Law

Doctor of Laws Balabiev Kayrat

Peoples' Friendship University

It is legal basis of consideration by the courts of general jurisdiction of disputes arising from administrative legal relations

What is meant by the term "administrative justice"? Thus, the mother-in-law was made a claim «to the crown» (to the king and his officials) in the Middle Ages in England. "The British are controlled with law and statute" was maxim of organizing social and political life of Great Britain. After The French Revolution, the idea of administrative justice began to spread in Europe and became ubiquitous, but without avoiding of significant national differences. Eventually, administrative courts are created to review all of the executive disputes, which form a special system from inferior court to middle and highest courts. Such system exists in parallel with courts’ system of general jurisdiction, considering criminal and civil cases. In this case, administrative courts are independent of the authorities in 'active' management. This system can be called a German, it has also existed and applied Austria, Finland and some other countries since the end of the last century.

"Administrative tribunals", considering the case in the first instance, are created for reviewing ministerial disputes in the specially organized regions in France (in France from 2 to 7 departments). Appeals can be submitted to the State Council, where one of its sections considers it in a three-member Board. This is the French system, which is widely criticized for the fact that it does not provide the actual independence of the courts in resolving disputes (there is a government commissioner, the highest authority, the State Council in the administrative tribunal). Nevertheless, the French system has an impact on organization of a system of administrative justice in Italy, Greece and some African countries (France’s former colonies).

Interested persons have the right to petition the General Court in order to review any administrative dispute. At the same time, special administrative courts (tribunals) are produced to consider some executive disputes within some departments that do not constitute a single system. For example, there are special tribunals for pensions, income tax, railway tariffs and industrial injuries in England. The famous British scientist H.V.Wade noted "the system of tribunals, actively developing in recent years, has an inner tendency to chaos." The English system of administrative justice has an impact on similar systems in the U.S., Canada, Australia and other countries. Features of Administrative Justice are important and unique in each country. In general and in particular, Administrative Justice and Kazakhstan’s resolution of administrative disputes has also its own specifics. Following the adoption of the new Code of Administrative Offences appears the legal field that will reveal unique features of administrative law in Kazakhstan. Therefore, it is advisable to allocate some common aspects, characterizing this institution.

Firstly, all systems of administrative justice are characterized by the assignment to its competence disputes arising in the administration among citizens, legal entities, administrative bodies and officials. The terms and content of these disputes are individual for each separate system of administrative justice, but the administrative and legal nature is common to all disputes. Some systems establish principle where all of the administrative dispute can be discussed in the organs of administrative justice; another determines the only certain categories of disputes to the competence of the law. Some systems allow the consideration of only those disputes, which put the issue of protection of subjective rights and others admit the possibility to challenge the legality of regulations issued by the government.

Secondly, body specially created and adapted to the resolution of disputes on the right is used as a jurisdictional body in all systems of administrative justice. On the one hand, this role is played with a completely independent of general courts’ administration, which can allow either administrative or other disputes. On the other hand, jurisdictional functions assigned to the special administrative courts are organized outside of the general courts and administrative bodies. In addition, you can use departmental quasicourt, disputing resolution only within its department as a special jurisdictional body. According to the traditional English doctrine, the real control over the administrative activities was believed to be shared by the courts. This situation was fluctuated significantly with the practice of quasi-judicial bodies’ creation both in the UK and other Anglo-Saxon countries (U.S., Canada, Australia, New Zealand) in recent decades. Civil proceeding is being criticized for formalism’s excess, for slowness and costliness in cases, whereas procedure differs with dynamics and courts’ specialists in the quasi-judicial bodies. Each system of administrative justice requires the consideration and resolution of administrative disputes to take place in the statutory procedural form. Depending on the system, civil procedural, administrative procedural or quasi-judicial procedural form can be applied. It satisfy to the principles of "natural justice" and to the forms including transparency, competitiveness, an opportunity to be heard, be bound by making a reasoned decision, an opportunity to appeal it. Overall, the administrative justice is the procedure for consideration and resolution of procedural justice in the form of disputes arising in the administration among citizens or legal entities and executive officer, carried out by jurisdictional authorities, specially created for administrative disputes.

The actual formation of the Institute of Administrative Justice began only in the late 90s of the XX century in Kazakhstan. The major component of administrative justice’s mechanism is its actual and real implementation that is administrative process. The concept of "process" means the procedure for an activity (legislative, fiscal, civil, criminal, etc.). Therefore, the meaning of this concept lies in identifying and securing together different kinds of acts that are in the process of achieving this goal.

