Comment to article 741. Circumstances precluding proceedings in the case of an administrative offense The Code of the Republic of Kazakhstan on Administrative Offences
1. Proceedings on an administrative offense case cannot be initiated, and what has been initiated is subject to termination in the presence of at least one of the following circumstances:
1) absence of an administrative offense event;
2) the absence of an administrative offense;
3) repeal of the law or its individual provisions establishing administrative responsibility;
4) if the law or its separate provisions establishing administrative responsibility, or other normative legal act subject to application in this case of an administrative offense, on which the qualification of the act as an administrative offense depends, is recognized by the Constitutional Council of the Republic of Kazakhstan as unconstitutional;
5) expiration of the limitation period for bringing to administrative responsibility;
6) the existence of a decision of a judge, body (official) on the imposition of an administrative penalty or an undone decision on the termination of an administrative offense case, as well as the existence of a decision on the recognition of a person as a suspect on the same fact.;
7) the death of an individual, the liquidation of a legal entity in respect of which proceedings are underway;
8) in case of technical errors in the software, confirmed by the authorized body responsible for ensuring tax receipts and other mandatory payments to the budget, which led to the failure of the taxpayer to fulfill the tax obligation to submit tax reporting forms in electronic form within the time period established by the legislation of the Republic of Kazakhstan.;
9) other cases stipulated by the tax legislation of the Republic of Kazakhstan;
10) the availability of a document confirming the payment of an administrative fine in accordance with the procedure established by Article 897 of this Code;
11) the person brought to administrative responsibility has been recognized as a victim in a criminal case on a crime related to human trafficking in accordance with the procedure established by law.;
12) in connection with the reconciliation of the parties in accordance with the procedure provided for in Article 64 of this Code.
2. Proceedings on an administrative offense case shall be terminated on the grounds provided for in subparagraphs 1) and 2) of part one of this article, both if the absence of an administrative offense event or the composition of an administrative offense is proven, and if their existence is not proven, if all possibilities for collecting additional evidence have been exhausted, as well as in cases where harm is lawful. or the act was committed under circumstances that, in accordance with Chapter 5 of this Code, exclude administrative liability.
Part 1. The norms of the commented article of the Code are of particular importance for proceedings in cases of administrative offenses. In the presence of at least one of the circumstances listed in it, proceedings on an administrative offense case cannot be initiated, and what has been initiated is subject to termination in accordance with art.809 of the Administrative Code. This rule is imperative by its nature.
Compliance with the requirements of this article is also ensured by other norms of legislation defining the procedure for proceedings in cases of administrative offenses.
For example, in accordance with Article 802 of the Administrative Code, an administrative offense case can be initiated only in the absence of circumstances precluding the proceedings provided for in Article 741 of the Code. Or, a court or body (official), when considering a case of an administrative offense, is obliged to find out, among other things, whether there are circumstances precluding the proceedings (Articles 819, 829-6, 829-11). In the presence of circumstances precluding the proceedings provided for in art. 741 of the Code, a court or body (official) issues a decision to terminate the proceedings in the case (Articles 821, 829-14).
Persons in respect of whom proceedings should not have been initiated, but were subject to termination on the grounds provided for in subparagraphs 1)-7) and 11) of Part 1 of Article 741 of the Administrative Code, excluding proceedings on an administrative offense, or were not terminated from the moment they were identified, have the right to compensation for damage caused as a result of illegal actions of a judge, body (official) authorized to consider cases of administrative offenses (art. 862 of the Administrative Code).
Article 741 of the Code contains an exhaustive list of circumstances precluding proceedings on an administrative offense. Each of these circumstances deserves separate consideration.
Absence of an administrative offense event.
In this case, it is assumed that there is no information on the alleged offense that confirms the very fact of an administrative offense. This circumstance means that an act committed by an individual or a legal entity is not illegal, and it is not provided for by the Code, or no offense was committed at all. Thus, if there was no offense itself, then there can be no prosecution for it. The event and the signs of an administrative offense provided for by the Code must be proved.
