Comment to Article 5. Retroactive effect of the Law on Administrative Offences The Code of the Republic of Kazakhstan on Administrative Offences
1. A law that mitigates or cancels administrative liability for an administrative offense or otherwise improves the situation of a person who has committed an administrative offense is retroactive, that is, it applies to an offense committed before the enactment of this law and in respect of which the decision to impose an administrative penalty has not been executed.
2. A law that establishes or increases administrative liability for an administrative offense or otherwise worsens a person's situation is not retroactive.
The commented article follows from paragraph 5) paragraph 3 of Article 77 of the Constitution, according to which laws that establish or strengthen responsibility, impose new duties on citizens or worsen their situation are not retroactive. If, after the commission of an offence, the responsibility for it is abolished or mitigated by law, the new law applies.
Part 1. A certain period of time elapses between the commission of an offence and the application of measures provided for by administrative legislation, as well as between the issuance of a decision on the imposition of an administrative penalty and its execution, during which a new legal act may enter into force.
The question arises: can the new law be applied to an act committed before its publication? What impact does the new law have on the enforcement of an administrative penalty imposed on the basis of the old law? The commented article provides answers to these questions.
First of all, it should be noted that the new Administrative Code has expanded the range of cases where retroactive provisions are applied. If the Code of Administrative Offenses of 2001 referred only to a law that abolished or mitigated liability for an administrative offense, which extended to an offense committed before the introduction of such a law, the new Code was supplemented by a provision according to which a law that otherwise improves the situation of a person who committed an administrative offense, and in respect of which the decision to impose an administrative penalty does not apply. executed, it is also retroactive. In the latter case, we are talking about the provision of art. 919 of the Administrative Code.
Thus, Part 1 of the commented article reads as follows. A law that mitigates or cancels administrative liability for an administrative offense or otherwise improves the situation of a person who has committed an administrative offense is retroactive, that is, it applies to an offense committed before the enactment of this law and in respect of which the decision to impose an administrative penalty has not been executed.
A law mitigating liability for an administrative offense should be understood as a law that excluded a more severe penalty from a sanction, replaced a more severe penalty with a less severe one, reduced the amount of the penalty, or eliminated additional penalties. For example, the sanction of Part 4 of Article 597 of the Administrative Code for violating the rules for stopping or parking vehicles in places designated for stopping or parking vehicles with disabilities, which previously provided for a fine of 50 MCI (120,250 tenge), has been reduced to 10 MCI (24,050 tenge). Another example is the sanctions of Parts 4 and 5 of Article 246 of the Administrative Code, which exclude additional penalties in the form of suspension and revocation of an audit license.
A law abolishing liability for an administrative offense is a law that excludes articles or parts thereof in a Special Part of the Administrative Code. For example, parts 8 and 9 of Article 282 of the Administrative Code, which were excluded from the Administrative Code within the framework of the Law of the Republic of Kazakhstan dated December 25, 2017 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on taxation".
The phrase "otherwise improving the situation of a person who has committed an administrative offense" should be understood as any legal instructions that facilitate the responsibility of such persons, including reducing the administrative fine, etc.
For example, in some sanctions articles, along with a fine on an alternative basis, the Administrative Code also provides for a warning, but in practice, the authorized bodies often did not apply the institution of warning, but imposed an administrative fine immediately. At the same time, Article 43 of the Administrative Code was supplemented with a provision according to which, in the absence of aggravating circumstances, the authorized body or the court imposing an administrative penalty will be obliged to apply the institution of prevention.
When deciding on the possibility of giving retroactive effect to the law, one should take into account not only the sanctions of the compared articles of the Special Part of the Codes, but also the provisions of their General Parts. In each specific case, it is possible that, all other things being equal, the norm(s) will be included in the General Part, for example, in the form of circumstances mitigating or exempting from administrative responsibility. Or, for example, Article 741 of the Administrative Code may be supplemented by a circumstance excluding administrative proceedings.
It is important to note that laws mitigating or canceling liability are taken into account when they are applied at any stage of the proceedings on an administrative offense.
Part 2. Paragraph 5) paragraph 3 of Article 77 of the Constitution also states that laws that establish or strengthen responsibility, impose new duties on citizens or worsen their situation are not retroactive.
When explaining the provisions of the commented part, it is necessary to take into account the positions of the Constitutional Council set out by it in Resolution of the Constitutional Council of March 10, 1999 No. 2/2 "On the official interpretation of paragraphs 1 and 2 of Article 14, paragraph 2 of Article 24, subparagraph 5) paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan." In particular, he detailed the content of the constitutional norm in such a way that "those laws that regulate the legal responsibility of citizens for offenses and establish new types of responsibility or strengthen it by imposing new sanctions have no retroactive effect. This constitutional provision applies to judges, government agencies, and law enforcement officials."
