In the Republic of Kazakhstan, certain categories of individuals possess privileges and immunities, which affect the procedure for bringing them to administrative liability.

Persons possessing privileges and immunities from administrative liability include:
– Deputies of the Parliament of the Republic of Kazakhstan;
– Candidates for the Presidency, candidates for Deputies of the Parliament of the Republic of Kazakhstan;
– The Chairperson, Deputy Chairperson, or a judge of the Constitutional Court of the Republic of Kazakhstan;
– Judges;
– The Prosecutor General of the Republic of Kazakhstan;
– The Human Rights Commissioner in the Republic of Kazakhstan;
– Persons enjoying diplomatic immunity from administrative liability.

The main feature of proceedings in this category of cases is the special procedural procedure for bringing individuals to liability.

Thus, with respect to persons enjoying immunity, administrative proceedings are possible only in compliance with procedural requirements, including obtaining the consent of an authorized body.

The conditions and procedure for conducting proceedings in a case of an administrative offense against persons possessing privileges and immunities from administrative liability are defined by Chapter 49 of the Code of Administrative Offenses.

For example, according to Article 870 of the Code of Administrative Offenses, a Deputy of the Parliament may not, during the term of their mandate, be subjected to compelled attendance or administrative penalties imposed through judicial proceedings without the consent of the relevant Chamber of the Parliament of the Republic of Kazakhstan.

To obtain consent to bring a deputy to administrative liability entailing the imposition of an administrative penalty through judicial proceedings, or to compel attendance, the Prosecutor General submits a representation to the relevant Chamber of the Parliament of which the person who committed the administrative offense is a deputy. The representation is submitted before the case of the administrative offense is sent to court, and also when deciding on the necessity of the deputy’s compelled delivery to the court or to the body (or official) authorized to consider cases of administrative offenses.

The decision of the relevant Chamber of the Parliament on the representation submitted by the Prosecutor General of the Republic of Kazakhstan is issued within the deadlines established by the Constitutional Law “On the Parliament of the Republic of Kazakhstan and the Status of its Deputies.”

If the relevant Chamber of the Parliament grants consent to bring the deputy to administrative liability entailing the imposition of an administrative penalty through judicial proceedings, further proceedings in the case shall be conducted in accordance with the procedure established by this Code, taking into account the specifics provided for in this Article.

If the relevant Chamber of the Parliament does not grant consent to bring the deputy to administrative liability entailing the imposition of an administrative penalty through judicial proceedings, the proceedings in the case shall be terminated on this ground.

Supervision over the legality of the judicial consideration of an administrative offense case against a Deputy of the Parliament is carried out by the Prosecutor General of the Republic of Kazakhstan.

Providing for immunity from compelled attendance and measures of administrative penalty, the provision clarifies the boundaries of such immunity only with respect to judicial decisions.

Thus, to bring the aforementioned persons to liability, it is necessary to comply with the procedural procedure provided for in Chapter 49 of the Code of Administrative Offenses.

In accordance with Article 875 of the Code of Administrative Offenses, the consideration of the case is carried out according to the general rules, with the specifics of proceedings concerning persons possessing privileges and immunities from administrative liability.

Diplomatic immunities consist of exempting diplomatic missions and their personnel from the operation of certain laws of the host state that are binding on citizens and bodies of that state, as well as on foreigners. These immunities are granted to ensure the effective performance of the functions of diplomatic missions.

Consular posts and other foreign bodies of external relations also have certain immunities, which generally coincide with diplomatic immunities.

In accordance with the legislation and international treaties ratified by the Republic of Kazakhstan, the following persons enjoy immunity from administrative liability in judicial proceedings:

1. Heads of diplomatic missions of foreign states, members of the diplomatic staff of these missions, and members of their families living with them, provided they are not citizens of the Republic of Kazakhstan;
2. On a reciprocal basis, members of the service staff of diplomatic missions and members of their families living with them, provided these staff members and their family members are not citizens of the Republic of Kazakhstan or do not permanently reside in Kazakhstan; heads of consulates and other consular officials in respect of acts committed by them in the performance of their official duties, unless otherwise provided for by an international treaty of the Republic of Kazakhstan;
3. On a reciprocal basis, members of the administrative and technical staff of diplomatic missions and members of their families living with them, provided these staff members and their family members are not citizens of the Republic of Kazakhstan or do not permanently reside in Kazakhstan;
4. Diplomatic couriers;
5. Heads and representatives of foreign states, members of parliamentary and governmental delegations and, on a reciprocal basis, staff members of delegations of foreign states arriving in Kazakhstan to participate in international negotiations, international conferences and meetings, or with other official assignments, or traveling in transit through the territory of the Republic of Kazakhstan for the same purposes, and family members accompanying such persons, provided these family members are not citizens of the Republic of Kazakhstan;
6. Heads, members, and staff of representations of foreign states to international organizations, officials of these organizations located on the territory of the Republic of Kazakhstan, on the basis of international treaties or generally recognized international customs;
7. Heads of diplomatic missions, members of the diplomatic staff of missions of foreign states in a third country traveling in transit through the territory of the Republic of Kazakhstan, and members of their families accompanying such persons or traveling separately to join them or to return to their country;
8. Other persons in accordance with an international treaty of the Republic of Kazakhstan.

The persons specified in subparagraphs 1), 4) – 7) of Part 1 of Article 876 of the Code of Administrative Offenses, as well as other persons in accordance with an international treaty of the Republic of Kazakhstan, may be brought to administrative liability only if the foreign state provides an unequivocally expressed waiver of immunity from administrative liability.

The issue of such a waiver is resolved upon the representation of the Prosecutor General of the Republic of Kazakhstan through the Ministry of Foreign Affairs of the Republic of Kazakhstan by diplomatic means. In the absence of a waiver of immunity from the relevant foreign state for these persons, administrative proceedings against them may not be initiated, and any proceedings initiated shall be terminated.

Elvira ZHANABAYEVA,
Judge of the Specialized Interdistrict Court for
Administrative Offenses of the City of Pavlodar