Comment to Article 516. Disobedience to a lawful order or request of a military officer in connection with the performance of his duties to protect the State border of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Disobedience to a lawful order or requirement of a military officer in the performance of his duties to protect the State border of the Republic of Kazakhstan -
entails a fine in the amount of ten monthly calculation indices or administrative arrest for up to five days.
2. Actions provided for in the first part of this article, committed by a foreigner or a stateless person, -
They entail administrative arrest for up to five days with administrative expulsion from the Republic of Kazakhstan.
The object of an administrative offense is public relations for maintaining the established order on the State border of the Republic of Kazakhstan
According to Article 7 of the Law of the Republic of Kazakhstan dated January 16, 2013 No. 70-V "On the State Border of the Republic of Kazakhstan", the protection of the State Border on land, in territorial waters (sea) and inland waters (including in the underwater environment) is carried out by the Border Guard Service of the National Security Committee of the Republic of Kazakhstan. The protection of the State Border in the airspace is carried out by the Armed Forces of the Republic of Kazakhstan.
In this regard, disobedience will be recognized in cases of non-fulfillment of legal requirements to a soldier of the specified units guarding the State Border of the Republic of Kazakhstan.
The objective side of part 1 of the offense under consideration is expressed by an unlawful act in the form of disobedience to a lawful order or requirement of a serviceman in the performance of his duties to protect the State border of the Republic of Kazakhstan.
Disobedience to a lawful order or requirement of a serviceman in the performance of his duties to protect the State Border of the Republic of Kazakhstan hinders the normal activities of state bodies and their officials, and the performance by government officials of their official duties to protect the State Border of the Republic of Kazakhstan.
All military personnel directly involved in the protection of the State Border of the Republic of Kazakhstan are assigned the status of military personnel performing special duties established by the Law of the Republic of Kazakhstan "On Military Service and the Status of Military Personnel" dated February 16, 2012 No. 561. The legislation defines that "military service is a special type of public service of military personnel of the Armed Forces aimed at directly ensuring military security related to the armed protection of sovereignty, territorial integrity and inviolability of the borders of the Republic of Kazakhstan."
Their legal orders and requirements are binding on citizens of the Republic of Kazakhstan, foreign citizens, stateless persons, officials of state and non-state enterprises, institutions and organizations, regardless of organizational subordination and forms of ownership, local governments.
The offense should be recognized only in cases where disobedience manifests itself only in the refusal to comply with the mandatory, persistent, repeated orders or demands of a serviceman, or in disobedience expressed in an audacious form, indicating a clear disrespect for the authorities and persons protecting the State Border of the Republic of Kazakhstan.
The perpetrators are held accountable under the commented article if the orders or demands of the serviceman were lawful, i.e. based on the requirements of the law, and given or presented in the performance of their duties to protect the State Border of the Republic of Kazakhstan.
The presence of a serviceman in the performance of duties to protect the State border of the Republic of Kazakhstan must be evidenced by the presence of an established uniform, a badge or presentation of an appropriate certificate.
According to the first part of the article under consideration, actions are classified as offenses if they were committed while preventing or suppressing any violation or unlawful behavior by military personnel in the field of protecting the State Border of the Republic of Kazakhstan within the border territory (space). Disobedience often follows another violation of the rules applicable in the field of protection of the State border of the Republic of Kazakhstan, for which administrative or criminal liability is provided by law. This is the procedure provided for in Article 58 of the Administrative Code "Imposition of administrative penalties for the commission of several administrative offenses."
The offense is considered completed from the moment the person disobeys, regardless of whether he succeeded in preventing the serviceman from fulfilling his duties to protect the state border or not.
Disobedience should be distinguished from resistance to a serviceman in the performance of his duties to protect the State Border of the Republic of Kazakhstan. Resistance, in contrast to disobedience, is always expressed in active physical opposition to the exercise by a military officer of the powers that he is entrusted with in connection with the performance of duties to protect the State Border of the Republic of Kazakhstan. These actions may involve violence or the threat of violence, as well as coercion of a serviceman through violence or the threat of violence to perform clearly illegal actions. In these cases, the perpetrators are prosecuted under articles 293, part 2, paragraph 2) or 438 of the Criminal Code.
The objective side of Part 2 of the article differs from the first one in that it explicitly provides for the administrative responsibility of a special subject of an offense, a foreigner or a stateless person, for the same acts specified in part one of Article 516 of the Administrative Code.
By the Law of the Republic of Kazakhstan dated June 19, 1995 "On the legal status of foreigners", foreigners in the Republic of Kazakhstan are recognized as persons who are not citizens of the Republic of Kazakhstan and have proof of their citizenship of another state. Persons who are not citizens of the Republic of Kazakhstan and do not have proof of their citizenship of another State are recognized as stateless persons.
The sanction of the second part of the article under study provides for an administrative penalty in the form of administrative arrest with administrative expulsion from the Republic of Kazakhstan. This shows the imperfection of the sanction, since the administrative penalty in the form of administrative arrest is meaningless for the interests of the state and even it should be considered harmful. Why should the State spend public money on keeping a foreign offender in a special detention facility for persons subjected to administrative arrest? In this regard, the sanction in the form of administrative arrest should be excluded from the sanction of part 2 of Article 516 of the Administrative Code.
The subjects of both parts of the offense are physically sane persons who have reached the age of 16 at the time of the commission of the administrative offense.
On the basis of Article 34 of the Administrative Code, foreign citizens are administratively liable on general grounds. The issue of administrative responsibility for administrative offenses committed on the territory of the Republic of Kazakhstan by diplomatic representatives of foreign States and other foreigners who enjoy immunity is resolved in accordance with the norms of international law. (art. 34 Part 3)
On the subjective side, the offense in question presupposes that the perpetrator has only direct intent.
Judges of specialized district and equivalent administrative courts have the right to consider cases of administrative offenses under the commented article.
The initiation of cases of administrative offenses under Article 516 of the Administrative Code is attributed to the competence of officials of the border authorities of the National Security Committee of the Republic of Kazakhstan (art. 804, part 1, paragraph 44).
An administrative penalty related to the expulsion of an offender from the Republic of Kazakhstan is executed by the Border Guard Service of the National Security Committee of the Republic of Kazakhstan (art. 917, paragraph 1). The mechanism of expulsion is regulated by Article 51 of the Administrative Code and clarified 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."
Administrative expulsion of foreigners or stateless persons from the Republic of Kazakhstan may be applied as both basic and additional administrative penalties (art. 42 para.1).
Article 797 of the Administrative Code stipulates that for violation of Article 516, an authorized official has the right to detain, deliver and prohibit the operation of vehicles, vessels, including small vessels, by delivering them for temporary storage to special sites, parking lots or sites adjacent to a stationary transport control post, including using another transport vehicle. vehicle (tow truck), vessel or small vessel, until the reasons for the detention are eliminated. The application of this security measure is also questionable, since in our case the vehicle is not an instrument for committing an offense and does not meet the objectives specified in Article 785 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.);
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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