Thanks to a broad interpretation of "administrative process", there are all the necessary bases to qualify the state-management activities as procedural. Actually, the executive bodies (officials) carry out various activities in order to implement their tasks, entrusted functions and powers vested to them. These actions become the legal form that contains some legal methods. In other words, the very state-management activities, which has the implementation of executive power can be treated as an administrative process, as well as "judicial process" (civil, criminal, arbitration). Currently, Kazakhstan has a law by the Administrative Code where the majority party management is taken into account. This opened the possibility to find a procedural form of public-management activities. Firstly, it would be consistent with the current level of legal regulation of administrative action. Secondly, it would be able to express specific legal authoritativeness and one-sided expressions of the executive authorities’ will. Narrow understanding of procedural activity in its legal sense corresponds fully to this goal.

Foundations, which are necessary to its understanding, stem from the nature of the judicial and procedural activities characterized traditionally as a judiciary’s reaction to the deviations from the requirements of substantive criminal law and civil law through the application of sanctions under these rules. Judicial process is characterized to be the main form of realization of the judiciary. Moreover, enforcement function is materialized in its boundaries, where legal proceeding is regulated strongly. In fact, this is one channel of communication that is necessary for the transition to understanding the nature of administrative disposition in its narrow sense. However, there is a need to emphasize the focus on another important point of law. In accordance with the canons of legal theory the process of his appointment is the realization of substantive law. In broad terms, the administrative process should be treated as an activity prior to the implementation of administrative law. Therefore, it is impossible to draw attention to the process where the full range of management actions is aimed at achieving corporate results that alleged disposition of the appropriate administrative and legal norms. This ensures compliance with the rules of proper behavior in public administration. There is the law enforcement function that fully complies with the appointment of executive power in the state-power mechanism in the procedural activities of the executive power on the first stage.

But there is a direction of this activity, which is regulated. This refers to its law enforcement function, where is a realization of material sanctions of administrative and legal norms. The Administrative Code and other normative legal acts of the same content and purpose operate for the administrative and legal support of the procedural act.

To a great extent, all of this conciliates administrative and procedural activities of law enforcement nature with the judicial process. As a rule, the latter is denoted as jurisdictional. At the same time, the judicial jurisdiction of the courts does not mean affiliation to the courts of civil, criminal or other cases. In terms of content, it is a set of powers to resolve legal disputes and resolve cases of violations. The last involves the assessment of the court action of certain individuals in terms of their validity and application of legal sanctions against offenders. If the procedural activities of executive authorities (officials) are analyzed, it will be possible to find in that part, which relates to the use of sanctions, administrative law, similar to the qualities inherent to it. This gives sufficient grounds to label it as an administrative and jurisdictional.

There are some grounds for the generalized characteristics of the administrative and procedural activities of unjurisdictional character. For instance, the executive bodies’ implementation of the licensing, registration and other similar acts not involving the use of administrative and legal sanctions, appropriate administrative and procedural rules are realized (rules for registration of weapons and ammunition, registration of citizens, the licensing of certain types of activity, etc.)

There is no denying the fact that certain conventionality of such terminology or procedure is understood as the established order of doing things. Administrative jurisdiction also includes the official order of consideration cases related to the need to apply legal sanctions. Nevertheless, science administrative law uses the term "procedure" in order to border types of administrative and procedural activities. Eventually, the administrative process is made up of committed executive bodies’ (officials) actions:

a) It is the administrative-jurisdictional law enforcement (the administrative process in the narrow sense),

b) It is the administrative and procedural motions for enforcement (administrative process in the broad sense words).

There are many common features between these management actions:

- They are taken the form of individual legal acts of the government (for instance, it is the authority of the Interior to impose an administrative penalty, authorizing the holding of mass events, etc.);

- They have a particular destination (the offender, the applicant must be registered, etc.);

- They are expressed in one-sided legal-authority of the subject of executive power;

- They allow individual administrative matters related to implementation of the disposition or sanction of administrative law; specific types of homogeneous proceedings form the various options for the administrative proceedings.

"Administrative Process" is regulated by administrative law activities authorized by the executive bodies (officials) to hear and determine individual administrative matters that arise in public administration in order to implement tasks and functions of the executive branch. Administrative matter means the issue arising in the field of public management connected with the use of administrative law and authorized executive bodies’ (officials) actions rowing in order to permit administrative activity. There is an opportunity to assert that "administrative proceeding" is a standard procedure for the commission settled by the executive authorities (officials), which provides lawful and reasoned consideration and resolution of homogeneous individual administrative matters. As an example, there are proceedings on administrative violations, consideration and resolution of complaints, licensed production.

