Comment to article 802. Reasons and grounds for initiating an administrative offense case The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Comment to article 802. Reasons and grounds for initiating an administrative offense case The Code of the Republic of Kazakhstan on Administrative Offences

1. The reasons for initiating an administrative offense case are:

1) direct detection by an authorized official of the fact of committing an administrative offense, taking into account the provisions of part three of this article;

2) materials received from law enforcement agencies, as well as other government agencies and local self-government bodies;

3) messages or statements of individuals and legal entities, as well as messages in the mass media;

4) indications of special automated measuring devices, as well as certified special control and measuring equipment and monitoring devices, including those operating in automatic mode and recording the commission of an administrative offense in the field of motor transport and road safety through photo and video recording of the traffic situation, determining the speed and direction of movement of the vehicle, actions of other participants road traffic;

5) indications of control and measuring equipment and (or) means of radio control.

2. The basis for initiating proceedings on an administrative offense is the availability of sufficient data indicating signs of an administrative offense in the absence of circumstances precluding the proceedings provided for in Article 741 of this Code.

3. The grounds for initiating an administrative offense case in accordance with subparagraph 1) of part one of this article in respect of the subject of control and supervision are the result of an inspection conducted in accordance with the procedure established by the Business Code of the Republic of Kazakhstan, as well as the result of preventive control and supervision with a visit to the subject (object) of control and supervision in the cases provided for in part three of paragraph 3 of the Article 137 of the Entrepreneurial Code of the Republic of Kazakhstan.

This part does not apply to cases of detection of signs of an administrative offense when exercising control and supervision in the areas provided for in paragraphs 4 and 5 of Article 129 and paragraphs 3 and 5 of Article 140 of the Business Code of the Republic of Kazakhstan, as well as in the field of state statistics when carrying out preventive control without visiting respondents.

4. An administrative offense case shall be considered initiated from the moment of drawing up the first protocol on the application of measures to ensure the proceedings in the case of an administrative offense provided for in Article 785 of this Code, drawing up a protocol on an administrative offense, or issuing a decision by the prosecutor to initiate an administrative offense case, as well as announcing by the judge (court) that the fact of contempt of court has been established. on the part of the person present during the trial.

In the event that an administrative offense is recorded by certified special control and measuring equipment and devices operating in automatic mode, the case of an administrative offense is considered initiated from the moment of sending an order on the need to pay a fine in accordance with the procedure provided for in Article 743 of this Code, and in the case of administrative offenses, cases on which are considered by the state revenue authorities, An administrative offense case is considered initiated from the moment of proper delivery of the notification (notice).

Part 1. The initiation of an administrative offense case is the initial stage of the proceedings, which is crucial in determining the event of an administrative offense, recording the circumstances related to this event, and determining the jurisdiction (jurisdiction) of the case.

The commented article establishes an exhaustive list of reasons for initiating an administrative offense case. These include:

1) direct detection by an authorized official of the fact of committing an administrative offense is the discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the existence of an administrative offense event.

This reason entails activities to prevent an offense, to record evidence of its commission, since this activity is reflected in procedural documents (in the protocol on an administrative offense, in the protocol on the application of measures ensuring the proceedings on an administrative offense, in the report, in the audit reports). For example, a police officer, while patrolling, detects a violation of traffic rules by the driver of the car, the fact of detection will be the basis for initiating administrative proceedings.;

2) materials received from law enforcement agencies, as well as other state bodies, local self–government bodies - such materials may include acts of inspections of local self-government bodies containing data indicating the existence of an administrative offense event, however, these bodies are not authorized to review the case and draw up administrative protocols. In such cases, the materials are transferred by jurisdiction in accordance with Chapter 36 of the Administrative Code.;

3) messages or statements from individuals and legal entities, as well as media reports, are messages and statements from individuals and legal entities indicating the existence of an administrative offense event. Anonymous reports from citizens about administrative offenses committed are not subject to review. In accordance with paragraph 1 of Part 1 of art. 5 of the Law of the Republic of Kazakhstan "On the procedure for considering appeals from individuals and legal entities", anonymous appeals are not subject to consideration, except in cases where such appeals contain information about upcoming or committed criminal offenses or a threat to state or public security.

Publication in the mass media, after verification by authorized persons, may also serve as a reason for initiating an administrative offense case. In accordance with clause 4 of Article 1 of the Law of the Republic of Kazakhstan "On Mass Media", mass media refers to periodicals, television, radio channels, documentary films, audiovisual recordings and other forms of periodic or continuous public dissemination of mass media, including online resources. Media reports are an independent reason for initiating an administrative case. Unlike statements and letters sent to government agencies, citizens' messages published in the press or broadcast on radio or television are addressed not only to bodies authorized to initiate administrative proceedings, but also to a wide range of the public, to readers who expect a proper response to the publication.;

- Sergek intelligent video monitoring, analysis and forecasting system;

- Integra KDD photo and video recording system;

- RedSpeed automatic speed measuring radars;

- stationary photoradar complexes "Krechet-S" and others.

The process of initiating an administrative offense case, recorded by special automated measuring instruments, has its own specifics;

5) indications of control and measuring equipment and (or) radio control equipment - as in the previous paragraph, we are talking about technical equipment that does not operate automatically, but under the guidance of an official.

