Comment to article 32. Administrative liability of military personnel, prosecutors and other persons subject to disciplinary charters or special provisions for committing administrative offenses  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Military personnel and those who are liable for military service at military training camps are responsible for administrative offenses committed in the performance of their official duties, according to disciplinary regulations, with the exception of cases provided for in articles 651, 652,667, 676, 677, 680, 681 of this Code. Employees of special state and law enforcement agencies are responsible for administrative offenses committed in the performance of their official duties in accordance with regulatory legal acts regulating the procedure for serving in the relevant authorities.

     2. For violations of the regime of the State Border of the Republic of Kazakhstan, the regime at checkpoints across the State Border of the Republic of Kazakhstan and the customs border of the Eurasian Economic Union, the legislation of the Republic of Kazakhstan on state secrets, sanitary and epidemiological welfare of the population, fire safety requirements, traffic rules, customs rules outside the duty station, the legislation of the Republic of Kazakhstan on accounting and financial reporting, budget and tax legislation of the Republic of Kazakhstan, According to the legislation of the Republic of Kazakhstan on public procurement, rules of hunting, fishing, and other rules and regulations for the rational use and protection of natural resources, the persons specified in part one of this article bear administrative responsibility on a general basis. Administrative penalties in the form of deprivation of the right to carry and store firearms and cold weapons and administrative arrest may not be applied to these persons.

     3. Administrative penalties in the form of an administrative fine may not be applied to military personnel undergoing military service and cadets of military and special educational institutions.

     4. The bodies (officials) who have been granted the right to impose administrative penalties, instead of imposing administrative penalties on the persons specified in parts one and three of this article, must transmit materials on offenses to the appropriate authorities to resolve the issue of bringing perpetrators to disciplinary responsibility.

     Part 1 of Article 32 of the Administrative Code provides for the specifics of the following subjects of administrative responsibility:

     1) military personnel;

     2) military personnel who are in military training camps;

     3) employees of special government agencies;

     4) law enforcement officers.

     The first two categories are legally responsible for administrative offenses in the performance of official duties, in an administrative manner, that is, according to disciplinary statutes, with the exception of cases provided for in articles 651, 652, 676, 677, 680, 681:

     1) illegal conscription of citizens for military service and military service under contract, providing them with illegal deferrals;

     2) violation of the legislation of the Republic of Kazakhstan in the field of military service;

     3) provision of illegal material remuneration by individuals;

     4) receiving illegal material remuneration by a person authorized to perform state functions, or by a person equated to him;

     5) failure of heads of state bodies to take anti-corruption measures;

     6) hiring persons who have previously committed a corruption offense.

     That is, for the above-mentioned administrative offenses, responsibility should come only under the Administrative Code.  

     The third and fourth categories of persons (subjects of offense) are responsible for administrative offenses committed in the performance of official duties in accordance with regulatory legal acts regulating the procedure for serving in the relevant authorities.  

     Based on Article 1 of the Law of the Republic of Kazakhstan "On Special State Bodies of the Republic of Kazakhstan" dated February 13, 2012 No. 552, employees of a special state body are citizens of the Republic of Kazakhstan serving in the national security agencies, the authorized body in the field of foreign intelligence, in the State Security Service of the Republic of Kazakhstan, who have been awarded a special title.

     According to the Law of the Republic of Kazakhstan "On Law Enforcement Service" dated January 6, 2011, law enforcement officers include officials of the Prosecutor's Office, internal affairs, anti-corruption service and the Economic Investigation Service.

     The mechanism for implementing the main stages of service in the Department of Internal Affairs and the procedure for bringing to legal responsibility was approved by the Order of the Ministry of Internal Affairs of the Republic of Kazakhstan dated May 27, 2011 No. 246, which approves:

     1) rules for bringing to disciplinary responsibility employees of the internal affairs bodies of the Republic of Kazakhstan;

     2) rules of formation and work of the disciplinary commission in the internal affairs bodies of the Republic of Kazakhstan;

     3) rules for conducting an internal investigation in the internal affairs bodies of the Republic of Kazakhstan.

     The wording "administrative offenses committed in the performance of official duties" causes certain difficulties. This wording is often used in the regulatory framework, but its exact meaning is not known.

     The Administrative Code, the Law of the Republic of Kazakhstan "On Law Enforcement Service" and departmental orders of the Ministry of Internal Affairs of the Republic of Kazakhstan do not provide a complete answer, which allows courts and officials who have the right to impose administrative penalties to arbitrarily interpret the status of the subjects of the offense. 40 of the Law of the Republic of Kazakhstan "On Law Enforcement Service", which states that the length of working hours for employees is established in accordance with the labor legislation of the Republic of Kazakhstan, taking into account the specifics of the law enforcement service.

     Each law enforcement agency has a strictly regulated daily routine, determined by the specifics of its official activities and operational situation, the time of year, local conditions and other specific circumstances.

