Comment to article 149. Failure to perform and (or) improper performance of duties to ensure anti-terrorist protection and maintain an adequate level of security for an object vulnerable to terrorism  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Non-fulfillment and (or) improper fulfillment by the owner, owner or head of an object vulnerable to terrorism, or by a security company that has concluded a contract for the provision of security services for an object vulnerable to terrorism, of duties to ensure anti-terrorist protection and compliance with the proper level of security of the facility entrusted to him –

     They impose a fine on individuals or officials in the amount of one hundred, on small businesses or non-profit organizations - in the amount of two hundred, on medium–sized businesses - in the amount of three hundred, on large businesses - in the amount of five hundred monthly calculation indices.

     2. Actions (inaction) provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –  

     entail a fine on individuals or officials in the amount of two hundred, on small businesses or non–profit organizations – in the amount of three hundred, on medium-sized businesses - in the amount of five hundred, on large businesses – in the amount of one thousand monthly calculation indices, with or without suspension of activities or certain types of activities for up to three months.

     The public danger of an administrative offense under Article 149 of the Administrative Code lies in the fact that its commission can lead to such negative consequences as a violation of legislation aimed at ensuring anti-terrorist protection and maintaining an adequate level of security for an object vulnerable to terrorism.  

     The object of the offense is public relations in the field of property law. An additional object is relations in the field of compliance with legislation aimed at countering terrorism.  

     Public relations in the field of anti-terrorism legislation are regulated by the Law of the Republic of Kazakhstan dated July 13, 1999 "On Combating Terrorism" and other regulatory legal acts.  

     According to paragraph 16 of Article 1 of this Law, objects vulnerable to terrorism are particularly important state, strategic facilities and facilities of economic sectors of strategic importance, hazardous production facilities, mass gathering facilities, the list of which and the relevant requirements for them are determined by the Government of the Republic of Kazakhstan.  

     Resolution of the Government of the Republic of Kazakhstan dated April 3, 2015 No. 191 "On Approval of requirements for the system of anti-terrorist protection of facilities vulnerable to terrorism" regulates the procedure for submitting requirements to the system of anti-terrorist protection of facilities vulnerable to terrorism.  

     Every facility vulnerable to terrorism included in the list of facilities of the Republic of Kazakhstan vulnerable to terrorism must have an anti-terrorist protection system in accordance with these requirements for the anti-terrorist protection system for facilities vulnerable to terrorism.  

     Data on an object vulnerable to terrorism should be reflected in the standard passport of anti-terrorist protection of objects vulnerable to terrorism.  

     In accordance with paragraph 12 of Article 3 of the said Government decree, the anti-terrorist protection system for facilities vulnerable to terrorism is understood as a set of components of engineering and technical fortification, access control and management systems, communication and notification systems, television video surveillance systems, as well as lighting used in buildings, structures, structures and other facilities to ensure their safety. anti-terrorist security.  

     The objective side of the analyzed administrative offense is expressed in the non-fulfillment and (or) improper fulfillment by the owner, owner or head of an object vulnerable to terrorism, or by a security company that has concluded an agreement on the provision of security services for an object vulnerable to terrorism of duties to ensure anti-terrorist protection and the proper level of security of the facility entrusted to him.  

     In accordance with Articles 10-3 of the Law of the Republic of Kazakhstan "On Countering Terrorism", owners, owners, managers or other officials of facilities vulnerable to terrorism, regardless of their forms of ownership, are required to implement measures to prevent terrorist activity, as well as to protect facilities against terrorism and maintain an adequate level of security.:  

     1) ensuring the appropriate access control, equipping facilities with modern engineering and technical security equipment in accordance with the requirements imposed on them;

     2) development on the basis of a standard passport – a passport of anti-terrorist security of the facilities entrusted to them;  

     3) carrying out preventive and educational measures to train personnel in the technique of inspecting premises, identifying possible locations for laying explosive devices;

     4) planning and working out joint actions with interested government agencies and organizations to eliminate man-made threats that have arisen as a result of a committed act of terrorism;

     5) organization of protection of information networks of the facility, ensuring information security.

