In late February of this year, a draft Administrative Procedure Code was submitted for discussion in Astana. Now the examination of cases will occur more quickly due to a preparatory phase – the pre-trial discussions between the parties to public debate, as well as through the establishment of a separate judicial board on administrative matters.
Roman Podoprigora, Doctor of Law, Professor of the Caspian University, told CABAR about the changes and prospects in the administrative legislation of Kazakhstan in more detail.
“Acts of administrative law, as a rule, are far less visible than, for example, the acts of criminal or civil laws. It is hardly possible to meet someone who has not heard about the criminal or civil code. Of course, many have heard about the Code of Administrative Offences (CAO), but not everyone knows about the existence of laws on administrative procedures, public services, permits and notifications, state control and supervision, law enforcement service.
However, the administrative law is basically dedicated to the regulation of very painful questions of relations between citizens and public administration system.
Citizens always want to be free, and the state administration system is forced to restrict the freedom of citizens to protect public order and security, human rights, freedoms and interests of others, as well as to protect the established political, cultural and ideological foundations. The questions like how almost inevitable conflicts between the citizen and the government will be resolved, who will dominate in the event of disputes, whether citizens can effectively confront powerful state apparatus are largely dependent on administrative law.
The understanding of the mission of administrative law is very important in its analysis. By virtue of Soviet traditions (not only in Kazakhstan), it is still believed that the administrative law is created exclusively for the public administration. It’s kind of a club in the hands of the government to influence the participants of public relations. In this perspective, the repressive nature of the legislation, its focus on the issues of enforcement and responsibility of citizens and organizations, compliance and enforcement activities are not surprising.
The understanding of another mission of administrative legislation is coming with great difficulty: the protection of citizens’ interests in relations with the public administration, the creation of a framework of this administration, curbing lawlessness and bureaucratic discretion.
Therefore, any assessment of the administrative legislation or the prospects of its development should take into account the general atmosphere of relations between the citizen and the public administration, the current political regime and legal culture, and the tasks that are put in front of this legislation.
Thousands of amendments
A series of acts, very important not only for the system of administrative law, but also for the whole of Kazakhstan legislation, have been adopted during recent years.
Everybody knows, above all, the new Code of Administrative Violations of July 5, 2014. It is the third Code in the history of the Soviet and post-Soviet and Kazakhstan, but it can hardly be called “new”. In basic terms, it maintains the traditions of the Code of 2001. But remembering the haste in which it was developed, one could hardly expect a fundamentally new codified act. However, its developers had an intention to reform the Code of Administrative Offences, keeping only the so-called administrative offenses in it, i.e. those that occur during the execution of the numerous administrative regulations (sanitary, environmental, transport, customs, etc.), and whose observance is monitored by numerous regulatory authorities. They were to impose sanctions (warnings, fines) with the indispensable right to challenge such sanctions in the courts.
And all that is related to offenses against the person, property, or serious penalties (seizure, confiscation) was supposed to be part of the Criminal Code with much stronger procedural safeguards in the event of prosecution.
But in the end everything went back to the traditional understanding of the Code of Administrative Offences, which includes penalties imposed by the administrative authorities and courts for a variety of offenses that do not pose great danger to society (i.e., those that do not relate to criminal offenses and crimes).
It should be noted that such codes are characteristics of mainly post-Soviet countries. Historically, the codification of offenses not covered by the signs and characteristics of the crime was an achievement of the Soviet legal science, although the approaches are markedly different from the classic European approaches to offenses and sanctions in the field of public law.
But it is unlikely that the developers of the Code of Administrative Offences in 1970-1980s could foresee what will become of the Code of Administrative Offences in modern conditions, when administrative and legal sanctions are superior to criminal sanctions, or where the Code of Administrative Offences is almost a universal act in terms of coverage by sanctions of actions and omissions in various spheres of life. It has become commonplace that almost any new industry law provides for amendments and additions to the Code of Administrative Offences. So, according to our estimates, from 2001 to 2014, more than 200 laws were adopted that have made thousands of amendments to the Code of Administrative Offences of 2014. Hardly any other act can compete with the Code of Administrative Offences in its instability. And most of the changes meant the formation of a new article on liability, or tightening of existing sanctions.