What is the essence of the administrative jurisdiction? From our point of view, its essence can be reduced to the following provisions. In general and in particular, this type of jurisdiction has possible disputes about administrative right (legal and administrative disputes) among the parties governed with administrative law management of public relations. It is essential, administrative and legal dispute is considered to be an individual administrative proceedings arising due to the fact that one of the participants in the management of relations has a belief that his or her rights and lawful interests are violated or infringed upon the actions of another party in such social relations. In other case, one of the participants accounts other person’s signs of violation of the rules forcing in the field of public administration, which necessitates the application of administrative coercion to it. Administrative disputes can arise because of various reasons and as managed as control initiatives. It should be added that the legal and administrative disputes can also arise on the initiative of law enforcement agencies (It is the prosecutor’s protest acts in management or supervisory bodies’ application of an administrative enforcement action). There are disputes between the executive authorities (One of the causes is the division of powers in government). Conciliation is provided in order to solve it by the Constitution of RK. However, their content remains unclear due to the absence of regulatory statute. The purpose of the administrative proceedings is a jurisdictional review and resolution of individual disputes of administrative law.

In spite of the application of administrative responsibility measures in the proceedings on administrative offenses, executive and jurisdictional production is also the consideration and resolution of disputes arising from the application of disciplinary power. This is disciplinary proceedings, which aims to resolve disputes in the application of the power head with respect to subordinates of disciplinary accountable for their discipline (service) behavior. Administrative and jurisdictional is the production of complaints as they always concluded the subject of any administrative and legal dispute. Despite these you can find another aspect of the administrative jurisdiction. As a result, the relevant executive bodies (officials) are endowed with considerable expertise by the application of administrative measures or disciplinary action. There is a wide range of other means of power-coercive and preclusive preventive properties of the destination in their arsenal. Therefore, speaking about administrative jurisdiction, it is important to take into account all of the places in the state-management practices and executive bodies (officials)’ properly regulated cases, and the subjects of administrative coercive measures. Identification of an administrative nature process allows us to capture types of administrative and jurisdictional production. The following types are decided to allocate:

1) Complaints, 2) Disciplinary, 3) Administrative offenses.

Consider the kinds of administrative and jurisdictional "Production of complaints." Production of complaints can be carried out in an administrative or judicial order. Content of such procedure is dispute resolution, arose due to the citizen’s or a collective entity’s treatment, casting doubt

legality of executive authorities’ (Officials’) actions. Authority (official person) makes a legal assessment of action as well as evaluates the claims of the applicant in order to protect their rights. The next type of administrative production is a "disciplinary proceedings". Disciplinary proceedings carried out on the basis of either the labor laws of the state service or by special acts of discipline. Its subject is the only official, endowed with the disciplinary authority in committed against a disciplinary (service) offense. The result of this type of production is the decision to impose on the offender disciplinary action. The third type of production is Proceedings of Administrative Offenses. The order of proceedings on the administrative offenses is regulated in the CAO. The following requirements are more significant:

a) Production takes place in the next stages:  stimulation, consideration, resolution of the case; the enforcement proceedings; appeal against the decision on the case is an optional step. Each of these stages has a separate registration procedure;

b) The initiation of proceedings is a preparation of an authorized person of the administrative offense or attorney’s decision to initiate administrative proceedings.

Protocol about the administrative perturbation is a procedural document, which reflects information about the fact of infringement, the offender, witnesses, victims and others. It is drawn up immediately after discovery of the fact of the offense. It was not prepared for the commission of minor violations, carrying punishment as a warning or a fine that is not more than one minimum wage when the offender does not contest the offenses and imposed penalty that collects on the spot. If it is impossible to place the minutes of the offense, the offender can be departed to the police. Measures of ensuring the proceedings can be admitted: administrative detention, personal examination, inspection of items and documents, detention of vehicles. The detention can’t be holding no longer than three hours. Identity of the offender is established during this period. Further, protocol about the Administrative Code’s offense is prepared (st.24.1-24.4). Person driving a vehicle is also subjected to administrative detention when there are reasonable grounds to believe that they are in a state of intoxication. Such a person are suspended from driving and sent to a medical examination to determine the state of intoxication. Personal searches of belongings and vehicles are made in order to detect weapons of committing an administrative offense. Objects and documents discovered during the inspection are confiscated. All these steps must be performed by authorized officials (internal affairs, customs authorities). Examination is the main stage of production where all the procedural steps, required to make a legitimate and reasoned decision, exist. Typically, cases are discussed at the place of the offense.

There are participants in the production:

- Body (official), which is attributed to the competence of its consideration of the case;

- The offender;

- Witnesses;

- The victims;

- Legal representatives (and legal minors);

- A lawyer;

- The experts;

- Translators.

