: as a general rule, going to court is allowed only after pre-trial appeal, and only where there is no superior body is the claim filed immediately. If there is no response or it is formal, an administrative claim is prepared to challenge the decision, action or inaction.

An administrative claim is filed under the rules of the administrative procedural legislation of the Republic of Kazakhstan. Both an individual act and a refusal expressed in a letter or by silence may be challenged. The applicant states which right has been violated and attaches the correspondence, copies of applications and responses, and the documents the body ignored. The burden of proving the lawfulness of the decision lies with the state body, not with the applicant.

The court checks whether the body acted within its competence, whether the procedure was followed, and whether the applicant's arguments were taken into account. Grounds for cancellation are often an unmotivated refusal, reliance on a legal norm without verifying the facts, or a breach of the procedure for considering the application. If the claim is upheld, the court declares the act unlawful and obliges the body to remedy the violation. Enforcement of the court decision also remains a matter of ongoing support.

• collecting correspondence with the body and evidence of the violation of the right
• preparing and filing the mandatory pre-trial complaint with a superior body
• drafting an administrative claim challenging a decision, action or inaction
• representing the applicant's interests in the administrative court
• monitoring enforcement of the court decision that has entered into force
• appealing the court act on appeal if necessary

Free lawyer for administrative cases

The right to free legal assistance in administrative cases in Kazakhstan is guaranteed by the Constitution and a separate law. The assistance is paid for by the state, provided by lawyers participating in the state-guaranteed legal assistance system, and it covers not any disputes, but the categories of cases expressly named in the law. Advice and representation are possible both in administrative proceedings and when appealing the actions of state bodies.

The grounds differ. In cases of administrative offences, assistance is available to persons held liable, during consideration of the case and appeal against the ruling, as well as to detained persons and persons in respect of whom the question of administrative arrest is being considered. The code separately names the cases of mandatory participation of a defence counsel: where the person himself requests it, where he is a minor, does not speak the language of the proceedings, or due to physical or mental disabilities cannot defend himself.

Obtaining assistance begins with an application. In Almaty, the participation of lawyers in such assistance is organised by the city bar association through the unified digital legal assistance system, and the list of participating lawyers is published by the territorial justice body. An identity document, a document on the offence and papers confirming the right to assistance will be required. Following the application, a lawyer is assigned to the applicant, who handles the case at all stages.

• Persons held administratively liable — during consideration of the case and appeal against the ruling
• Detained persons and persons in whose cases the question of administrative arrest is being decided
• Citizens from the categories expressly listed in the law, including those recognised as low-income
• Participants in proceedings on applications and disputes with state bodies in the cases provided for by law
• Persons who need help in drafting a complaint against the actions or inaction of an official

Consultation with a lawyer on administrative cases

Proceedings in cases of administrative offences are governed by the Code of the Republic of Kazakhstan on Administrative Offences, and disputes with state bodies by the Administrative Procedural Code of the Republic of Kazakhstan, in force since 1 July 2021. The choice of defence strategy depends on the stage of the case and the documents available. A consultation with a lawyer on administrative cases begins with a review of the materials: what is being alleged, what evidence has been collected and what procedural steps have been taken.

You should bring to the meeting the protocol on the administrative offence, the ruling in the case, the decision to initiate proceedings, summonses and notifications from the state body. If decisions of a superior body or court were issued, those documents are needed too. Photographs of the scene, video recordings, including from dashcams and cameras, diagrams, witness statements, and correspondence with the body will also be useful.

The written materials and recordings make it clear whether the procedure for drawing up the protocol was followed, whether the participant's rights were explained, whether witnesses and a specialist were involved, and whether copies of the documents were served. It is clear which circumstances are supported by evidence and which rest only on the words of the person who drew it up. This is how the position is formed for a complaint, objections, or for a dispute with a state body in administrative court proceedings.

• protocol on the administrative offence and the ruling in the case
• decisions, summonses and notifications of the state body
• photographs and video recordings of the event
• diagrams, witness statements, correspondence with the body
• decisions of a superior body or court, if any were issued
• documents confirming the applicant's identity and his status in the case

Cost of a lawyer's services in administrative cases

The cost of a lawyer's services in administrative cases is made up of several components; there can be no single figure for all situations. First, the type of penalty under the sanction of the article: warning, fine, deprivation of a special right, administrative arrest or expulsion from the republic. The more serious the consequences, the more procedural steps the defence lawyer performs.

The second factor is the stage of the proceedings: drawing up the protocol and administrative investigation, the court hearing, appeal to a higher body or court. Each stage involves its own scope of work: collecting explanations, filing motions, reviewing the case file, preparing an appeal or objections.

The third factor is the number of hearings and the complexity of the dispute. The position of the state body, witnesses, expert examinations, and the requesting of documents from the akimat, administrative police bodies or other agencies increase the workload. When appealing against the actions of an official, the defence lawyer prepares a separate dispute under the rules of administrative proceedings.

The fourth factor is the volume of materials and the timeframe within which one must join the case. The later a person seeks defence, the more intensive the work, in order to have time to assert procedural rights and objections. The person against whom proceedings are being conducted is entitled to the assistance of a defence lawyer regardless of the stage and type of penalty.

• The type of penalty under the sanction of the article and the associated severity of consequences.
• The stage of the proceedings: investigation, first hearing, appeal.
• The number of hearings and the need to travel to other regions.
• The volume of case materials and the presence of expert examinations, witnesses, and requested documents.
• The existence of a parallel dispute with a body or official.
• The urgency of preparing objections and appeals.