Commentary on Article 34. Administrative Liability of Foreigners, Foreign Legal Entities and Stateless Persons of the Code of the Republic of Kazakhstan on Administrative Offences
1. Foreigners, foreign legal entities, their branches and representative offices, and stateless persons who have committed administrative offences on the territory of the Republic of Kazakhstan, as well as on the continental shelf of the Republic of Kazakhstan, shall be subject to administrative liability on general grounds.
2. Structural subdivisions (branches and representative offices) of foreign and international non-profit non-governmental associations shall bear administrative liability as legal entities for violations of the legislation of the Republic of Kazakhstan on public associations. 3
. The issue of administrative liability for administrative offences committed on the territory of the Republic of Kazakhstan by diplomatic representatives of foreign states and other foreigners who enjoy immunity shall be resolved in accordance with the norms of international law.
The fundamental law of our state — the Constitution of the Republic of Kazakhstan — (Paragraph 4 of Article 12) establishes that foreigners and stateless persons enjoy the rights and freedoms in the Republic of Kazakhstan and bear the obligations established for citizens, unless otherwise provided for by the Constitution, laws and international treaties. At the same time, international treaties ratified by the Republic of Kazakhstan shall have priority over its laws. The procedure and conditions for the operation on the territory of the Republic of Kazakhstan of international treaties to which Kazakhstan is a party shall be determined by legislation (Article 4 of the Constitution of the Republic of Kazakhstan). The status of foreign citizens is regulated in detail by the Law of the Republic of Kazakhstan dated 19 June 1995, “On the Legal Status of Foreigners.” In accordance with this Law (Article 2): – persons who are not citizens of the Republic of Kazakhstan and have evidence of their affiliation with the citizenship of another state shall be recognised as foreigners in the Republic of Kazakhstan; – persons who are not citizens of the Republic of Kazakhstan and have no evidence of their affiliation with the citizenship of another state shall be recognised as stateless persons. The legal status and operating regime of foreign legal entities are regulated on general grounds, with restrictions imposed on such types of activities as religious, political and other types of activities subject to licensing. Part 1 of this Article establishes one of the forms of implementation of the principle of equality of all before the law, according to which foreigners, foreign legal entities, their branches and representative offices, and stateless persons who have committed administrative offences on the territory of the Republic of Kazakhstan, as well as on the continental shelf of the Republic of Kazakhstan, shall be subject to equal liability. The territory of the Republic of Kazakhstan is understood to mean the area located within the state border, as well as the locations of Kazakhstan’s diplomatic missions. In accordance with the Law of the Republic of Kazakhstan dated 16 January 2013, “On the State Border of the Republic of Kazakhstan” (Subparagraph 6 of Article 1), the continental shelf of the Republic of Kazakhstan is a section of the seabed and subsoil measured from the State Border (the outer limit of the territorial waters (sea)) to the limits established by international treaties ratified by the Republic of Kazakhstan. It should be noted that the Special Part of the Code of Administrative Offences contains a number of offences for which a foreign person is designated as a special subject. Such offences include Article 517, “Violation by a Foreigner or Stateless Person of the Legislation of the Republic of Kazakhstan in the Field of Population Migration,” Article 573, “Violation of the Rules for Applying the Permit System for Road Transport in the Republic of Kazakhstan in International Traffic,” and others. In addition to special elements of offences, there are also special administrative penalties applied only to foreigners and stateless persons — namely, expulsion from the Republic of Kazakhstan (Subparagraph 9 of Part 1 of Article 41 of the Code of Administrative Offences). As is known, it is impossible to expel a citizen of the Republic of Kazakhstan from the territory of the Republic of Kazakhstan. The practice of applying expulsion from the Republic of Kazakhstan to a foreign citizen or stateless person involves a number of problems. One of the main problems in enforcing this administrative penalty is the burden on the budget. This is particularly evident in offences related to illegal migration, where the perpetrators often lack the funds to leave the country independently. In cases where the said persons lack sufficient funds, or have no funds at all, to cover the expenses of expulsion, in accordance with Article 916 of the Code of Administrative Offences, the financing of the relevant measures is provided from budgetary funds. Transportation beyond the borders of the state is an expensive undertaking; moreover, it is necessary to ensure an escort until the expulsion has been fully executed. The implementation of a penalty in the form of a fine imposed on a foreign citizen also remains problematic. Some scholars consider it appropriate to provide for several options in legislation for enforcing an administrative fine in the area under consideration in cases where a foreign citizen or stateless person is insolvent, namely: – to impose the obligation to pay the administrative fine on the relevant authorities of the state of which the citizen subject to this administrative liability measure is a national, by developing and adopting intergovernmental agreements; – the possibility of imposing the obligation to pay the administrative fine on the inviting party (a natural person or legal entity), if such a party has been identified; – the possibility of applying an alternative measure of administrative liability (for example, performing socially useful work). Part 2 of the commented Article groups structural subdivisions (branches and representative offices) of foreign and international non-profit non-governmental associations into the category of “legal entities.” At the same time, the latter act as legal entities only in respect of administrative offences related to legislation on public associations. According to the Law of the Republic of Kazakhstan dated 31 May 1996, “On Public Associations,” public associations in the Republic of Kazakhstan are political parties, trade unions and other associations of citizens established on a voluntary basis to achieve common goals that do not contradict the legislation. These are Articles 489-1 and 490 of the Code of Administrative Offences. Part 3 of this provision is devoted to diplomatic immunity in administrative legislation. The Republic of Kazakhstan, being an active and full-fledged member of the international community, develops diplomatic relations with all countries of the world. One of the first steps on this path may be considered Kazakhstan’s accession to the 1946 Convention on the Privileges and Immunities of the United Nations. Diplomatic immunity, which has deep historical roots, constitutes an exception to the general rules. Despite the reference to international law contained in the provision, diplomatic immunity is also presented in the Code of Administrative Offences, as in criminal procedure legislation, in special provisions (Articles 876–879 of the Code of Administrative Offences) regulating a special procedure for proceedings involving persons who enjoy immunity. The following types of diplomatic immunity may be distinguished in administrative legislation: – immunity from liability — Article 876; – immunity from inspection, detention and compulsory appearance — Article 877; – immunity from giving testimony — Article 878; – immunity of premises and documents — Article 879. Further information on privileges and immunity can be found in the commentary on the Articles of Chapter 49 of the Code of Administrative Offences.
Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offences (Article-by-Article), by the Team of Authors:
Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor — Chapter 48 (co-authored with Khakimov E. M.); Gabdualiev Mereke Tреkovich, Candidate of Legal Sciences — Chapters 11, 21, 22, 23; Zhusipbekova Ainur Maratovna, Master of Laws — Chapter 13 (co-authored with Karpekin A. V.); Chapters 33, 39 (co-authored with Seitjanov O. T.); Karpekin Aleksandr Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 13 (co-authored with Zhusipbekova A. M.); Korneychuk Sergey Vasilievich — Chapter 2; Chapter 6 (co-authored with Seitjanov O. T. and Khakimov E. M.); Chapter 8; Chapter 25 (co-authored with Khakimov E. M.); Articles 457–470, 488, 488-1, 491–506; Chapters 28, 30, 52; Koryakin Ilya Petrovich, Doctor of Legal Sciences, Professor — Chapter 49; Kysikova Gulnara Bauyrzhanovna, Candidate of Legal Sciences — Chapter 20; Omarova Botagoz Akimgereevna — Chapter 17; Chapter 18 (co-authored with Parmankulova B. A.); Chapters 26, 31; Chapter 32 (co-authored with Parmankulova B. A.); Parmankulova Bayan Askhanbaevna — Chapter 18 (co-authored with Omarova B. A.); Chapter 19; Chapter 32 (co-authored with Omarova B. A.); Chapter 43 (co-authored with Tukiev A. S.); Podoprigora Roman Anatolievich, Doctor of Legal Sciences, Professor — Chapter 24, Articles 489, 489-1, 490; Porokhov Evgeny Viktorovich, Doctor of Legal Sciences — Chapters 14, 15, 16, 29, Articles 471–475; Seitjanov Olzhas Temirzhanovich, Candidate of Legal Sciences, Associate Professor — Chapter 4; Chapter 5 (co-authored with Khakimov E. M.); Chapter 6 (co-authored with Korneychuk S. V. and Khakimov E. M.); Chapter 9; Chapter 10 (co-authored with Shaimerdenov B. E. and Filin V. V.); 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 Aleksandr Sergeevich, PhD — Chapters 38, 40, 42, 43-1 (co-authored with Tukiev A. S.); Chapter 44; Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor — Chapters 1, 3, 35; Chapters 38, 40, 42 (co-authored with Smyshlyaev A. S.); Chapter 43 (co-authored with Parmankulova B. A.); Chapter 43-1 (co-authored with Smyshlyaev A. S.); Chapter 44-1 (co-authored with Shipp D. A.); Chapter 45; Chapter 46 (co-authored with Shipp D. A.); Chapter 47; Filin Vladimir Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 10 (co-authored with Seitjanov O. T. and Shaimerdenov B. E.); Khakimov Erzhan Maratovich, Master of Laws — Chapter 5 (co-authored with Seitjanov O. T.); Chapter 6 (co-authored with Seitjanov O. T. and Korneychuk S. V.); Chapter 7; Chapter 25 (co-authored with Korneychuk S. V.); Chapters 34, 41; Chapter 48 (co-authored with Bachurin S. N.); Chapter 53; Shaimerdenov Bolat Erkenovich, Master of Laws — Chapter 10 (co-authored with Seitjanov O. T. and Filin V. V.); Chapter 12; Articles 476–487, 507–509; Chapter 36 (co-authored with Seitjanov O. T.); Chapters 37, 50, 51. Shipp Denis Alekseevich — Chapters 44-1, 46 (co-authored with Tukiev A. S.).
Date of amendment of the act: 01.01.2020Date of adoption of the act: 01.01.2020Place of adoption: 100050000000Body that adopted the act: 103001000000Region of application: 100000000000Registration number of the regulatory legal act assigned by the rule-making body: 5Status of the act: newScope of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000Form of the act: COMMENTARY / CODELegal force: 1900Language of the act: Russian
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