Each of them is endowed with the necessary procedural rights. It is possible to ensure the offender’s attendance (the cases of disorderly conduct, etc). Therefore some evidences are investigated. Firstly, the presence of grounds in order to hold that person responsible for committing this offense is found out. Further, the nature and consequences of its commission is analyzed (extenuating and aggravating circumstances, property damage, the degree of guilt, etc.). The prosecutor can be engaged in this procedure. Moreover, resolution of the case is the final stage of production where reasoned decision is included according to the results of the process. Its content is the imposition of administrative penalties or dismissal proceedings. Resolution imposing an administrative penalty decides the fate of the physical evidence seized documents and things. Given tool or object of the offense is destroyed or transferred to the relevant agencies (arms and ammunition are transformed to the internal affairs bodies). It should be pointed out that the appeal against the decision on the case is optional (not compulsory stage of production). Administrative punished victim of the offense, the legal representative of the legal entity have the right to appeal. Protest is the prosecutor’s function. There is a ten-day period for filing a complaint in order to appeal with the date of receipt of order.

Enforcement proceedings mean a set of actions for the implementation of resolution on imposition of administrative penalties. In this case performers are individuals subjected to such penalties. The executors of the decisions of other administrative penalties are the official bodies and individuals (the bailiffs are compensated seizure or confiscation of property, law enforcement bodies are administered arrest, etc.). Permissive production is also significant in the administrative proceeding. Licensing system is established by legislation in order to carry out certain actions in the field of public administration. Its essence lies in the fact that natural and legal persons must receive official state sanction for their implementation in order to ensure public safety and state control over certain activities. Eventually, the internal affairs agencies permit to sale and purchase arms and ammunition, to produce the blasting, to enter the border zone, etc. Environmental authorities allowed dumping industrial waste, using natural resources, etc. Meetings, rallies, street marches and demonstrations, pickets need in authorization. Licensed production is one of the other regulated types, which permits a variety of systems. The license is a document, the legal significance of which is to permit or granting the right to carry out physical and legal persons of certain activities (production of medicines, precious metal in a liter, publishing, etc.). Production involves consideration authorized by the executive authorities of applications for licenses, background checks on the applicant (licensee), the subsequent monitoring of their compliance with their license requirements and conditions. Licenses are issued for a period of not less than three years within thirty days of receipt of the application. There are grounds for refusal to issue a license (failure of the applicant established licensing requirements). Licensing authorities can only suspend a license for violations of licensing requirements. Cancellation of license is possible to be only through the courts.

The most important type of production is the production for preparing the legal acts of the government. Project development decisions are made on the basis of work plans, laws and orders of the parent bodies of executive power as well as citizens and legal entities. There are developing structural units of the apparatus with the essential participation of legal services and the definition of those responsible for training as well as the timing of the establishment is created in the executive branch. It is necessary to pre-reconcile the projects with interested bodies. The project must be accompanied by an explanatory note (studies, forecasts, etc.). After the necessary approvals, the project is going through a sighting leaders (representatives of) the authorities concerned. Judicial authorities are allowed to conduct a legal review of draft regulations. In addition, the legal services of the executive power carry out such an examination of projects and studies. Projects of government regulations on the subjects of joint jurisdiction are sent to the state power of subjects and its proposals are subjected to mandatory review. The last examination and an endorsed project of the act are submitted for approval. As a result, the draft decisions on matters sent to the jurisdiction of the executive power shall be made to review and approve by the members of Kazakhstan’s government. In other cases, they relate directly to the heads of these bodies. The essence of legal and administrative dispute can be disclosed in the following positions:

1) In general, form of administrative and legal dispute is an individual administrative proceedings arising due to the fact that one of the participants in the management of relations formed the belief that his or her rights and lawful interests are violated or infringed by another person's actions in the public relations. On the other side, one of the participants sees signs of violation of the rules in other party’s actions. It acts in the field of public administration, which necessitates the application of administrative coercion to it. Sometimes, this role is played by a completely independent on the administration of general courts, which can allow executive and other disputes. Otherwise, jurisdictional functions assigned to the special administrative courts organized outside of the general courts and administrative bodies;

2) All systems of administrative justice has an opportunity to assign to its competence disputes arising in the administration among citizens, legal entities, administrative bodies and officials;

3) There is authority specially created and adapted to the resolution of disputes about the law in all systems of administrative justice.

References:

1. Republic Kazakhstan code about administrative offenses from 30.01.2001г.№155-ІІ

2. The law «About nationality of the Republic of Kazakhstan» December, 1991

3. The law «About a legal status of foreign citizens in RK» from 19.06.1995 г.№2337

4. Alekseev S.S. General theory of the rights. A course in 2 t. T.І. - M: Legal literature, 1981. - Page 360, T. ІІ. - M.: Legal literature, 1982. – Page 360.

5. Alekssev S. S. Structure of the Soviet right. – M.: Legal literature, 1975. - Page 264.

6. Alekhin A.P. Yu.M. Administrative right of the Russian Federation. – M.: 1994. Part І, Page 279.