Commentary on Article 64. Exemption from Administrative Liability in Connection with Reconciliation of the Parties of the Code of the Republic of Kazakhstan on Administrative Offences
- Cases concerning administrative offences provided for in Articles 73, 73-1, 73-2, Article 79 (Part One), Articles 146, 185, 186, 220, and Article 229 (Part Two) of this Code shall be initiated only upon the application of the victim and shall be subject to termination upon reconciliation between the victim and the person who committed the administrative offence.
- Reconciliation shall be carried out on the basis of a written agreement signed by the victim and the person who committed the administrative offence.
The provision on exemption from administrative liability in connection with reconciliation of the parties appeared in Kazakhstan’s administrative legislation slightly more than ten years ago. This was an important step in the development of both administrative and administrative procedural legislation, as well as in the emergence of more humane and, at the same time, effective methods of resolving conflicts arising from administrative offences.
The reconciliation procedure between the parties in the sphere of family and domestic relations constitutes a legal basis for exempting an offender from administrative liability. For the first time, the Code of the Republic of Kazakhstan on Administrative Offences (in force until 1 January 2015) was supplemented by Article 71-1, “Exemption from Administrative Liability in Connection with Reconciliation of the Parties,” pursuant to Law of the Republic of Kazakhstan No. 123 dated 20 January 2006.
The practice of applying the aforementioned provision has demonstrated that reconciliation with the victim is a highly effective instrument of modern legal policy. However, like any new legal institution, it has certain shortcomings that become apparent in the course of law enforcement practice, particularly in cases involving domestic violence.
For example, unlawful acts in the sphere of family and domestic relations (Article 73 of the Code of Administrative Offences) constitute a widespread administrative offence in the domestic sphere. However, scientific studies of law enforcement practice show that, in such cases, the level of latency is very high and proceedings do not always conclude with judicial consideration due to reconciliation between the parties to the conflict.
For this reason, negative consequences arise:
- the offender feels that they will remain unpunished, since they may persuade the victim of domestic violence to submit a counter-application;
- the domestic abuser may intimidate the victim and force them to contact the internal affairs bodies with information that they have reconciled with the abuser;
- the work of the internal affairs body officer who investigated the domestic violence case becomes futile, while the domestic abuser is considered not to have been held legally liable;
- there are no grounds for placing the domestic abuser under preventive supervision by the internal affairs bodies: as a rule, following the reconciliation procedure, a protective order is not issued against the domestic abuser, and courts do not impose a prohibition on approaching the victim or special requirements regarding the offender’s conduct.
Part 1 of the article under commentary identifies the specific provisions of the Special Part of the Code of Administrative Offences under which cases concerning administrative offences are initiated only upon the application of the victim and are subject to termination upon reconciliation between the victim and the person who committed the administrative offence. Such legal provisions are established in nine articles of the Code of Administrative Offences, namely:
- Article 73 — Unlawful Acts in the Sphere of Family and Domestic Relations;
- Article 73-1 — Intentional Infliction of Minor Harm to Health;
- Article 73-2 — Battery;
- Article 79 (Part 1) — Violation of the Legislation of the Republic of Kazakhstan on Personal Data and Its Protection. The qualifying feature is the unlawful collection and/or processing of personal data, provided that these acts do not contain the elements of a criminally punishable act;
- Article 146 — Driving Across Crops or Plantations;
- Article 185 — Violation of the Obligation to Preserve Commercial and Banking Secrets, Credit Report Information, or Information from the Credit Bureau’s Credit History Database;
- Article 186 — Violation of the Obligation to Preserve the Confidentiality of Insurance or Pension Savings, or the Confidentiality of Microcredit Provision;
- Article 220 — Violation of the Legislation of the Republic of Kazakhstan on Payments and Payment Systems and of Requirements Related to Banking Services Provided to Clients;
- Article 229 (Part 2) — Violation by an Insurance Organisation of Requirements Related to the Payment of Insurance Benefits. The qualifying feature is the loss of documents submitted by the client for the purpose of making an insurance payment.
This list of provisions is exhaustive and is not subject to broad interpretation. However, in terms of the objectives of reconciliation, the list is unjustifiably narrow, since reconciliation should be possible under all substantive provisions of the Special Part of the Code of Administrative Offences if the offender, through active repentance, has compensated the victim for material damage, moral damage, or harm to health. Where the requisite grounds and conditions exist, the relevant cases are subject to termination.
Such specification is not without justification. There is a widespread opinion that reconciliation in administrative proceedings is inappropriate for a number of reasons, primarily because of the speed of such proceedings, their simplified procedure, and the perceived lack of expediency. Under these circumstances, this wording is perceived as the legislator’s attempt to protect to the greatest possible extent the rights and legitimate interests of persons involved in administrative proceedings.
