Administrative offense of non-execution of a judicial act | administrative case terminated due to lack of corpus delicti
The court considered in open court the case of an administrative offense against B.N.M., in the commission of an administrative offense provided for in part 1 of Article 669 of the Code of Administrative Offenses of the Republic of Kazakhstan, according to the protocol on an administrative offense dated April 28, 2022, compiled by the head of the branch "Zhitikarinsky Interdistrict Territorial Enforcement Department judicial acts" Russian State Institution "Department of Justice of Kostanay region of the Ministry of Justice of the Republic of Kazakhstan" B.A.M. It follows that " on December 27, 2021, on the basis of the executive document – writ of execution No. 3944-21-00-2\403-1 dated December 24, 2021, the Zhitikarinsky District Court initiated enforcement proceedings to recover from B.N.M. to the republican budget the amount of pension payments in the amount of 4,382,672 tenge. However, B.N.M. does not independently take all measures depending on her to execute the judicial act." These actions of B.N.M. were qualified under Article 669 of Part 1 of the Administrative Code – failure to execute a judicial act. At the court hearing, B.N.M. She pleaded not guilty at the hearing, and explained to the court that pension payments in the Republic of Kazakhstan had been suspended since June 1, 2020. Her pension payment in the Russian Federation was discontinued in 2020. She lost her citizenship of the Republic of Kazakhstan in October 2021. She lost her passport of the Russian Federation 2. Currently, she does not receive a pension in the territory of the Republic of Kazakhstan, nor does she receive a pension in Russia. She cannot travel to Russia because her passport has been lost and she has been restricted from leaving. She lives in the city of Zhitikara, Kostanay region, with her son, who fully supports her. She does not work for her old age, she does not have an independent source for the possibility of court execution. In addition, on April 27, 2022, her son paid 200,000 tenge for her against the execution of the court decision, that is, he helped her repay the debt.
She asks to take into account all the circumstances, she does not shy away from executing the court's decision, she just does not have a real opportunity to execute it. She has been permanently residing in the Republic of Kazakhstan since 1969. The official B.A.M. explained to the court that enforcement proceedings had been initiated against B.N.M. to recover from her to the republican budget the amount of pension payments in the amount of 4,382,672 tenge. However, B.N.M. does not independently take all measures depending on her to execute the judicial act." She permanently resides in the territory of the Republic of Kazakhstan with her son. She has no property outside the territory of the Republic of Kazakhstan. On April 27, 2022, her son paid 200,000 tenge against the debt. N.A.M. explained to the court that he was working as a senior inspector of the compulsory health insurance of the city of Zhitikar and the district. B.N.M. lost her citizenship of the Republic of Kazakhstan on October 5, 2021. In the certificate of loss of citizenship - January 21, 2022, the information is indicated incorrectly. Having listened to the explanation of B.N.M., the official, the witness, the defender, who asked the case to be dismissed for lack of an administrative offense, having studied the case materials, the court comes to the following conclusion. The court found that on October 5, 2021, B.N.M. lost her citizenship of the Republic of Kazakhstan, and she does not receive a pension in the territory of the Republic of Kazakhstan. It was also established that the payment of pensions in the Russian Federation was also suspended in 2020. In addition, it follows from her explanations that she lost her passport of the Russian Federation, she has no documents, and therefore, she cannot leave the Republic of Kazakhstan. In addition, a travel restriction order has been issued. The given testimony of B.N.M. They have not been refuted and are confirmed by the resolution on the temporary restriction on travel outside the Republic of Kazakhstan dated January 5, 2022. According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "On certain issues of the application by courts of the norms of the Special Part of the Code of the Republic of Kazakhstan on 3 Administrative Offenses" paragraph 29 – "When considering cases of administrative offenses under Article 669 of the Administrative Code by the courts, it should be borne in mind that the debtor does not have a real opportunity to execute a judicial act in accordance with a certain part of it or in full excludes the possibility of bringing a person to responsibility under this article. At the same time, the courts should proceed from the fact that the debtor is obliged to independently take all measures depending on him and in the most active way to facilitate the fulfillment of the duty assigned to him to execute the judicial act and the executive document." Thus, having examined all the materials in the case, the court considers that B.N.M. had no real opportunity to execute the judicial act. In addition, the court considers that B.N.M. took measures to enforce the judicial act, since on April 27, 2022, her son, with whom she is dependent, paid 200,000 tenge. The guilt of committing an administrative offense must be confirmed by a set of other reliable evidence examined at the court session. However, no other reliable evidence of B.N.M.'s guilt was presented to the court. In accordance with Article 10 of the Administrative Code, a person against whom an administrative offense case has been initiated is considered innocent until his guilt is proven in accordance with the procedure provided for in this Code and established by a legally binding decision of a judge, body (official) who reviewed the case within the limits of his authority. No one has to prove their innocence. Any doubts about guilt are interpreted in favor of the person against whom an administrative offense case has been initiated. Doubts arising from the application of legislation on administrative offences should also be resolved in his favor. Deliberate evasion from the execution of a judicial act was not confirmed at the court session. In accordance with Article 781 and Part 7 of Article 784 of the Administrative Code, the obligation to prove the existence of grounds for administrative responsibility and the guilt of an offense lies with the body (official) authorized to conduct proceedings on cases of administrative offenses. The totality of evidence is considered sufficient to resolve a case if all relevant admissible and reliable evidence has been collected that indisputably establishes the truth about each and every one of the circumstances to be proved.
According to paragraph 2 of part 1 and part 5 of Article 821 of the Administrative Code, after reviewing the case of an administrative offense, the judge, the body (official) make one of the following decisions - to terminate the proceedings in the case. A decision to terminate the proceedings in a case is made in the event of circumstances precluding the proceedings provided for in Article 741 of this Code. By virtue of Article 741, part 1, paragraph 2 of the Administrative Code, proceedings on an administrative offense cannot be initiated, and those initiated are subject to termination in the absence of an administrative offense. In such circumstances, B.N.M.'s actions lack the elements of an administrative offense provided for in Article 669 of Part 1 of the Administrative Code, therefore, in accordance with paragraph 2 of part 1 of Article 741 of the Administrative Code, the case is subject to termination and the offender is released from liability. Guided by Articles 741, part 1, subitem 2), 829-14, part 1, subitem 2) of the Administrative Code, the court RULED: Proceedings in the case of an administrative offense against B.N.M. under Article 669 of Part 1 of the Administrative Code should be terminated due to the absence of this element of an administrative offense in her actions. Lawyer Almaty Zanger Almaty Korgaushi Almaty Zan kyzmeti Kykyk korgau Kookyktyk komek Zanger kens Azamattyk isteri Kylmystyk isteri Akimshilik isteri Arbitration daulary Zanger kens Kazakhstan Lawyer Kazakhstan Zanger Kazakhstan Lawyer Kazakhstan Kazakhstan Korgaushi Kazakhstan Zan companiyasy
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