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Administrative Procedures: Kazakhstan and Foreign Experience

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Administrative Procedures: Kazakhstan and Foreign Experience Universal Decimal Classification 342.92 Podoprigora R.A. Administrative Procedures: Kazakhstan and Foreign Experience Professor of Caspian University (Almaty, Kazakhstan), Doctor of Law. The article is dedicated to the issues of the current status and development of ad- ministrative procedures in Kazakhstan. The author also considers difficulties which can arise in the preparation of the draft of the Law On Administrative Procedures and pos- sibilities for implementation of foreign experience. Keywords: Kazakhstan, administrative law, administrative procedures. The main administrative and legal problematics in Kazakhstan has recently focused on three issues: administrative procedures, administrative justice and administrative violations. The vast majority of conferences, round tables and discussions, one way or another, is connect- ed to these issues. At that, it is interesting that many local lawyers, professional legal communities, and state structures consider attention to administrative violations as top-priority. Much less atten- tion is paid to other various administrative and legal institutions. It should be recognized that, in many ways due to our foreign colleagues and various pro- jects with different level if success working in Kazakhstan, the most important issues of admin- istrative law (administrative procedures and administrative justice) are put on the agenda, turn into draft laws and are constantly included in the programs of legal reforms. 2 This approach is very illustrative. For many Kazakhstani lawyers of different levels ad- ministrative law has remained a public administration right, a kind of truncheon to impact on citizens and organizations. Another purpose of administrative law is restraining of public ad- ministration, protecting the rights of citizens in the public sphere remains in the background. That is why such a seemingly complicated from the point of view of legal technique act as the Code of Administrative Offenses has been developed and adopted in less than one year1, but the issues related to administrative procedures and administrative justice are being dis- cussed with varying degrees of intensity for years, and cannot be resolved. Although if you take a formal look at the Kazakh legislation, then everything is not so bad. Fifteen years ago the Law on Administrative Procedures was adopted2. But, in spite of such a promising name, the very administrative procedures were given a very little space there. To date the law contains only 32 articles which refer to state bodies, their competence, func- tions, and the consideration of citizens’ appeals. It is clear that each of these issues deserves one or several acts with tens or hundreds of articles. Until recently, the value of the law on administrative procedures was that it was the only one in the all Kazakhstan legislation which at least from behind spoke about individual (admin- istrative acts) of state bodies. But, as a result of the adoption of the Law on Legal Acts in Ka- zakhstan, issues related to individual acts were withdrawn from the Law on Administrative Procedures. Many other issues on administrative procedures (participants, stages, types, entering into force of acts, execution of acts and etc.), which are characteristic for the laws on administrative procedures of different countries, were absent in the law On Administrative Procedures and, to- day, are absent in the Law on Legal Acts. But since the procedural activities of the public administration cannot in principle remain without normative regulation, such activity has been become being regulated by laws and sub- ordinate acts affecting various aspects of state administration: registration, licensing, control and supervision, consideration of applications, etc3. 1 July 5, 2014 a new Code of Administrative Offenses was adopted in Kazakhstan. Gazette of the Parliament of the Republic of Kazakhstan. 2015. no. 18-II, article 92. 2 Law of the Republic of Kazakhstan On Administrative Procedures from November 27, 2000. Gazette of the Parliament of the Republic of Kazakhstan. 2000. no 20, article 379. 3 See, for example: The Entrepreneurship Code of the Republic of Kazakhstan from October 29, 2015. Gazette of the Parliament of the Republic of Kazakhstan. 2015. no. 20-II, 20-III. article 112; Law of the Republic of Kazakhstan On the Procedure for Con- 3 At the same time, the relevant normative legal acts are traditionally aimed at explaining the procedural actions of public administration; there is no place for the rights and freedoms of citizens, with the exception of the right to appeal, in such procedures. A very important stage in the development of administrative procedures was the appear- ance of the institute of public services after taking of a decision at the political level to move the public administration to the so-called “corporate governance model”. At that, we shall note that the impulse to the development of this institute became dissatisfaction of business, and es- pecially investors, with an excessive bureaucratization of government bodies. At a certain stage, first of all, the economic development of the country faced a clumsy state apparatus, stagnant forms of work, numerous corruption manifestations, including due to the lack of transparency in administrative activity, and the redundancy of licensing functions that were traditional for bureaucracy. Due to the new administrative and legal institute the standards, regulations, registers for public services, quality assessment and monitoring systems for these services began to be de- veloped. At the same time, there was no serious discussion of what shall be understood as a public service; whether it differs from a state function, and if differs by whom and with relation to whom it may be exercised. For some time general provisions on public services were in the Law on Administrative Procedures, thus confirming that administrative procedures had to cover the procedures for the provision of public services. But, a separate Law on Public Services4 was adopted in 2013, which removed public services from under the Law on Administrative Procedures. To date, the register of public services includes more than 700 items the majority of which is in paper and electronic form5.The register is very diverse and covers both completely explainable actions: issuing certificates, licenses, permits and those that cause questions: sideration of Appeals from Individuals and Legal Entities from January 12, 2007. Gazette of the Parliament of the Republic of Kazakhstan. 2007. No. 2. article 17; Law of the Republic of Kazakhstan On Permits and Notifications from May 16, 2014. Gazette of the Parliament of the Republic of Kazakhstan. 2014. no 9. article 51. 4 Law of the Republic of Kazakhstan On Public Services from April 15, 2013. Gazette of the Parliament of the Republic of Kazakh- stan. 2013. no. 5-6, article 29. 5 Decree of the Government of the Republic of Kazakhstan On Approval of the Register of Public Services from September 18, 2013. Collection of Acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan. 2013. no. 55, article 769. 4 providing a hostel for high school students, subsidizing the fee rates on loans, training private entrepreneurs, making an appointment to a doctor. For the majority of these services, the standards and regulations of public services (ap- proved by the Government Decree), which contain numerous administrative procedures, have been adopted. In addition to the standards and regulations there are still various departmental rules that also contain administrative procedures that are sometimes contrary to the standards and regulations. Sectoral legislation (tax, customs, antitrust) in its turn establishes its own pro- cedural rules. Thus, there is an obvious spontaneous process of rule-making, both at the level of laws and at the level of by-laws on the issues of administrative procedures. The general trend is that any external activity of the public administration falls under the regime of public services. In addition to everything said, the e-government project involving contacts between the public administration and citizens solely in electronic form is gaining momentum. The project is very good: today you can register a commercial legal entity in Kazakhstan in one hour with- out leaving your apartment. Kazakhstan notaries – due to the development of electronic tech- nologies – are already afraid that they will soon be out of work. But the legal support for these processes is not keeping up with the technologies. Today there is a contradictory situation on the issue of the legal regulation of administra- tive procedures in Kazakhstan. On the one hand, the issues of these procedures are constantly being discussed. Everyone everywhere talks about the importance of these laws, conferences and round tables are held. On the other hand, there is already an informal opinion on the serious discontent of the state apparatus with the law on administrative procedures and resistance to its adoption. And this is quite understandable: despite all doubts about the effectiveness of good laws in the relevant political and legal environment and culture, a qualitative law on administra- tive procedures, in any case, will significantly change the format of relations between a citizen and the state apparatus. One can agree or disagree with such an explanation, but the adoption of a new version of the Law on Administrative Procedures (as well as the Administrative Proce- dure
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