Comment to Article 3. Operation of the legislation of the Republic of Kazakhstan on liability for administrative offenses in the space of The Code of the Republic of Kazakhstan on Administrative Offences
1. A person who has committed an administrative offense on the territory of the Republic of Kazakhstan is liable under this Code.
2. An administrative offense committed on the territory of the Republic of Kazakhstan is an act that has begun or continued or has been completed on the territory of the Republic of Kazakhstan. This Code also applies to administrative offences committed on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan.
3. A person who has committed an administrative offense on a ship assigned to a port of the Republic of Kazakhstan and located in open waters or airspace outside the Republic of Kazakhstan is subject to administrative liability under this Code, unless otherwise provided by an international treaty of the Republic of Kazakhstan. According to this Code, administrative responsibility is also borne by a person who has committed an administrative offense on a military ship or military aircraft of the Republic of Kazakhstan, regardless of its location.
4. The issue of administrative responsibility of diplomatic representatives of foreign States and other foreigners who enjoy immunity in the event that these persons commit an offense on the territory of the Republic of Kazakhstan is resolved in accordance with the norms of international law.
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Of no small importance in determining the order of application of any regulatory legal act is its effect in space, i.e. the definition of the territory of jurisdiction of the relevant document.
Within the meaning of Part 1, any person (with the exception of the persons specified in Part 4 of the commented article) who commits an administrative offense on the territory of the Republic of Kazakhstan is liable under the Code of the Republic of Kazakhstan on Administrative Offenses. Thus, the boundaries of the application of the norms of the Administrative Code are determined not just to the territory of the state, but are determined at the place of commission of an administrative offense - on the territory of the Republic of Kazakhstan.
In accordance with the Resolution of the Constitutional Council of April 23, 2003 No. 4 "On the official interpretation of paragraph 2 of Article 2 and paragraph 3 of Article 6 of the Constitution of the Republic of Kazakhstan", the territory of the State is a spatial limit in which the State exists and operates as a sovereign organization of power. She is the supreme authority in this territory, united and independent. The land, its subsoil, waters, flora and fauna, and other natural resources that cover the territory of the Republic are publicly owned by Kazakhstan.
Subsequently, the Constitutional Council clarified the interpretation of this definition in a number of its resolutions, including the regulatory resolution No. 4 dated April 25, 2019 "On the official interpretation of paragraph 2 of Article 41 of the Constitution of the Republic of Kazakhstan."
At the same time, the territory of the Republic of Kazakhstan is defined by the state border, which, in accordance with Article 1 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" means a line and a vertical plane passing along it, defining the limits of the territory of the Republic of Kazakhstan (land, waters, subsoil, airspace) and the spatial limit of the state sovereignty of the Republic of Kazakhstan. This definition contains several components, which are also explained in the noted Law.:
- territorial waters (sea) The Republic of Kazakhstan (hereinafter referred to as territorial waters (sea) is a twelve–nautical-mile wide marine belt measured in accordance with the norms of international law and the laws of the Republic of Kazakhstan from the baselines on the Caspian Sea, which is subject to the sovereignty of the Republic of Kazakhstan, and its outer limit is the State Border.;
- the continental shelf of the Republic of Kazakhstan (hereinafter referred to as the continental shelf) is a section of the seabed and subsoil measured from the State Border (the outer limit of territorial waters (seas) to the limits established by international treaties ratified by the Republic of Kazakhstan;
- the border area of the Republic of Kazakhstan (hereinafter referred to as the border area) is the State Border and the adjacent territory of the Republic of Kazakhstan to the outer limits of the border area with the existing territorial waters (sea) and internal waters of the Republic of Kazakhstan, as well as the territories of checkpoints across the State Border and other places where access is carried out across the State Border, the continental shelf and the airspace above them, within which the authorized bodies carry out border activities.
At the same time, the state border is established:
1) on land – by characteristic points, relief lines, or clearly visible landmarks;
2) on the Caspian Sea – along the outer limit of the territorial waters (seas) of the Republic of Kazakhstan;
3) on the Aral Sea – along the line of border points connecting the exits of the State Border to the shores, which does not move when the outline of the shores and the water level in the sea change.;
4) on navigable rivers – in the middle of the main fairway or talweg of the river, on non–navigable rivers, streams – in their middle or in the middle of the main branch of the river, on lakes and other bodies of water (with the exception of reservoirs specified in paragraphs 5) of paragraph 3 of this Article) - in an equidistant, median, straight or other line connecting the exits of the State Border to the shores of a lake or other body of water. The state border that runs along a river, stream, lake, or other body of water does not move when the outline of the banks or water level changes, or when the riverbed or stream diverges.;
5) on reservoirs of hydroelectric power plants and other artificial reservoirs – in accordance with the State border that passed through the area before its flooding;
6) on bridges, dams and other structures passing through rivers, streams, lakes and other bodies of water – in the middle of these structures or their technological axis, regardless of the passage of the State Border on the water.
