Comment to article 135. Violation of the procedure and deadlines for submitting data on orphaned children, children left without parental care, and persons wishing to adopt children into their families, and disclosure of information about orphaned children, children left without parental care to the Republican Bank  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Violation by the heads of organizations in which there are children left without parental care, by officials of the executive bodies of the Republic of Kazakhstan, if this is an action (inaction) it does not contain signs of a criminally punishable act, as well as by persons wishing to adopt children into their families, committed in the form of:

     1) failure to comply with the deadlines for submitting information about orphaned children and children left without parental care to the Republican Database of Orphaned Children, children left without parental care, and persons wishing to adopt children into their families;

     2) providing false information about orphaned children, children left without parental care, concealment of data to be reflected in the Republican Database of orphaned children, children left without parental care, and persons wishing to adopt children into their families;

     3) illegal disclosure of data on orphaned children, children left without parental care, contained in the Republican Database of Orphaned children, children left without parental care, and persons wishing to adopt children into their families, –

     entails a fine in the amount of thirty monthly calculation indices.

     2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, –

     entails a fine in the amount of sixty monthly calculation indices

     Part 1. The public danger of the administrative offense being commented on lies in the fact that its commission impedes the proper functioning of the Republican Database of Orphaned Children, children left without parental care, and persons wishing to adopt children into their families.

     The object of the offense is the rights and interests of orphaned children, children left without parental care.

     The Republican Data Bank for Orphaned Children, children left without parental Care, and persons wishing to adopt children into their families (hereinafter referred to as the Republican Data Bank) is a database containing information about orphaned children, children left without parental care, as well as persons wishing to adopt children-orphans, children left without parental care, to be raised by their families.

     An orphan child is a child whose both or only parent have died.

     A child left without parental care, – a child who has been left without the care of a single or both parents due to the restriction or deprivation of their parental rights, recognition of parents as missing, declaration of their deceased, recognition as incompetent (with limited legal capacity), parents serving sentences in places of deprivation of liberty, parents evading the upbringing of the child or the protection of his rights and interests, including if the parents refuse to take their child from an educational or medical institution, as well as in other cases of lack of parental care.  

     Protection of the rights and interests of orphaned children, children left without parental care, is carried out by transferring them to a family for upbringing (adoption, guardianship or guardianship, foster care, foster family), and in the absence of such an opportunity - in organizations of all types for orphans, children left without parental care.

     According to Article 117 of the Code on Marriage and Family, the identification of orphaned children and children left without parental care is carried out by all individuals and legal entities who have become aware of the absence of parental care. Individuals and legal entities are required to immediately inform the bodies performing guardianship or guardianship functions about orphaned children and children left without parental care at their location.

     Officials of medical organizations, within three working days from the date of abandonment of a newborn, are required to inform the body responsible for guardianship or guardianship of the relevant administrative-territorial unit.

     When establishing the fact of the absence of care from his parents or his relatives, the local executive body is obliged to conduct an examination of the child's living conditions within three days from the date of receipt of the information and ensure the protection of the child's rights and interests until the issue of his placement is resolved.

     The local executive body of districts, cities of regional significance, cities of republican significance, the capital at the location of orphaned children, children left without parental care, within a month from the date of receipt of information about them, ensures the placement of the child (primary registration of the Republican Database).

     If it is impossible to transfer the child to a family for upbringing, after a month, he sends information about the child to the body performing the functions of guardianship or guardianship of the relevant administrative-territorial units for regional registration of the Republican Data Bank and assistance in the subsequent placement of the child into the family of citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan.

     Local executive bodies of regions, cities of republican significance, and the capital, if it is impossible to transfer orphaned children, children left without parental care, to citizens of the Republic of Kazakhstan for adoption, under guardianship or guardianship, to a foster family, or to foster care after a two-month period from the date of receipt of information about the child, are required to inform the authorized body in the field of protection of children's rights of the Republic of Kazakhstan for the centralized registration of orphans, children left without parental care, The Republican Data Bank.

     The procedure for the formation and use of the Republican Data Bank is determined by the Rules for the Formation and use of the Republican Data Bank for Orphans, children left without Parental Care, and Persons wishing to adopt children into their families, developed in accordance with paragraph 1 of Article 118-2 of the Code of November 16, 2016 No. 661 "On Marriage and family" and approved by the order of the Minister of Education and Science of the Republic of Kazakhstan.

     The objective side of the offense consists in an action (inaction), which resulted in a violation of the procedure and deadlines for submitting data to the Republican Data Bank, and the disclosure of information about orphaned children and children left without parental care.

     The offense is committed in the form of:

     1) failure to comply with the deadlines for submitting information about orphaned children and children left without parental care to the Republican Data Bank;

     2) providing false information about orphaned children, children left without parental care, concealment of data to be reflected in the Republican Data Bank;

     3) illegal disclosure of data on orphaned children, children left without parental care, contained in the Republican Database.

     Subjects of an administrative offense:

     - heads of organizations that house children who have been left without parental care. Organizations that house children left without parental care - educational, medical and other similar institutions for children left without parental care (Orphanages, specialized orphanages, special educational organizations, boarding schools, family-type children's villages, etc.);

     - officials of the executive bodies of the Republic of Kazakhstan. Officials, in accordance with the note to Article 30 of the Administrative Code, are recognized as persons who permanently, temporarily or under special authority perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative or economic functions in state institutions, quasi-public sector entities, local self-government bodies. Self-government;

     - persons who wish to adopt children into their families. These persons must meet the criteria of a person subject to administrative responsibility in accordance with Article 28 of the Administrative Code (a sane individual who has reached the age of sixteen by the time of the termination or suppression of an administrative offense).  

     It is worth noting that the heads of organizations in which there are children left without parental care, officials of the executive bodies of the Republic of Kazakhstan are held accountable under Article 135 of the Administrative Code if their actions (inaction) It does not contain any signs of a criminal offense.

     The subjective side of the offense is characterized by an intentional or careless form of guilt.  

     The person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired or consciously allowed these consequences to occur or treated them indifferently.  

     Or it is a question of a person's negligence, inattention, improper observance of the duties assigned to him. At the same time, there are both objective and subjective prerequisites for ensuring that, with due diligence and attentiveness in the performance of their duties, they can be aware of the social danger of their actions (inaction) and prevent the onset of socially dangerous consequences.

     Part 2 of the commented article defines as a qualifying feature the commission of a similar offense repeatedly within a year after the imposition of an administrative penalty under the first part of Art. 135 of the Administrative Code.  

Protocols on administrative offenses provided for in Article 135 of the Administrative Code may be drawn up by authorized officials of the authorized body in the field of child rights protection (Part 1 of Article 804 of the Administrative Code).

     Cases of these administrative offenses are considered by judges of specialized inter-district juvenile courts (Part 2 of Article 684 of the Administrative Code).

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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