Thus, a law establishing liability should be understood as a law that provides for a new offense and penalties for it, as well as an existing law that supplements the administrative offenses included in it with new structures.
For example, the Administrative Code has been supplemented with a new Article 300-1 "Exceeding by energy transmission organizations of the approved regulatory values of reliability indicators of electricity supply", according to which a fine of one hundred and twenty-five MCI is provided for officials of this organization for exceeding the regulatory values of reliability indicators of electricity supply by an energy transmission organization. Another example: art. 597 of the Administrative Code "Violation of the rules of stopping or parking vehicles" by the Law of the Republic of Kazakhstan dated May 5, 2015 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on natural Monopolies and regulated markets" was supplemented with new compositions establishing administrative liability for parking evasion in places equipped with special certified devices designed to for charging parking fees and taking into account the parking time of vehicles determined by the local executive authorities of the regions, cities of national importance and the capital (parts 4-1 and 4-2).
A law that increases liability for an administrative offense should be understood as a law that includes a new, more severe penalty in the sanction, or increases the amount of an existing penalty, or includes an additional penalty or increases its size. For example, the sanction of Article 283 of the Administrative Code provided for a fine with suspension of the license for the relevant type of activity for violation by the manufacturer or importer of the rules for labeling excisable goods subject to labeling with excise and (or) accounting and control stamps. The Law of the Republic of Kazakhstan dated December 29, 2014 "On Amendments and additions to the Code of Administrative Offences of the Republic of Kazakhstan" amended this article, according to which a manufacturer or importer violates the rules for labeling (relabeling) alcoholic beverages, with the exception of wine, beer and beer beverage, accounting and control marks and tobacco products with excise duties. stamps, along with a fine, establish additional types of penalties in the form of confiscation of excisable goods that were the direct subject of the offense, as well as revocation of a license.
The phrase "otherwise aggravating the situation of a person" includes, in particular, an increase in the amount of a fine, strengthening the procedure for the execution of an administrative penalty, etc. In such cases, the principle of retroactivity does not apply to it.
At the same time, in the course of practical activity, questions often arise about the retroactive force of the law regarding the norms of the procedural order (the Procedural part of the Administrative Code). Here it is necessary to take into account the provision of the normative resolution of the Constitutional Council of April 18, 2007 No. 4 "On the official interpretation of paragraph 2 of Article 12, paragraphs 2 and 8 of Article 62, paragraph 1 of Article 76, paragraphs 3) and 5) of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan." The Constitutional Council elaborated on the above thesis (regarding the retroactive effect of substantive norms) with the position that "the issues of retroactive effect to a law establishing or expanding procedural human rights are not regulated by subparagraph 5) of paragraph 3 of Article 77 of the Constitution."
Thus, the Constitutional Council has belittled the procedural guarantees of paragraphs 5), paragraph 3, of Article 77 of the Constitution in relation to procedural norms (using the example of criminal procedure legislation (CPC).
However, later, the legislator adopted the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts", Article 43 of which is of fundamental and decisive importance in the context of the commented article. In particular, it reads:
"1. The effect of a regulatory legal act does not apply to relations that arose before its entry into force.
2. Exceptions to the rule of paragraph 1 of this article are cases when the retroactive effect of a normative legal act or part of it is provided for by itself or by an act on the enactment of a normative legal act, as well as when the latter eliminates the duties imposed on citizens or improves their situation.
3. Regulatory legal acts that impose new responsibilities on citizens or worsen their situation are not retroactive.
4. Legislative acts that establish or strengthen responsibility, impose new responsibilities on citizens, or worsen their situation are not retroactive. If, after the commission of an offence, the responsibility for it is abolished or mitigated by law, the new law applies."
It follows from the text that regulatory legal acts that impose new duties on citizens or worsen their situation are not retroactive. And regulatory legal acts that exclude duties imposed on citizens or improve their situation extend their effect to the relations that arose before its entry into force.
Another noteworthy issue is the correlation of this norm with art. 919 of the Administrative Code.
The peculiarity of this article is that it restricts the review only in respect of those cases in which the new law mitigated or abolished liability or otherwise improved the situation of the person who committed an administrative offense, only those decisions in the case of an administrative offense that were issued but not executed.
This provision was relevant due to the adoption of the new version of the Administrative Code and, consequently, the change in the dispositions and sanctions of most articles of the special part. However, this rule has not been given a temporary character and it remains in effect to the present.
The second feature of this rule is that its second part allows you to apply retroactive force in relation to procedural rules for relations that were in force earlier. This is due to the fact that at the time of its adoption, the new Administrative Code contained greater procedural guarantees and opportunities for participants in administrative legal relations than the abolished one.
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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