Comment to Article 514. Violation of the regime of the State Border of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the regime of the State Border of the Republic of Kazakhstan, expressed in non-compliance with the established procedure:
1) maintenance of the State Border of the Republic of Kazakhstan (with the exception of the section of the State Border of the Republic of Kazakhstan on the Caspian Sea);
2) crossing the State border of the Republic of Kazakhstan, if this action does not contain signs of a criminally punishable act;
3) the passage of persons, vehicles, goods and goods across the State border of the Republic of Kazakhstan;
4) entry, temporary stay, residence, movement in the border area and flying over the border area;
5) conducting economic, commercial or other activities, conducting socio-political, cultural or other events on the State Border and in the border zone, -
entails a fine for individuals in the amount of ten, for small businesses - in the amount of fifteen, for medium-sized businesses - in the amount of twenty, for large businesses - in the amount of fifty monthly calculation indices.
2. Actions provided for in the first part of this article, committed by a foreigner or a stateless person, -
They entail a fine in the amount of twenty monthly calculation indices with confiscation of vehicles and other items that are the direct subjects of an administrative offense, or administrative arrest for up to ten days or administrative expulsion from the Republic of Kazakhstan.
The State border regime operates on the State Border and in the border strip in accordance with the Law of the Republic of Kazakhstan dated January 16, 2013 No. 70-V "On the State Border of the Republic of Kazakhstan" and international treaties ratified by the Republic of Kazakhstan. On the basis of article 12 of this law, non-compliance with the established procedure is recognized as a violation of the State Border regime.:
1) maintenance of the State Border (with the exception of the section of the State Border on the Caspian Sea);
2) crossing the State border;
3) the passage of persons, vehicles, goods and goods across the State border;
4) entry, temporary stay, residence, movement in the border area and flying over the border area;
5) conducting economic, commercial or other activities, conducting socio-political, cultural or other events;
6) resolution of border incidents.
The object of the offense is the social and legal relations that arise when observing the regime of the State Border of the Republic of Kazakhstan.
The objective side of part 1 of the commented norm is expressed by illegal actions and is characterized by five qualifying signs:
Item 1. Maintenance of the State Border of the Republic of Kazakhstan (with the exception of the section of the State Border of the Republic of Kazakhstan on the Caspian Sea).
The procedure for maintaining the State Border is established by Article 13 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan". The maintenance of the State Border is carried out by authorized bodies and is aimed at ensuring and maintaining the regime of the State Border.
The content of the State Border includes the procedure for equipping and ensuring the functioning of the State border marking line (installation, preservation and maintenance of border signs, their inspection, equipment of border clearings and trails), as well as joint inspections of the State Border with the neighboring state. In sections of the State Border where the demarcation process has not been completed, the procedure for maintaining border signs and their control inspections is determined by the National Security Committee of the Republic of Kazakhstan.
Item 2. Crossing the State border of the Republic of Kazakhstan, if this action does not contain signs of a criminally punishable act. Crossing the State border is carried out in accordance with the procedure established by Article 14 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan":
1) on land, border rivers, lakes and other bodies of water – at the places of crossing the State Border established on the routes of international railway, automobile, river and other communications;
2) in airspace – at places where the State Border is crossed by international routes or along air corridors specially designated for these purposes.;
3) at sea – within the sea corridors established on the routes of international maritime communication.
The procedure for crossing the State Border within the international center for cross-border cooperation with a neighboring State, as well as the procedure for the stay of persons on its territory, are regulated by international treaties ratified by the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan.
For example, the Law of the Republic of Kazakhstan dated October 29, 2015 No. 371 ratified the Agreement between the Government of the Republic of Kazakhstan and the Government of the People's Republic of China on the regime of the Kazakh-Chinese state border.
Similar legal acts have been adopted in relation to all border States.
514 of the Administrative Code is Article 392 of the Criminal Code of the Republic of Kazakhstan, and is characterized by the following qualifying features:
1) deliberate illegal crossing of the State border of the Republic of Kazakhstan outside the checkpoints across the State Border;
2) intentional illegal crossing of the State Border of the Republic of Kazakhstan at the specified points, committed using forged documents or with the fraudulent use of valid documents of third parties, as well as in violation of the established procedure;
3) the same acts committed by a criminal group or with the use of violence or the threat of its use.
Item 3. Passage of persons, vehicles, cargoes and goods across the State border of the Republic of Kazakhstan.
The legal basis for the operation of checkpoints across the State Border is provided for in Article 19 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan. The checkpoints are home to units of regulatory authorities responsible, within their competence, for the organization of border, customs, transport, sanitary and quarantine, veterinary, and phytosanitary control. When persons are allowed to pass through checkpoints, as well as in other places where they are allowed to cross the State Border, the passport control line acts as the State Border.
The list of checkpoints across the State Border of the Republic of Kazakhstan and stationary transport control posts on the territory of the Republic of Kazakhstan was approved by Resolution of the Government of the Republic of Kazakhstan dated July 9, 2013 No. 697. This list is provided for all types of transport: automobile, railway and sea (water).
In accordance with the laws of the Republic of Kazakhstan, foreigners and stateless persons who are not allowed or restricted entry into the Republic of Kazakhstan, as well as persons against whom a decision has been taken to prohibit departure from the Republic of Kazakhstan, are not allowed to cross the State border. Foreigners and stateless persons who have arrived at a checkpoint or other place where a State Border crossing is carried out, and who have no grounds for crossing the State Border, in accordance with international treaties of the Republic of Kazakhstan, return to the country from where they arrived or to the country of their citizenship.