In accordance with the requirements of Article 64 of the Code of Administrative Offences and the practice established in the courts of the Republic, the participants in the proceedings are required to provide a reconciliation agreement containing all the necessary information.
By a ruling of the district court of the North Kazakhstan Region dated 11 December 2017, citizen V.S. was exempted from administrative liability under Part 1 of Article 73 of the Code of Administrative Offences in connection with reconciliation with the victim through mediation.
At the court hearing, citizen V.S. and the victim, E.S., submitted an application to the court stating that they had entered into a written reconciliation agreement through judicial mediation and requesting the termination of the proceedings in the case. The court granted the application in full. The court explained the consequences of reconciliation to citizen E.S.
In the administrative case concerning citizen A.A., it was established that on 26 September 2017, at approximately 10:00 a.m., while at his home located at 196 Pushkin Street, Blagoy, he had an argument with his wife, citizen V.M. He used obscene language towards her and disturbed the peace of the family, thereby committing an offence provided for in Part 1 of Article 73 of the Code of Administrative Offences. In court, the victim declared that she had reconciled with him, which served as the basis for terminating the administrative proceedings.
In practical activities, the question arises as to whether repetition occurs when a person, whose previous administrative case was terminated in connection with reconciliation, commits a similar offence within the period specified in Article 61 of the Code of Administrative Offences.
The answer to this question depends on what is meant by being held administratively liable. This term is used in the Code of Administrative Offences, including in Articles 12, 62, and others; however, its meaning is not defined in the Code.
Moreover, some authors equate this term with another similar term used by the legislator in the Code of Administrative Offences, namely, “a person subjected to an administrative penalty,” as, for example, in Article 61 of the Code.
As is well known, final decisions may be adopted in an administrative case that are not associated with the imposition of an administrative penalty. Such decisions are lawful and reasoned as a result of the establishment of certain circumstances of the case, which is expressly provided for by the Code of Administrative Offences.
However, such persons often bear all the burdens and deprivations associated with the application of measures to secure proceedings in the case. Furthermore, in accordance with Chapter 48 of the Code of Administrative Offences, two categories of grounds for terminating cases are, in effect, distinguished: exonerating and non-exonerating grounds.
In accordance with Part 1 of Article 861 of the Code of Administrative Offences, a person in respect of whom a judge, body, or official authorised to consider cases of administrative offences has issued a ruling terminating the case on the grounds provided for in Subparagraphs 1)–7) and 11) of Part 1 of Article 741 of the Code of Administrative Offences shall be considered innocent and may not be subjected to any restrictions on the rights and freedoms guaranteed by the Constitution and laws of the Republic of Kazakhstan.
Accordingly, persons in respect of whom judges, bodies, or officials authorised to consider cases of administrative offences have issued rulings terminating cases on other grounds provided for in Article 741 of the Code of Administrative Offences are considered to be, at a minimum, involved in the commission of an administrative offence.
Reconciliation also belongs to this group of grounds.
Taking these circumstances into account, it appears correct to consider that the commission of a similar administrative offence within the periods established by Article 61 of the Code of Administrative Offences by persons whose cases were previously terminated on the grounds provided for in Subparagraphs 8), 9), 10), and 12) of Part 1 of Article 741 of the Code of Administrative Offences constitutes repetition.
Part 2 of the article under consideration provides for the mechanism for implementing the reconciliation procedure. First, a written agreement must be drawn up between the parties to the conflict or dispute. Second, the agreement must be signed by the victim and the person who committed the administrative offence.
The agreement shall be concluded in writing and signed by the parties or their representatives, provided that the representatives have powers to conclude the agreement specifically stipulated in a power of attorney. The agreement must contain the terms agreed upon by the parties, specifying the time limit and procedure for its performance. The agreement shall be drawn up and signed in a number of copies exceeding by one the number of persons who concluded the settlement agreement. One of these copies shall be attached to the case materials by the court or the authorised official who accepted the agreement.
If a case concerning an administrative offence has not been initiated and a reconciliation agreement has been concluded, the material shall be transferred to the relevant file for archival record-keeping. Pursuant to Paragraphs 25 and 26 of Order No. 713 of the Minister of Internal Affairs of the Republic of Kazakhstan dated 13 December 2013, administrative cases in which proceedings have been completed shall be bound into nomenclature files and stored in the archival premises (cabinets) of administrative practice units or in the archives of the internal affairs bodies. The sheets bound into the file shall be numbered, and a certification statement indicating the number of numbered sheets shall be made on the last sheet. Each nomenclature file containing administrative cases in which proceedings have been completed must have an inventory containing the following information: the surname and initials of the offender, the protocol number, the article of the Code, the type of administrative penalty, the amount of the fine imposed, and the page numbers.