In other countries, these issues are governed by the criminal (criminal- administrative) legislation or by special (branch) Laws. Not by accident, foreign lawyers call the Code of Administrative Offences a small criminal law (they understand administrative responsibility in a fundamentally different way – as a responsibility of the government to the citizen, and not vice versa). In the practice of the European Court of Human Rights, any administrative offense in general sense is part of criminal law.
Indeed if you look at the specific formulations, you can see that very often, the dividing line between administrative and criminal offenses extends to implications: If there are serious implications, it is the Criminal Code; if there are no serious implications, it is the Code of Administrative Offences.
Pros and cons of the Code
Of course, it is wrong to assert that the Code of Administrative Offences of 2014 did not bring anything new. There are enough fundamental and positive changes. So now it is possible to reconsider the case on the ground of newly discovered circumstances. For example, if a few years after the inspection, it became clear that the authorities have organized an inspection and assessed the fines in violation of the law, earlier (in previous legislation), it was possible to review the case only after the protest by the prosecutor, who decided whether to intervene in the case or not. Today, a review procedure can be initiated by anyone involved.
There are new agencies that can challenge the decisions of public authorities. The simultaneous responsibility of the legal entity and its employee for the same offense has been omitted. Some procedures, which traditionally were not given serious attention in the legislation on administrative offenses, have become more detailed.
The weak points of Code, however, remained: excessive repressive character, intervention in matters of private law, the inconsistency of various parts of the Code, manifestation of departmental interests.
It is fair to say that it is not so much about and not only in the Code of Administrative Offences. One may, for example, endlessly criticize the administrative violations and sanctions for violation of the rules of conduct of peaceful assemblies, rallies, marches, pickets and demonstrations. But the key issue in this case are the rules themselves in the relevant laws. If the rules were different, the responsibility for their violation would be different, too.
On the Law on Internal Affairs Bodies
For all its importance, the Code of Administrative Offences should not overshadow other acts of administrative law that have been adopted in recent years. One of these acts is the Law on Internal Affairs Bodies of the 23d of April 2014.
This Law regulates the activities of the police. Police activities are always and everywhere remain one of the most challenging in the country, both in terms of its organization and in terms of its relations with citizens and efficiency of its functions. Our own and foreign experience gives us many examples of conflicts in this area. Unfortunately, the adoption of a new Kazakh law was unfairly accompanied by increased public attention, although some of its provisions seriously change the format of relations between the police and citizens.
Here is an example of checking the documents, of one of the administrative measures, which the police often use in their work. The new law stipulates that law-enforcement bodies have the right to check the documents of individuals, confirming their identity, as well as other documents necessary to verify compliance with established rules, the control over the implementation of which is assigned to the bodies of internal affairs (such as a driver’s license). The previous law (1995) had almost the same provision, except that the check was allowed only in case of suspicion of committing crimes and administrative offenses. Thus, today the police have the right to carry out preventive checks even without any hint of an offense. Just like that. This, however, does not mean that citizens are required to carry identity documents, or that their absence is a reason for the use of other measures of administrative coercion (detention, for example). But this interpretation certainly contributes to tensions between citizens and police.
Intentionally or by negligence, developers of the law on Internal Affairs Bodies did not make a reference to the Administrative Code in the description of the powers of these bodies in the application of various enforcement measures (administrative detention, stop and search vehicles and others.), which allows interpreting the possibility of using these measures not only in connection with offenses.
Corporate governance, electronic government
A very important step in the development of administrative law is the emergence of the institute of public services, after it was decided at the political level to apply the so-called principles of corporate governance in public administration. Public authorities – within the now fashionable concept of a service State- become suppliers (not managers) of public services, and citizens and their associations become consumers of such services. Moreover, it should be noted that the impetus for the development of the institute of public services was the discontent of businesses, particularly investors, by superfluous bureaucratization of government agencies. At a certain stage, especially the economic development of the country was faced with unwieldy state apparatus, ossified forms of work, numerous manifestations of corruption, including on the grounds of lack of transparency of administrative activities, excessive licensing functions and the official red tape.
In connection with the new administrative and legal institution, standards and regulations, registers, public services, the evaluation system and monitoring their quality began to develop. At the same time, there was no any serious discussion of what is meant by public services; whether it is different from a state function, and if it is different, in what way; who provides public services and for whom. The management task of transition to the mode of public services has been solved very quickly – without any legal debate. Many manifestations of the government activity, which sometimes have nothing to do with the services, were translated and transferred to the regime of public service.