Item 4. Entry, temporary stay, accommodation, movement in the border area and flying over the border area.
Article 24 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" details the procedure for entry, temporary stay, residence, movement in the border strip and flights over the border strip. Entry of persons into the border strip is carried out in the designated places in the presence of identity documents and special passes issued by the Border Service of the National Security Committee of the Republic of Kazakhstan.
The heads of local executive and other state bodies are allowed to enter the border zone in the performance of their official duties in the places designated for this purpose, provided they have identification documents. Flights of aircraft that do not perform international flights in the airspace above the border strip are prohibited, with the exception of flights performed by aircraft of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan, aircraft of other authorized bodies in the performance of their assigned tasks. Authorized aviation flights in the border area are carried out with the permission of the Ministry of Defense of the Republic of Kazakhstan in coordination with the Border Service of the National Security Committee of the Republic of Kazakhstan.
Flights of aircraft that do not perform international flights in the airspace over another territory of the border area are carried out with the permission of the Ministry of Defense of the Republic of Kazakhstan with notification of the Border Service of the National Security Committee of the Republic of Kazakhstan.
Item 5. Conducting economic, commercial or other activities, conducting socio-political, cultural or other events on the State Border and in the border zone.
This procedure is established by Article 25 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan". For conducting economic, commercial or other activities, conducting socio-political, cultural or other events at the State Border and in the border strip, the Border Service of the National Security Committee of the Republic of Kazakhstan issues permits to enter and stay in the border strip in accordance with the procedure determined by the Government of the Republic of Kazakhstan.
The rules for issuing permits for entry and stay in the border zone were approved by Resolution No. 1275 of the Government of the Republic of Kazakhstan dated November 29, 2013.
Economic, commercial or other activities, socio-political, cultural or other events carried out (conducted) on the State Border and in the border strip must not:
1) damage the national security of the Republic of Kazakhstan, neighboring states or contain a threat of damage;
2) create obstacles to the maintenance of the State Border and the fulfillment of tasks by the Border Guard Service of the National Security Committee of the Republic of Kazakhstan;
3) violate the established order at the State Border.
Part 2 of the commented article provides for liability for the same actions committed by a foreigner or a stateless person.
The objective side of part 2 of the commented article is the illegal actions (omissions) listed in part 1 of this article by foreigners and stateless persons.
The subjects of these offenses provided for in Part 1 of the article under study may be individuals, as well as legal entities in the form of small, medium and large businesses that violate the State Border. According to Part 2, the subjects of the offense are foreigners or stateless persons.
Based on Article 30 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan", violators of the State Border are recognized as:
1) persons who have crossed or are attempting to cross the State Border in any way outside the checkpoints or at checkpoints and other places where crossing the State Border is carried out, in violation of the established procedure for crossing it;
2) persons who have entered or are trying to enter Kazakh or foreign vehicles traveling abroad for the purpose of illegally leaving the Republic of Kazakhstan;
3) foreign non-military vessels and warships that have entered territorial waters (sea) or internal waters, as well as the Kazakh part of the waters of border rivers, lakes and other bodies of water in violation of the established procedure for entering these waters, including foreign submarines and other underwater vehicles (objects) if they cross the State Border. borders in an underwater position or being in this position during swimming and staying in the waters of the Republic of Kazakhstan;
4) aircraft and other aircraft, including unmanned ones, that have crossed the State Border in violation of the established procedure, as well as violated the established rules for the use of airspace when traveling from the State Border to airports or airfields of destination or transit through the airspace of the Republic of Kazakhstan;
5) other persons, technical and other means who have crossed or are attempting to cross the State Border without proper permission or in violation of the established procedure.
The subjective side of all parts of the offense Can be expressed in the form of direct intent or negligence.
As an additional sanction under Part 2, administrative expulsion from the Republic of Kazakhstan is applied to the offender.
The procedure for applying administrative expulsion is defined by Article 51 of the Administrative Code and explained by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan".
They have the right to consider cases of administrative offenses provided for in the article of the Administrative Code under consideration.:
1) in part 2 – judges of specialized district and equivalent administrative courts (Part 1 of Article 684 of the Administrative Code);
2) according to part 1 - chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, the city of republican significance, the capital, their deputies (paragraph 1, part 2, art. 685 of the Administrative Code);
3) according to part 1 - heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies (paragraph 2, part 2, art. 685 of the Administrative Code);
4) according to part 1 - heads of line departments, departments, police stations of internal affairs bodies and their deputies (paragraph 3, part 2, art. 685 of the Administrative Code);
5) according to Part 1 – authorized officials of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan (parts 3 and 4 of art. 726 of the Administrative Code).
Authorized officials have the right to draw up protocols on administrative offenses under Part 2 of Article 514 of the Administrative Code.:
1) internal affairs bodies (paragraph 1 of Part 1 of Article 804 of the Administrative Code);
2) The Border Guard Service of the National Security Committee of the Republic of Kazakhstan (paragraph 44, part 1, Article 804 of the Administrative Code);
3) authorized officials of bodies that have the right to consider cases of administrative offenses provided for in Article 514 of the Administrative Code.
If the offenses provided for in the commented article are committed using vehicles, vessels, including small vessels, then on the basis of Article 797 of the Administrative Code, the above-mentioned officials have the right to detain, deliver and prohibit the operation of these vehicles. The detention, delivery and prohibition of the operation of vehicles, vessels, including small vessels, is carried out by delivering them for temporary storage to special sites, parking lots or sites adjacent to a stationary transport control post, including using another vehicle (tow truck), vessel or small vessel, until the reasons for the detention are eliminated.
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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