The full sovereignty of the Republic of Kazakhstan, including the operation of administrative legislation, is ensured in the air, as reflected in Article 2 of the Law of the Republic of Kazakhstan "On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities", which states that the Republic of Kazakhstan has full and exclusive sovereignty over the airspace located over the land and water territory of the Republic of Kazakhstan. and its territorial waters.
If an administrative offense is committed in the specified territory, it is subject to review in accordance with the norms of the Code, which simultaneously regulates the measures of responsibility for its commission.
With all these general conditions, there are exceptions. Thus, attention should be paid to the Baikonur complex, located even on the territory of Kazakhstan, but under the jurisdiction of the Russian Federation in accordance with the Lease Agreement of the Baikonur complex between the Government of the Republic of Kazakhstan and the Government of the Russian Federation, ratified by Decree of the President of the Republic of Kazakhstan dated April 17, 1995.
In Part 2, the legislator stipulates that the jurisdiction of the Code applies to all administrative offenses, i.e. those that have begun, continued or ended on the territory of the Republic of Kazakhstan.
The need for this rule is caused by the variety of administrative offenses. So, the following types of offenses are distinguished::
- formal ones that are considered completed from the moment the unlawful act is committed and do not require the occurrence of unlawful consequences (for example, art. 443 - Disobedience to the lawful request of a person involved in ensuring public order);
- material, are considered completed from the moment of the occurrence of unlawful consequences (for example, art. 73-1 - Intentional infliction of minor harm to health);
- truncated ones, responsibility for which may occur even at the stage of preparation (for example: Article 478 - Actions provoking a violation of law and order in a state of emergency).
There are also differences between ongoing and ongoing offenses. It is precisely such offenses that have a temporal and spatial distribution.
A striking example of responsibility for offenses that began or ended on the territory of Kazakhstan is offenses related to crossing the State Border or transit.
Thus, even if the offense was completed outside the Republic of Kazakhstan, but started on the territory of Kazakhstan, it will be considered committed on the territory of the Republic of Kazakhstan with appropriate consequences in the form of administrative sanctions. In addition, the Administrative Code also applies to administrative offenses committed on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan.
The concept of the continental shelf is contained in the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" and was indicated above in the text.
An exclusive economic zone is a belt of maritime space located beyond and adjacent to the outer boundary of the territorial sea, with a width of up to 200 nautical miles, measured from the same baselines from which the width of the territorial sea is measured. This zone is not part of the territory of a coastal State, and the 1982 United Nations Convention on the Law of the Sea establishes a special legal regime for it.
In the exclusive economic zone, the coastal State has: sovereign rights for the exploration, development and conservation of natural resources, both living and inanimate, in the waters covering the seabed, on the seabed and in its subsoil, as well as for the management of these resources, and in relation to other types of economic exploration and development of the specified zone, such as energy production through the use of water, currents and wind; marine scientific research; protection and preservation of the marine environment; other rights and obligations provided for by the Convention (art. 56).
In Part 3, the legislator of the Republic of Kazakhstan refers to the distribution of the Code of Administrative Offences and exclusive territories, which include:
- a vessel assigned to a port of the Republic of Kazakhstan, but located in open water or airspace outside the Republic of Kazakhstan (this procedure may be changed by an international agreement);
- a military ship or military aircraft of the Republic of Kazakhstan, regardless of its location.
A civil vessel of the Republic of Kazakhstan located on the high seas is considered the territory of the Republic of Kazakhstan, since the laws of the Republic of Kazakhstan apply on a water or aircraft carrying the flag of the Republic of Kazakhstan. If a civil watercraft or aircraft of Kazakhstan is located in the territorial waters or airspace of other States, it is subject to the jurisdiction of that State.
The situation is different with a warship or a military aircraft of the Republic of Kazakhstan. A military ship or aircraft flying the flag of the Republic of Kazakhstan is considered the territory of Kazakhstan, wherever it is located. Therefore, persons who have committed an offense on a military ship or military aircraft, regardless of its location, are liable under the Code of the Republic of Kazakhstan on Administrative Offenses.
Part 4. Diplomatic immunity originates from the sources of international law, which can safely include the UN Vienna Convention on Diplomatic Relations of April 18, 1961, the UN Vienna Convention on the Law of Treaties of May 23, 1969, the UN Convention on Consular Relations of April 24, 1963, The Convention on Privileges and Immunities of the Shanghai Cooperation Organization of June 17, 2004, the Convention on Privileges and Immunities of the Eurasian Economic Community of May 31, 2001, etc.
Since international legal norms take precedence over national ones, the principle of territoriality has an exception. This is extraterritoriality, i.e. the right of diplomatic representatives located in a State to obey the laws of their own State only. This exception is called diplomatic or legal immunity. Persons enjoying immunity cannot be brought to administrative responsibility or subjected to measures to ensure proceedings on an administrative offense without their consent or the consent of the Government of the country they represent.
The immunity also extends to the territories of embassies and diplomatic missions, as well as, on the basis of international treaties, to the locations of foreign military formations on the territory of another State.
The application of the provisions of administrative legislation in relation to subjects with diplomatic immunity is regulated in more detail in chapter 49 of the 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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