The absence of an administrative offense.
The basis of administrative responsibility is the commission of an act that contains all the elements of an offense provided for in the Special Part of the Code. The composition of the offense contains such elements as the object, the objective side, the subject, the subjective side, while each of them has a specific set of features.
The object is what the offense encroaches upon, namely, public relations protected by legislation on administrative offenses.
The objective side is the external manifestation of an offense in reality: an action or omission and its consequences, and the causal relationship between them. In the dispositions of the norms of the articles of the Special Part of the Code, optional signs of the objective side of the offense may also be provided: time, place, method, situation, tools and means of committing the offense.
The subject is the person who committed the offense. Administrative responsibility is subject to: 1) a sane individual who has reached the age of sixteen by the time of the termination or suppression of an administrative offense; 2) a legal entity.
The subjective side is the internal, mental attitude of a person to the offense being committed and its consequences (intent, negligence, motive, purpose).
The absence of an administrative offense means that the fact of the act has taken place, however, there is no at least one of the above-listed signs forming the composition of the offense. The effect of the specified norm of the commented article is clearly represented by the following example.
Court No. 2 of the Zelenovsky district of the West Kazakhstan region considered an administrative case on the fact of knowingly providing false information about the fact of a corruption offense to the anti-corruption body.
According to the case file, the Department of the Agency for Civil Service Affairs and Anti-Corruption in the West Kazakhstan region received a statement from the offender regarding abuse of office by the akim of the rural district of the Zelenovsky district. According to his statement, a pre-trial investigation was conducted, as a result of which the criminal case against akim was terminated under paragraph 2 of part 1 of Article 35 of the CPC, for lack of evidence of a criminal offense.
In this regard, the prosecutor of the Zelenovsky district initiated administrative proceedings against a citizen who informed the anti-corruption body of knowingly false information about the fact of a corruption offense.
At the court hearing, the offender admitted his guilt, stating that he had not assumed and did not know that the facts stated in the statement would not be confirmed.
The court found that the events to which the offender refers in his statement partially took place in reality, but there are no signs of any offense in them, while the offender was mistaken about the legal assessment of the act of the akim of the rural district.
In this case, the offender's act lacks the elements of an administrative offense provided for in Article 439 of the Administrative Code, while there is no objective side of the offense and no subjective side, characterized only by direct intent.
In accordance with subclause 2) of Part 1 of Article 741 of the Administrative Code, proceedings on an administrative offense cannot be initiated, and those initiated are subject to termination in the absence of an administrative offense.
By a court decision, the proceedings in the case of an administrative offense against a citizen brought to administrative responsibility under Article 439 of the Administrative Code were terminated due to the absence of an administrative offense.
Repeal of the law or its individual provisions establishing administrative responsibility.
According to Article 1 of the Law of the Republic of Kazakhstan "On Legal Acts", the law is a normative legal act that regulates the most important public relations, establishes the fundamental principles and norms provided for by the Constitution of the Republic of Kazakhstan. An obligatory condition for the enactment of regulatory legal acts concerning the rights, freedoms and duties of citizens is their official publication. Legislative acts of the Republic of Kazakhstan, with the exception of resolutions of the Parliament of the Republic of Kazakhstan and its Chambers, regulatory legal decrees of the President of the Republic of Kazakhstan, the Chairman of the Security Council of the Republic of Kazakhstan, regulatory legal resolutions of the Government of the Republic of Kazakhstan, as a general rule, are put into effect after ten calendar days after the date of their first official publication, if the acts themselves or the acts on when they were put into effect, no other dates were specified.
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.
Unfortunately, it is not uncommon for a legislator to repeal certain norms of sectoral legislation that constitute the actual illegality of an act, but the norms of the Administrative Code that establish administrative responsibility for the specified action are not abolished. In this case, the subjects of administrative legal relations actually become hostages of this situation. According to the spirit of the law, they should not be held liable, but according to the letter of the law, they are subject to administrative liability.