In 2013, a special Law on public services was passed. To date, the register of public services comprises 709 positions, of which 232 are only in paper form, 39 – in electronic, and 438 – in paper and in electronic form. The register is very patchy and it includes a variety of activities: issuance of certificates, permits, passports, registration of legal entities, the provision of hostels for students of universities, subsidizing interest rates on loans, training of entrepreneurs, making an appointment to see a doctor, etc. The relevant standards and regulations explain what documents must be submitted to obtain certain services, where to go, what are the terms in queue, etc.
The e-government project began to develop around the same time as the institution of public services, involving contacts between public administrations and citizens in electronic form.
All Kazakhstanis felt the convenience of new institutions. Many young people today can hardly imagine many hours of queuing in passport or other public services, accompanied by fainting and conflict. Today one can register a commercial entity in Kazakhstan during one hour, without leaving the apartment. Kazakhstan notaries are already afraid that soon they will not have work in connection with the development of electronic document processing.
Despite the obvious advantages of the new institutions, of course, there are problems. So some experts see the commercialization of state functions in the promotion of public services.
Or, the new management technologies are designed for standard situations. Once the situation goes beyond the standard, the technologies get stalled. And the protagonist is a machine, and it seems like nobody is to blame: we cannot do anything, it is a default of the machine. Databases of various state agencies are poorly integrated between each other. As a result, some legislative acts have the provisions exempting citizens from liability if the software is faltering.
Automation of the relationship between citizen and the government rules out the possibility of participation of the citizen interested in the act or action of a state body. Of course, the “proximity relationship” dramatically reduce the corruption potential, but it also dramatically increases the risk of erroneous or premature solutions that exclude the possibility to listen to the citizen or to get additional information to check.
But with all the shortcomings, the overall trend is clear – the relationship between citizens and the public administration will more and more go in the electronic environment, which will require changes in administrative law.
On the Law on Administrative Procedures
No less important and interesting are the draft administrative regulations, which, as expected, will be realized in the foreseeable future.
One such drafts is the Law on Administrative Procedures. Such laws are designed, as far as possible, to prescribe the procedural rules of public administration, establish the principles of public administration, mark the boundaries of judgement, which inevitably arises in management activities, provide the possibility of an appeal or challenge the illegal actions of state bodies.
The institute of administrative procedures has virtually not been studied by Soviet law. This can be explained: in circumstances, where there was no doubt about the rightness of the state apparatus and where state interests dominated over the interests of the individual, the proper design of procedural actions of the state administration was not necessary. Of course, it is wrong to say that there was no general regulation. There were some administrative orders: to register a marriage, it was necessary to collect a certain number of documents and perform certain procedural actions. But there were no tools, restraining public administration in its activities, the tools of citizen participation in addressing the issues that affect them.
Although if we turn to international experience, we can see that procedures are an important part of administrative law. In many countries of the world, sometimes belonging to different legal families, the administrative law is centered around administrative procedures.
By historical standards, the institute of administrative procedures is a young phenomenon. The first law on administrative procedures was adopted in Austria in 1925. In post-Soviet countries, the relevant laws have been adopted in Armenia, Azerbaijan, Belarus, Georgia, Kyrgyzstan, Latvia, Lithuania, Estonia and Tajikistan. And the laws of Kyrgyzstan and Tajikistan are very highly estimated by experts. Another thing is that not all lawyers even know about the existence of such laws, and the assessment of their impact on the formation of good governance is very ambiguous.
In Kazakhstan, there is also the Law on Administrative Procedures, adopted on November 27, 2000. But despite such a promising name, in fact, there is not so much information on administrative procedures. The law today contains only 29 articles, which speak about public bodies, their competence, functions, and legal acts, and on consideration of citizens’ appeals. It is clear that each of these issues deserves one or more acts with dozens or hundreds of articles. The impact of this law on the administrative practice is minimized. Today, therefore, the task is to draft a new law on administrative procedures, which would reflect the issues of stages, participants in such procedures; publication, entry into force, execution of acts of public administration; signing administrative contracts, etc.