     The labor regulations establish working hours and rest periods, reception hours for citizens (the most convenient for the public), and shifts in the service of certain categories of employees, which are approved by an act of the head of a law enforcement agency or an authorized head. If necessary, employees may be involved in the performance of official duties beyond the prescribed time, as well as at night, weekends and holidays. The procedure and conditions for payment of compensation are determined by the legislation of the Republic of Kazakhstan.

     If a law enforcement officer is off duty and discovers any wrongdoing, then he must, observing the principle of "zero tolerance", respond to it. In this case, he must be recognized as an employee performing official duties after uttering the words "In the Name of the law." Based on paragraph 3 of art. 19 of the Law of the Republic of Kazakhstan "On Internal Affairs Bodies" dated April 23, 2014, "In such a case, every person is obliged to stop active actions, unconditionally obey the requirements of an employee of the internal affairs bodies and follow his instructions related to the performance of official duties."

     For patrols of the integrated police forces, the working hours are determined by the Instruction on ensuring the protection of Public Order and Road Safety of the Ministry of Internal Affairs of the Republic of Kazakhstan, approved on January 28, 2016 No. 10. It stipulates that the working time of the patrols is calculated from the moment of the start of the briefing of the squads and ends with the command of the Operational Management Center at the end of the service.

     Part 2 provides for the administrative responsibility of the subjects of the offenses specified in Part 1 of the article under study, who are generally responsible for the violation.:

     1) the regime of the State border of the Republic of Kazakhstan;

     2) the regime at checkpoints across the State border of the Republic of Kazakhstan;

     3) the regime at checkpoints across the customs border of the Customs Union;

     4) legislation of the Republic of Kazakhstan in the field of protection of state secrets;

     5) legislation of the Republic of Kazakhstan in the field of sanitary and epidemiological welfare of the population;

     6) fire safety requirements;

     7) traffic rules;

     8) customs regulations outside the place of service;

     9) legislation of the Republic of Kazakhstan on accounting;

     10) legislation of the Republic of Kazakhstan on financial reporting;

     11) legislation of the Republic of Kazakhstan in the field of budget and tax legislation of the Republic of Kazakhstan;

     12) legislation of the Republic of Kazakhstan on public procurement;

     13) rules of hunting and fishing;

     14) rules and regulations for the rational use and protection of natural resources.

     When bringing to administrative responsibility all entities specified in Part 1 of Article 32 of the Administrative Code may not be subject to administrative penalties in the form of deprivation of the right to carry and store firearms and cold steel weapons and administrative arrest.

     Part 3 states that "Military personnel undergoing military service and cadets of military and special educational institutions may not be subject to administrative penalties in the form of an administrative fine."

     In this regard, the question arises: "How can conscripts and cadets of special educational institutions be brought to administrative responsibility if the sanction does not provide for an alternative penalty to a fine?".  

The answer to this question is contained in Part 6 of Article 727 of the Administrative Code. Materials on violations committed by drivers of vehicles of the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan – military personnel and military personnel called up for training – for which a fine is provided as an administrative penalty in accordance with the established procedure, are transferred by military police authorities to the appropriate commanders (chiefs) to resolve the issue of bringing the perpetrators to Disciplinary responsibility. the Charter of the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan .

     Also, in such cases, one should be guided by Part 4 of Article 32 of the Administrative Code, sending materials to the relevant authorities to resolve the issue of bringing perpetrators to disciplinary responsibility.  

     Part 4 states that "The authorities (officials) who have been granted the right to impose administrative penalties, instead of imposing administrative penalties on the persons specified in parts 1 and 3 of this article, must transmit materials on offenses to the appropriate authorities to resolve the issue of bringing perpetrators to disciplinary responsibility." It is important to note that such disciplinary proceedings are not carried out alongside, but instead of bringing persons to administrative responsibility. That is, if the authorities (officials) who have been granted the right to impose administrative penalties determine that the person involved belongs to the persons specified in parts 1 and 3 of Article 32 of the Administrative Code, they must transmit materials on offenses to the appropriate authorities to resolve the issue of bringing the perpetrators to disciplinary responsibility.

     This is due to the fact that for such persons, disciplinary action is often a fairer and more demanding punishment than paying an administrative fine. This, in addition, contributes to the achievement of the goals of public administration and public service (including law enforcement and special services).  

     Thus, the body (official) who has been granted the right to impose administrative penalties needs to find out whether the special entity who committed the administrative offense is in the line of duty. If not, the body (official) who has been granted the right to impose an administrative penalty shall bring the special entity to administrative responsibility on a general basis, since in accordance with Part 1 of the commented article, a special entity is responsible for an administrative offense under disciplinary statutes only if it is committed in the performance of official duties.  

     In the case of transfer of material on offenses to the appropriate authorities to resolve the issue of bringing a person to disciplinary responsibility, the body (official) imposing an administrative penalty on the basis of paragraph 3, part 5, Article 821 of the Administrative Code issues a decision to terminate the proceedings in the case. A similar decision to terminate the proceedings should be issued by the court on the basis of Part 7 of art. 829-14 of the Administrative Code, with the transfer of materials to a law enforcement agency to bring the offender to disciplinary responsibility.

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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