If the law or its individual provisions establishing administrative responsibility, or other normative legal act subject to application in this case of an administrative offense, on which the qualification of the act as an administrative offense depends, is recognized by the Constitutional Council of the Republic of Kazakhstan as unconstitutional.
The court, bodies (officials) authorized to consider cases of administrative offenses, in proceedings on cases of administrative offenses, are required to strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, the Code, and other regulatory legal acts. The Constitution of the Republic of Kazakhstan has the highest legal force and direct effect on the entire territory of the Republic of Kazakhstan. In case of a conflict between the rules established by the law and the Constitution of the Republic of Kazakhstan, the provisions of the Constitution shall apply.
Resolution of the Constitutional Council of the Republic of Kazakhstan dated October 28, 1996 No. 6/2 "On the official interpretation of paragraph 1 of Article 4 and paragraph 2 of Article 12 of the Constitution of the Republic of Kazakhstan" clarified the concepts of human rights and freedoms. Recognition of rights and freedoms as absolute means their extension to every person located on the territory of the Republic of Kazakhstan, regardless of his citizenship of the Republic. The inviolability of human rights and freedoms means that a person cannot be deprived of established rights and freedoms by anyone, including the State, except in cases provided for by the Constitution and laws adopted on its basis. Laws establishing human rights and freedoms, with the exception of those listed in paragraph 3 of Article 39 of the Constitution, may be amended in accordance with the established procedure by the legislature, based on the real socio-economic capabilities of the State.
According to Article 78 of the Constitution of the Republic of Kazakhstan, the courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of man and citizen enshrined in the Constitution. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional.
Article 39 of the Constitutional Law of the Republic of Kazakhstan dated December 29, 1995 No. 2737 "On the Constitutional Council of the Republic of Kazakhstan" establishes the consequences of the adoption of final decisions of the Constitutional Council. Part 2 of this article states that "Laws and other legal acts recognized as unconstitutional, including infringing on human and civil rights and freedoms enshrined in the Constitution, lose their legal force, are not subject to application and are repealed. Decisions of courts and other law enforcement agencies based on such a law or other legal act are not subject to execution."
It is important to note that the consideration of this case, as well as identical cases, should be suspended. Upon receipt by the court of the decision of the Constitutional Council, the proceedings in the case are resumed. Decisions of courts and bodies (officials) authorized to consider cases of administrative offenses based on a law or other normative legal act recognized as unconstitutional are not subject to execution.
Expiration of the limitation period for administrative liability.
There are several similar statute of limitations in the Administrative Code: These are the limitation periods for bringing to administrative responsibility provided for in Article 62 of the Administrative Code and the limitation period for the execution of a decision to impose an administrative penalty, prescribing the need to pay a fine established by Article 890 of this Code. In addition, in certain cases it was necessary to be guided by Article 919 of the Administrative Code, especially in the first year after the entry into force of the Administrative Code. The effect of the commented circumstance is covered by the provisions of Article 62 of the Administrative Code.
A person is not subject to administrative liability after two months from the date of an administrative offense, and for committing an administrative offense in the field of the environment, as well as for violating the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy - after one year from the date of its commission, except in cases provided for by the Code.
An individual is not subject to administrative liability for committing an administrative corruption offense, as well as offenses in the field of taxation, competition protection, customs affairs, legislation of the Republic of Kazakhstan on pension provision, compulsory social insurance, energy conservation and energy efficiency improvement, state secrets, natural monopolies, subsoil and subsoil use - upon the expiration of one year from the date of its commission, and a legal entity (including an individual entrepreneur) is not subject to administrative liability for committing an administrative corruption offense, offenses in the field of legislation of the Republic of Kazakhstan on energy conservation and energy efficiency improvement, as well as on subsoil and subsoil use - after three years from the date of its commission, for offenses in the field of taxation, protection of competition, customs affairs, legislation of the Republic of Kazakhstan on pension provision, compulsory social insurance, and natural monopolies - after five years from the date of its commission. In the case of a continuing administrative offense, as well as in the case of an administrative offense in the field of budgetary relations that encroaches on the legally protected interests of society and the state, the person is not subject to administrative liability after two months from the date of detection of the administrative offense. The conditions for the expiration of the limitation period are described in more detail in art. 62 of the Administrative Code.
Paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 clarifies the specifics of the termination of an administrative case due to the expiration of the statute of limitations. Upon termination of proceedings in an administrative offense case due to the expiration of the limitation period for bringing to administrative responsibility (subclause 5) of Part 1 of Article 741 of the Administrative Code), the courts, by virtue of subclause 6) of Part 1 of Article 822 of the Administrative Code, should indicate in the decision all the circumstances established during the consideration of the case, as well as conclusions about guilt or innocence. persons in the commission of an offense.
These circumstances are important in resolving the issue of compensation for damage caused by an offense, and by virtue of Part 5 of Article 76 of the Civil Procedure Code of the Republic of Kazakhstan, they are not proven again when considering the case on the civil consequences of the same offense committed by this person.
The establishment of all the circumstances established during the consideration of the case, as well as conclusions about the guilt or innocence of a person in committing an offense when deciding to terminate the case in accordance with paragraph 5) of Part 1 of Article 741 of the Administrative Code, is questionable from a legal point of view.
In accordance with Part 1 of Article 861 of the Administrative Code, a person against whom a decision has been issued by a judge, body (official) authorized to consider cases of administrative offenses, to terminate the case on the grounds provided for in subparagraphs 1)-7) and 11) of Part 1 of Article 741 of the Administrative Code, is considered innocent and may not be subjected to any-or restrictions on the rights and freedoms guaranteed by the Constitution and laws of the Republic of Kazakhstan. Thus, the legislator considers the termination of the case due to the expiration of the statute of limitations as rehabilitating grounds, and recognizes the persons against whom the cases have been terminated as innocent. A similar circumstance in the criminal procedure legislation does not apply to rehabilitators (articles 35 and 37 of the CPC).
The presence of a decision of a judge, body (official) on the imposition of an administrative penalty or an unturned decision on the termination of an administrative offense case, as well as the presence of a decision on the recognition of a person as a suspect, in relation to the same fact.
According to Article 77 of the Constitution, when applying the law, a judge must be guided by the following principle: no one can be subjected to repeated criminal or administrative liability for the same offense. The inadmissibility of repeated administrative liability is one of the principles of the legislation on administrative offenses, according to which no one can be repeatedly brought to administrative responsibility for the same offense.
At the same time, according to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12, the imposition of a new penalty after the cancellation or amendment of an illegal decision in the case of an administrative offense, for which the penalty has already been executed, is not a re-imposition of administrative responsibility. Accordingly, such a case is not subject to termination.
Death of an individual, liquidation of a legal entity in respect of which proceedings are underway.
The fact of the death of an individual and the fact of the liquidation of a legal entity must be duly registered.
In accordance with Article 177 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", death is subject to mandatory state registration with registration authorities within the time limits established by this Code. The basis for the state registration of death is:
1) a document of the prescribed form of death issued by a medical organization;
2) a court decision that has entered into legal force to establish the fact of death or to declare the person deceased (at the place of the decision).
According to Article 50 of the Civil Code, the owner of the property of a legal entity or the body that made the decision to liquidate a legal entity is obliged to immediately inform the judicial authority that registers legal entities and the state revenue authority at the place of registration in writing or via an online resource using an electronic digital signature. The owner of the property of a legal entity or the body that made the decision to liquidate the legal entity shall appoint a liquidation commission and establish, in accordance with this Code, the procedure and deadlines for liquidation. From the moment the liquidation commission is appointed, the authority to manage the property and affairs of a legal entity is transferred to it. The liquidation commission acts in court on behalf of the liquidated legal entity.