     Failure to fulfill obligations to ensure anti–terrorist protection and to maintain an adequate level of security for an object vulnerable to terrorism entails responsibility only if there are two criteria: objective – the person is obliged to act; subjective - the person could act.  

     Accordingly, bringing a person to administrative responsibility under Article 149 of the Administrative Code will be possible only when the owners, owners or managers of an object vulnerable to terrorism, or subjects of security activities, having concluded an agreement on the provision of security services for an object vulnerable to terrorism, have not fulfilled the obligations provided for in Articles 10-3 of the Law of the Republic of Kazakhstan "On Combating Terrorism".  

     The objective side of non-fulfillment or improper fulfillment of duties to ensure anti-terrorist protection and compliance with the proper level of security of an object vulnerable to terrorism is expressed as follows: owners, owners or managers of an object vulnerable to terrorism, or subjects of security activities, having concluded an agreement on the provision of security services for an object vulnerable to terrorism, is expressed in the absence or improper performance of duties:  

     - to ensure the appropriate access regime;  

     - to equip facilities with modern engineering and technical security equipment in accordance with the requirements imposed on them;

     - not developed on the basis of a standard passport – the passport of anti-terrorist security of the facilities entrusted to them;  

     - preventive and educational measures have not been carried out or have not been carried out at the proper level to train their personnel in the technique of inspecting premises, identifying possible places of laying explosive devices, and the proper use of technical means of anti-terrorist protection.  

     For example, the specialized interdistrict administrative court of Almaty considered a case of an administrative offense under art. 149 Part 1 of the Administrative Code, in relation to LLP "G.Department store" - temporarily owns the shopping center "G".  

     In the period from December 26 to December 31, 2016, an inspection was carried out to ensure compliance with the requirements of the Law of the Republic of Kazakhstan "On Countering Terrorism", Government Resolutions No. 1271 dated 11/12/2013, No. 191 dated 04/03/2015).

     According to the results of the inspection: the checklist and the Act on the results of the inspection for No. 1540 in the shopping center "G" revealed violations of the requirements of66,67,68,69,70,71,72,73 Resolution of the Government of the Republic of Kazakhstan No. 191 dated 04/03/2015 on the security alarm system; on the access control and management system; by the television video surveillance system and by the notification system.

     By the decision of the court of LLP "G.The Department Store was found guilty and an administrative penalty was imposed in the form of a fine in the amount of 300 monthly calculation indices in the amount of 636,300 tenge.

     An administrative offense under Article 149 of the Administrative Code will be considered completed from the moment of committing actions or omissions to ensure anti-terrorist protection and maintaining an adequate level of security for an object vulnerable to terrorism.  

     The subjects of the offense can only be the owners, managers of an object vulnerable to terrorism, or a security company that has concluded an agreement on the provision of security services for an object vulnerable to terrorism.  

The subjective side of this offense is a constructive feature of the analyzed article. In relation to the occurrence of harmful consequences, guilt can be expressed in an intentional or careless form. The perpetrator is aware that he is violating the procedure for carrying out anti-terrorist activities of an object vulnerable to terrorism, duties to ensure anti-terrorist protection and the proper level of security of the object entrusted to him, foresaw the harmful consequences of this violation, desired or consciously allowed these consequences to occur, or treated them indifferently. Either the perpetrator foresaw the possibility of harmful consequences of failure to fulfill the duty of raising and educating the child, but without sufficient reason thoughtlessly counted on their prevention, or did not foresee the possibility of such consequences, although with due care and foresight he should have and could have foreseen them.

     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. 149 of the Administrative Code.

     The suspension of certain types of activities for a period of up to 3 months or without such is provided as a mandatory additional type of penalty.  

     In accordance with paragraphs 1) of Part 1 of Article 804 of the Administrative Code, protocols on administrative offenses provided for in Article 150 of the Administrative Code may be drawn up by authorized officials of the internal affairs bodies and the State Security Service of the Republic of Kazakhstan when conducting security measures for administrative offenses committed by military personnel of the State Security Service of the Republic of Kazakhstan).  

     According to Part 1 of Article 684 of the Administrative Code, judges of specialized district and equivalent administrative courts have the right to consider cases of an administrative offense under Article 149 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.);  

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

     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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