Attorney for administrative disputes and court cases
The court considered in open court the case of an administrative offense against: S.A.M. in committing an administrative offense under Article 425 of Part 1 of the Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter referred to as the Code of Administrative Offenses), According to the Protocol on Administrative offense No. 126 dated December 2, 2020 S.A.K. On November 10, 2020, at 3:54 p.m., in the city of Zhitikara, he was at his workplace in the GKP "Zhitikarakommunenergo" in the building of the plumbing workshop of sewage treatment plants without a mask, in violation of the requirements of the Sanitary Rules "Sanitary and epidemiological requirements for the organization and conduct of sanitary and anti-epidemic, sanitary and preventive measures to prevent the threat of spread coronavirus infection" No. KR DSM-78 dated July 5, 2020, as well as the requirements of the Resolution of the Chief State Sanitary Doctor of the Republic of Kazakhstan dated October 23, 2020 No. o 57. During the court session, S.A.M. admitted guilt, explained to the court that on November 10, 2020, he was at the workplace of GKP Gitikarakommunenergo in the building of the plumbing workshop of sewage treatment plants without a mask, which he took off because he and his colleagues had just come in from the street after cleaning the sewer and the mask got dirty. The plumbing workshop of sewage treatment plants is 3 km away. from the city of Gitikara, which is guarded and inaccessible to other persons except employees of GKP "Gitikarakommunenergo". He does not deny the fact of being without a mask at his workplace, but due to his financial situation and being dependent on five minor children, one of whom is incapacitated, he is unable to pay the fine.
Defender Nigmetov S.D. asked the court to terminate the proceedings against S.A.M. due to the absence of an administrative offense provided for in Article 425 of Part 1 of the Criminal Code of the Republic of Kazakhstan, since according to Appendix 1 to the resolution of the Chief State Sanitary Doctor of the Republic of Kazakhstan No. 57 dated October 23, 2020, responsibility for compliance with sanitary and epidemiological requirements is assigned to the employer. In addition, the protocol on an administrative offense in connection with a gross violation of procedural rules during the proceedings should be excluded from the evidence. At the hearing, the official S.Sh.T. explained that S.A.K. violated paragraph 10, subparagraph 7 of Chapter 3 of the Sanitary Rules, according to which in public places, premises intended for visiting, servicing and recreation of the population, in public transport, the wearing of medical or cloth masks is mandatory, with the exception of children under the age of five years old, as well as cases of eating in public places while maintaining a social distance. There is no reference to the violation of these requirements in the protocol on administrative offense, since the translator made a mistake when translating from Russian into Kazakh. GKP "Zhitikarakommunenergo" was not brought to administrative responsibility under Article 425 of Part 1 of the Criminal Code of the Russian Federation, and it was not called upon to provide explanations on the case. He believes that the workplace belongs to a public place, therefore, S.A.K. is liable under Article 425 of Part 1 of the Criminal Code of the Russian Federation.
Attorney for administrative disputes and court cases
Having examined the materials of the administrative case and listened to the participants in the process, the court comes to the following conclusions. In accordance with article 781 of Part 2 of the Criminal Code on Administrative Offences, the obligation to prove the existence of grounds for administrative responsibility and the guilt of an offence lies with the body (official) authorized to conduct proceedings on administrative offences. In accordance with article 765 of the Criminal Code on Administrative Offences, the protocol on an administrative offence is one of the evidences in the case of an administrative offence. Whereas, according to the protocol on an administrative offense by an official, S.A.K. the violation of paragraph 7.8 of Chapter 3 of the "Sanitary rules "Sanitary and epidemiological requirements for the organization and conduct of sanitary and epidemiological, sanitary and preventive measures to prevent the threat of the spread of coronavirus infection", approved by Order of the Minister of Health of the Republic of Kazakhstan dated July 5, 2020 No. KR DSM-78/2020, namely – "In the case when individuals with an increased risk of COVID-19 infection are identified, they are quarantined," and paragraph 8, which states that facilities subject to state sanitary and epidemiological control and supervision are provided with sanitary anti-epidemic measures. Also, paragraph 1 of subparagraph 1 of Annex 4 to the Resolution, which specifies the algorithm for the use and disposal of personal protective equipment. Since the norms of Article 425 of Part 1 of the Administrative Code are blank, i.e. As a reference, the official should indicate which specific norms were violated by the person as the subject of an administrative offense. However, the protocol on the administrative offense does not specify the legal norms referred to by the official. Moreover, the court reliably established that on November 10, 2020, S.A.K. was at his workplace in the building of the plumbing workshop of sewage treatment plants of the GKP "Zhitikarakommunenergo" without a mask. In accordance with article 23, paragraph 25 of the Labor Code of the Republic of Kazakhstan, the employer is obliged to carry out internal control over occupational safety and health. By virtue of article 1, paragraph 1, subparagraph 53 of the Labor Code of the Republic of Kazakhstan, safety standards include the production and labor process in terms of ensuring sanitary, hygienic and other norms, rules, procedures and criteria aimed at preserving the life and health of employees during their work. In accordance with Annex 1 to the Resolution of the Chief State Sanitary Doctor of the Republic of Kazakhstan No. 57 dated October 23, 2020 (hereinafter referred to as the Resolution), the requirements for government agencies (organizations), national campaigns, business centers and other offices for the period of introduction of restrictive measures, including quarantine, are established. By virtue of paragraph 7, the administration of the authority (organization) ensures: the appointment of a person responsible for compliance with sanitary and epidemiological requirements (temperature measurement, staff instruction, timely change of personal protective equipment, monitoring of the necessary stock of disinfectants, detergents and antiseptics, logging of instruction, disposal of masks, respirators, napkins, treatment of equipment and inventory, cleaning premises); the use of gloves, masks / respirators during the working day, provided that they are changed on time, conditions under which employees in the same room will be at least 2 meters apart (observing social distancing, workplaces with antiseptics, instructing employees on the need to comply with personal/occupational hygiene rules and control over their strict observance. Thus, it follows from the content of the above-mentioned legal norms that the responsibility for compliance with sanitary and epidemiological requirements in the organization lies with the employer. At the same time, S.A.M. would be subject to individual responsibility in case of non-compliance with the employer's acts on compliance with sanitary and epidemiological requirements at the workplace. The court considers the arguments of the official S.S.T. that the workplace belongs to a public place to be untenable on the following grounds. Public places are commonly understood to mean streets, squares, public transport, airports, train stations, parks, entrances and other places where people are free to access an indefinite circle of people. By virtue of paragraph 27 of the Order of the Prosecutor General of the Republic of Kazakhstan dated September 19, 2014 No. 89 "On approval of the Rules for Receiving and Registering applications, reports or reports on criminal offenses, as well as maintaining a Unified Register of pre–trial Investigations", a public place is a specially equipped common area within or outside cities and towns intended for use by the general public, as well as holding mass events, servicing and recreation of citizens. Thus, there is no element of an administrative offense in the actions of S.A.M., provided for in Article 425 of part 1 of the Criminal Code on AP. In accordance with Article 741, part 1, subparagraph 2 of the Administrative Code, proceedings on an administrative offense cannot be initiated, and what has been initiated must be terminated if there is at least one of the following circumstances: absence of corpus delicti.
On the basis of the above and guided by Articles 741 of part 1 of subitem 5, 829-14 of part 1 of subitem 1 of the KRK on AP, the court RULED: The proceedings in the case of an administrative offense provided for in Article 425, part 1 of the Code of the Republic of Kazakhstan on Administrative Offenses against S.A.M. should be terminated due to the absence of elements of an administrative offense in his actions.
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