In case of technical errors in the software, confirmed by the authorized body responsible for ensuring tax receipts and other mandatory payments to the budget, which led to the taxpayer's failure to fulfill the tax obligation to submit tax reporting forms in electronic form within the time period established by the legislation of the Republic of Kazakhstan. Other cases stipulated by the tax legislation of the Republic of Kazakhstan.
The tax legislation of the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan, consists of the Code "On Taxes and other mandatory Payments to the Budget (Tax Code)", as well as regulatory legal acts, the adoption of which is provided for by this Code. If there is a contradiction between the Tax Code and other laws of the Republic of Kazakhstan, the norms of the Tax Code apply for tax purposes. It is prohibited to include norms regulating tax relations in the non-tax legislation of the Republic of Kazakhstan, except in cases stipulated by the Tax Code.
Tax policy seeks to automate the taxation process, which is accompanied by the establishment of clear deadlines, for non-compliance with which administrative liability is provided in accordance with Chapter 16 of the Administrative Code. Any innovative activity allows for the presence of technical errors, which should not affect the rights and responsibilities of individuals and legal entities. For such cases, the legislator has provided a mechanism according to which these technical errors must be confirmed by the authorized body in the field of taxation.
Availability of a document confirming the payment of an administrative fine in accordance with the procedure established by Article 897 of the Administrative Code.
A person who has admitted the fact of committing an offense and agrees to pay a fine, based on the notification and (or) notice of attendance at the state revenue authority sent (delivered) by the state revenue authority in accordance with the legislation of the Republic of Kazakhstan, pays the fine within ten days from the day following the day of receipt (delivery) of the notification or notifications. In case of non-fulfillment of the specified requirement, Part 1 of art. According to Article 897 of the Criminal Code, proceedings on an administrative offense are conducted in accordance with the procedure provided for in the Administrative Code, that is, on general grounds.
Accordingly, the fact of such payment will serve as the basis for recognizing the existence of circumstances detracting from the proceedings in an administrative case, which, if initiated, is subject to termination in this case.
This basis was established by the legislator in order to save administrative jurisdiction.
A person brought to administrative responsibility is recognized as a victim in a criminal case on a crime related to human trafficking in accordance with the procedure established by law.
It should be mentioned that this provision was "transferred" from the old Administrative Code, which was included in it within the framework of the Law of the Republic of Kazakhstan dated July 4, 2013 No. 127-V "On Amendments and Additions to certain Legislative acts of the Republic of Kazakhstan on combating human trafficking". The main goal is to bring legislation in line with paragraph 4 of Article 7 of the Model Law on Assistance to Victims of Human Trafficking of the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States.
In connection with the reconciliation of the parties in accordance with the procedure provided for in Article 64 of the Administrative Code. Cases of administrative offences provided for in articles 73, 73-1, 73-2, 79 (Part one), 146, 185, 186, 220, 229 ( part two) These cases are initiated, among other things, at the request of the victim and are subject to termination after reconciliation with the person who committed the administrative offense. Reconciliation is carried out on the basis of a written agreement signed by the victim and the person who committed the administrative offense.
Part 2 of the commented article allows for the termination of proceedings in an administrative offense case both if the absence of an administrative offense event or the composition of an administrative offense is proven, and if their presence is not proven. These concepts are equivalent for administrative legislation. At the same time, all possibilities for collecting additional evidence of presence or absence must be exhausted.
Termination of the proceedings may also take place in case of lawful harm or in circumstances that exclude administrative liability: necessary defense (art. 35), detention of the person who committed the assault (art. 36), extreme necessity (art. 37), physical or mental coercion (art. 38), execution of an order or instruction (art. 39). In the above cases, if there are grounds provided for by the Code, it is stated that there is no corpus delicti.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