The appearance of the Administrative Procedure Code
Another act that is expected in Kazakhstan is the Administrative Procedure Code, the draft of which has already been developed by the Supreme Court. It is about creating a special procedural order of consideration of disputes between the citizen and the government. This procedure is often called the administrative justice (for all variety of other definitions of administrative justice). To date, disputes between the government and citizens in Kazakhstan are considered in accordance with the Civil Procedure Code (CPC), which by its nature is designed for consideration of disputes between equal entities in the private sphere. We inherited such a situation from the Soviet era, and it has explanation.
In the Soviet political and legal culture, it was believed that citizens and public authorities cannot have disputes, and if they do, it is unlikely that the government is wrong. This approach did not imply a need to develop the institute of administrative justice, which is confirmed by the legislation. Therefore, in the current Code of Civil Procedure (as in earlier existing Codes), there are several standing alone chapters on public law disputes.
But despite the similarity of the legal judicial processes, the rules on the review of public legal disputes establish the principles and procedures that are specific to the administrative proceedings, in particular, the burden of proof (which should be borne by a public body), the more active role of the court in consideration of the dispute, reduced timing of consideration of disputes, the duty of public authorities to provide the necessary information, etc.
Today, citizens are not afraid to go to court and defend their rights and interests. Today, it is not considered that the state can do no wrong. Today the judges considering cases involving the government need managerial skills. Today, many people have understood that in disputes between citizens and the public administration, the parties are initially unequal: the citizen is facing a powerful entity (public body), having large material, personnel and information resources.
These and other factors have contributed to the fact that in Kazakhstan, the question of the establishment of a modern system of administrative justice is periodically put on the agenda. It is an essential attribute of the rule of law, public administration and administrative law. It is significant that in some countries, it is believed that the main thing in administrative law is administrative justice, not the organization of the state apparatus, police activity or administrative violations.
Administrative justice was born in France in the late 18th century. At the end of the 19th century, in many European states, were created prototypes of modern bodies of administrative justice. Despite the fact that it often the main reason for the creation of this institution was the practical implementation of the principle of separation of powers and the need to create independent control over the administration, there are deeper reasons for the birth of this institution – a reaction to the isolation and the growing power of the state administration, the need to protect the citizen from the omnipotence of this administration.
In post-Soviet countries, the administrative justice was developed relatively recently. In various forms (special units in the judicial system, special procedural acts, and/or special forces and acts), the administrative justice is present in Azerbaijan, Armenia, Georgia, Latvia. Lithuania, Ukraine and Estonia. The last example is the adoption on the 8th of March, 2015, after long discussions, of the Code of Administrative Proceedings in Russia.
If we talk about the countries of Central Asia, the Code of Administrative Procedure was adopted in Tajikistan in 2007, one of the chapters of which reads about the production of the administrative procedures in court.
In Kazakhstan, despite the lack of a single Code on administrative proceedings (administrative courts), there are administrative courts started in 2002. However, these courts have no relation to the consideration of public law disputes between the citizen and the state administration. Their powers are related to the consideration of administrative cases and complaints against the decisions made by the administrative authorities in such cases.
The situation will change in the case of the adoption of the Administrative Procedure Code. This act establishes that the administrative courts will consider public disputes.
Thus, it seems that Kazakhstan will soon join the states where administrative proceedings have been created and are functioning.
But the main thing is not in the fact that the country will create another “correct” administrative legal institution. The main thing is that this institution would not become a decoration. It must really help citizens protect their rights in relations with the public administration, contribute to raising the efficiency of public administration.
However, the same can be said about other acts of administrative legislation. It is time to abandon the view that the existence of a law or some other act will immediately solve various problems. Unfortunately, it happens that the adoption of the law further aggravates the problem. This happens when the act does not meet the principles and ideas of law, and when the paramount importance at its adoption is attached to the political and ideological interests, rather than the rights and freedoms of citizens or the public good, and when there are significant adjustments in law enforcement practices.
Administrative law may be one of the main markers for understanding the new mission of law-making in general. The long-term serving of the administrative law to the interests of the government must be in future replaced (it is less probable at the current stage), but today, it can be supplemented by serving the interests of citizens and their associations.
Both the citizen and the government are interested in good governance, based on the rule of law and justice, in reducing conflicts in the field of public law, in effective mechanism to protect the rights and freedoms of citizens. The modern administrative law should contribute to all this”.
Roman Podoprigora, Doctor of Law, Professor of the Caspian University