These include devices for determining the speed of a car (radar) used by employees of the highway patrol police, devices for weighing trucks used by the transport control inspectorate, etc. Also, the reason for initiating an administrative case under this sub-item will be the detection and recording of an administrative offense by the cameras of the Operational Control Centers City police departments. For example, a Central Control Center employee detects an administrative offense using video surveillance cameras, he transmits data on the offender to the nearest patrol, for them this information will be the reason to initiate administrative proceedings.

Part 2. The basis for initiating an administrative offense case is the availability of sufficient data indicating signs of an administrative offense in the absence of circumstances precluding the proceedings provided for in Article 741 of the Administrative Code.

The authorized body (official), having received one of the reasons for initiating an administrative offense case, must examine the offense for sufficient data indicating signs of an administrative offense.

The signs of an administrative offense include: illegality, culpability, and punishability. If all the signs are present, an official may initiate an administrative offense case. Let's look at each of these characteristics.

1. Illegality means that by committing this act (action or omission) the norms of law are necessarily violated. No act can be recognized as an administrative offense and administrative liability cannot arise for its commission, unless the norms of law have been violated.

2. The culpability of an act implies that it was committed in the presence of guilt. The absence of guilt in no case allows us to consider this act (even if it is illegal) an administrative offense. The guilt of an individual comes in two forms: in the form of intent and in the form of negligence. The culpability of an act indicates that it was committed either intentionally or through negligence.

3. The punishability of an act means that administrative responsibility must be established in the Administrative Code for the commission of this act (inaction) of an individual or legal entity.

If at least one of the signs of an administrative offense is not seen in the actions of a person, then the official, even if there are reasons to initiate administrative proceedings, does not have the right to initiate proceedings on an administrative offense. For example, a car driver ran into a traffic light and collided with another vehicle, the perpetrator, who had not previously suspected his illness, suddenly had a heart attack before the intersection, leg cramps appeared, he lost consciousness, etc., as a result of which he was unable to drive the vehicle. There may be other force majeure circumstances in which a person violates a legal norm without intent or negligence. In all these cases, due to the absence of guilt, the act cannot be recognized as an administrative offense, and the responsibility of the person does not occur.

To initiate an administrative case, not only a reason and grounds are necessary, but also the absence of circumstances preventing this.

The current legislation defines the following circumstances that exclude proceedings on an administrative offense (art. 741 of the Administrative Code):

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 art.;

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 the Administrative Code. In these circumstances, the case is subject to mandatory termination.

Part 3 of the commented article defines the procedure for initiating proceedings against the subject of control and supervision, established by the Business Code of the Republic of Kazakhstan. This part also indicates exceptions in the initiation of proceedings and the identification of signs of an administrative offense in the exercise of control and supervision, the norm is a reference to the Business Code of the Republic of Kazakhstan (paragraphs 4, 5 of Article 129; paragraphs 3, 5 of Article 140).

Part 4. Initiation of an administrative offense case is the initial stage of the proceedings. In relation to proceedings on cases of administrative offenses, this stage has a specific procedural formalization. Its essence consists in drawing up a special procedural document, namely, a protocol on an administrative offense.

Since the preparation of such a protocol falls within the competence of the relevant authorized official, because it is he who initiates the initiation of the case. This point deserves attention, since administrative proceedings may otherwise be initiated by citizens, legal entities, and even local governments. Thus, complaints proceedings begin from the moment a citizen submits a complaint about illegal actions of executive bodies (officials), etc.

If a case is not initiated by an official, he/she has no right to refuse to initiate it; in case of his/her incompetence, his/her duties include explaining the procedure established for initiating this case or referring the case according to his/her jurisdiction.

The initiation of a case by its legal significance can be qualified as a procedural action that is a legal fact; it entails the emergence of a specific administrative procedural relationship.

A case on an administrative offense is considered initiated from the moment of drawing up a protocol on its commission or the first protocol on the application of procedural measures or the issuance by the prosecutor of a decision on the initiation of administrative proceedings.

Also, an administrative offense case will be considered initiated from the moment the judge announces the fact of contempt of court by persons present in the courtroom.

There is a special procedure for initiating proceedings in the case when an offense is recorded by special technical means operating in automatic mode. A protocol is not drawn up, but an order is formed on the need to pay a fine. Since the owner of the vehicle is not present during the process of drawing up the order, the case is considered initiated from the moment the order is sent, provided for in art. 743 of the Administrative Code.

At the same time, Part 4-1 of Article 743 of the Administrative Code states that the order on the need to pay a fine is recognized as duly delivered in the following cases::

1) sending by registered mail, which is delivered to the owner (owner) of the vehicle personally or to one of the adult family members living together with him against a receipt for the delivery notification to be returned to the sender. An instruction on the need to pay a fine sent to a legal entity is handed over to the head or employee of the legal entity, who signs the receipt of the instruction on the delivery notification indicating his last name, initials and position.;

2) the addressee's refusal to accept the order on the need to pay a fine. At the same time, the person delivering it makes an appropriate note on the delivery notification, which is returned to the sender along with the order.;

3) direct delivery of an order on the need to pay a fine to the owner (owner) of the vehicle personally or to one of the adult family members living together with him against receipt by an official.

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

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