For criminal offences, this procedure is regulated by Paragraph 14 of Order No. 89 of the Prosecutor General of the Republic of Kazakhstan dated 19 September 2014, “On Approval of the Rules for Receiving and Registering Applications and Reports Concerning Criminal Offences, as well as Maintaining the Unified Register of Pre-Trial Investigations.” The official draws up a report in an arbitrary form, and, with the consent of the head of the criminal prosecution body or their deputy, the case is left without consideration and stored in a nomenclature file (file bundle).
Where a case concerning an administrative offence has been initiated, a ruling terminating the case must be issued. The procedure for terminating cases concerning administrative offences is explained in Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018, “On the Court Ruling in a Case Concerning an Administrative Offence.” The descriptive and reasoning part of the ruling terminating the case shall set out:
- the circumstances of the offence specified in the administrative offence protocol;
- the circumstances that served as the grounds for terminating the case;
- the operative part of the ruling shall specify the court’s decision to terminate the proceedings in the case concerning the administrative offence, the grounds on which that decision was adopted, and the provision of the Special Part of the Code of Administrative Offences under which the case concerning the administrative offence was initiated.
Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offences (Article-by-Article), prepared by the team of authors:
Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor — Chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Legal Sciences — Chapters 11, 21, 22, and 23;
Zhusipbekova Ainur Maratovna, Master of Laws — Chapter 13 (co-authored with A.V. Karpekin); Chapters 33 and 39 (co-authored with O.T. Seitjanov);
Karpekin Alexander Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 13 (co-authored with A.M. Zhusipbekova);
Korneychuk Sergey Vasilievich — Chapter 2; Chapter 6 (co-authored with O.T. Seitjanov and E.M. Khakimov); Chapter 8; Chapter 25 (co-authored with E.M. Khakimov); Articles 457–470, 488, 488-1, and 491–506; Chapters 28, 30, and 52;
Koryakin Ilya Petrovich, Doctor of Legal Sciences, Professor — Chapter 49;
Kysykova Gulnara Bauyrzhanovna, Candidate of Legal Sciences — Chapter 20;
Omarova Botagoz Akimgereevna — Chapter 17; Chapter 18 (co-authored with B.A. Parmankulova); Chapters 26 and 31; Chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna — Chapter 18 (co-authored with B.A. Omarova); Chapters 19 and 32 (co-authored with B.A. Omarova); Chapter 43 (co-authored with A.S. Tukiev);
Podoprigora Roman Anatolyevich, Doctor of Legal Sciences, Professor — Chapter 24, Articles 489, 489-1, and 490;
Porokhov Evgeny Viktorovich, Doctor of Legal Sciences — Chapters 14, 15, 16, and 29; Articles 471–475;
Seitjanov Olzhas Temirzhanovich, Candidate of Legal Sciences, Associate Professor — Chapter 4; Chapter 5 (co-authored with E.M. Khakimov); Chapter 6 (co-authored with S.V. Korneychuk and E.M. Khakimov); Chapter 9; Chapter 10 (co-authored with B.E. Shaimerdenov and V.V. Filin); Chapter 33 (co-authored with A.M. Zhusipbekova); Chapter 36 (co-authored with B.E. Shaimerdenov); Chapter 39 (co-authored with A.M. Zhusipbekova);
Smyshlyaev Alexander Sergeevich, PhD — Chapters 38, 40, 42, and 43-1 (co-authored with A.S. Tukiev); Chapter 44;
Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor — Chapters 1, 3, and 35; Chapters 38, 40, and 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 D.A. Shipp); Chapter 45; Chapter 46 (co-authored with D.A. Shipp); Chapter 47;
Filin Vladimir Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 10 (co-authored with O.T. Seitjanov and B.E. Shaimerdenov);
Khakimov Erzhan Maratovich, Master of Laws — Chapter 5 (co-authored with O.T. Seitjanov); Chapter 6 (co-authored with O.T. Seitjanov and S.V. Korneychuk); Chapter 7; Chapter 25 (co-authored with S.V. Korneychuk); Chapters 34 and 41; Chapter 48 (co-authored with S.N. Bachurin); Chapter 53;
Shaimerdenov Bolat Erkenovich, Master of Laws — Chapter 10 (co-authored with O.T. Seitjanov and V.V. Filin); Chapter 12; Articles 476–487 and 507–509; Chapter 36 (co-authored with O.T. Seitjanov); Chapters 37, 50, and 51.
Shipp Denis Alekseevich — Chapters 44-1 and 46 (co-authored with A.S. Tukiev).
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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