Commentary on Article 664 of the Code of the Republic of Kazakhstan on Administrative Offences: Failure to Take Measures in Response to a Separate Ruling, Court Resolution, or Submission by a Prosecutor, Investigator or Inquiry Officer
Failure by an official to consider a separate ruling, court resolution, or submission by a prosecutor, investigator or inquiry officer, or failure to take measures to eliminate the violations of law indicated therein, as well as failure to respond in a timely manner to a separate ruling, resolution or submission –
shall entail a fine in the amount of eight monthly calculation indices.
The general object of the administrative offence is the established procedure for ensuring the functioning of state power institutions.
The specific object of the administrative offence comprises public-law relations arising from an official’s failure to fulfil the obligations to consider and take measures to eliminate violations indicated in a separate ruling, court resolution, or submission by a prosecutor, investigator or inquiry officer.
The Criminal Procedure Code provides that if, during the judicial consideration of a case, circumstances that contributed to the commission of a criminal offence, violations of citizens’ rights and freedoms, as well as other violations of the law committed during the pre-trial investigation, are identified, the court shall issue a separate resolution drawing the attention of the relevant organisations or persons to these circumstances and facts of violations of the law that require the adoption of necessary measures (Part 4 of Article 53). The court may also issue a separate resolution in other cases if it considers this necessary.
In turn, Article 270 of the Civil Procedure Code of the Republic of Kazakhstan stipulates that, upon identifying instances of violations of legality, the court is entitled to issue and send a separate ruling. If the violations have been committed by state bodies, officials or civil servants, the court shall issue and send a separate ruling to the relevant organisations, officials or other persons performing managerial functions, who are obliged to report on the measures taken within one month. Failure to report on the measures taken entails administrative liability for the persons to whom the separate ruling is addressed. The imposition of an administrative penalty does not release the relevant persons from the obligation to report on the measures taken in response to the court’s separate ruling.
As noted by G.N. Minasyan, separate rulings are one of the means of eliminating the causes of offences. They concern matters that fall outside the scope of the main dispute but are related to it, and are aimed at eliminating violations of the law identified by the court during proceedings, shortcomings in the work of organisations, immoral acts committed by individual citizens, and so forth.
In accordance with Part 3 of Article 1 of the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, judicial acts and the requirements of judges in the exercise of their powers are binding on all state bodies and their officials, as well as on individuals and legal entities. Failure to comply with judicial acts and judges’ requirements entails liability established by law.
As an example, pursuant to a resolution of the Specialised Administrative Court of Uralsk dated 30 September 2016, an official of the State Institution “Office of the Akim of Uralsk” was held administratively liable under Article 664 of the Code of Administrative Offences for failing to take measures in response to a separate ruling issued by the Specialised Interdistrict Economic Court of West Kazakhstan Region (hereinafter referred to as the SIEC of WKR).
It was established that on 7 June 2016, the SIEC of WKR issued a separate ruling for the purpose of informing the Akim of Uralsk of violations of legality identified during the consideration of a civil case, preventing such violations in the future, and taking measures against the persons responsible for the violations. Despite the fact that the official had been instructed to consider the court’s separate ruling, the official failed to consider it, did not take measures against the persons at fault, and did not provide information about the measures taken, thereby committing an administrative offence предусмотрed by Article 664 of the Code of Administrative Offences.
The court found the official guilty under Article 664 of the Code of Administrative Offences and imposed an administrative penalty in the form of a fine of eight monthly calculation indices.
It should also be noted that Article 200 of the Criminal Procedure Code (“Submission on the Elimination of Circumstances That Contributed to the Commission of a Criminal Offence and Other Violations of the Law”) provides that, having established during criminal proceedings circumstances that contributed to the commission of a criminal offence, the person conducting the pre-trial investigation is entitled to submit to the relevant state bodies, organisations or persons performing managerial functions within them a submission requesting the adoption of measures to eliminate these circumstances or other violations of the law.
Implementation of this provision is stipulated by Article 60 of the Criminal Procedure Code: “A resolution in a criminal case issued by an investigator within the scope of their powers, as well as submissions, assignments and instructions issued during the pre-trial investigation of a criminal case, shall be binding on all organisations, officials and citizens.”
At the same time, the prosecutor’s office, exercising supreme supervision over compliance with the law throughout the territory of the Republic of Kazakhstan, may issue prosecutorial supervision acts, one type of which is a submission.
In accordance with Article 27 of the Law of the Republic of Kazakhstan “On the Prosecutor’s Office”, a prosecutor, within the limits of their competence, shall submit representations:
- on the elimination of violations of legality;
- on the elimination of the causes and conditions contributing to the commission of criminal and other offences;
- on matters concerning the deprivation of immunity of persons who enjoy such a right under the Constitution of the Republic of Kazakhstan;
- in other cases established by law.
A submission shall be considered by an official or body within thirty calendar days. In cases where irreversible consequences may arise for human life and health or state security, it shall be considered within the period established by the prosecutor.
The obligation to consider a submission is stipulated in Part 2 of Article 23 of the above-mentioned Law: “Acts of prosecutorial supervision submitted on the grounds, in accordance with the procedure and within the limits established by law shall be subject to mandatory consideration by the bodies, organisations and officials to whom they are addressed. Failure to consider acts of prosecutorial supervision entails liability established by law.”
In turn, in her work, M.V. Byzova noted that, at the current stage of legislative regulation of a prosecutor’s powers to submit representations, a representation may generally be defined as an act of prosecutorial response submitted by an official of the prosecutor’s office specified by law to a subject authorised to eliminate violations of the law, their causes and the conditions contributing to them. It contains the relevant requirements of the prosecutor, has a suppressive (restorative) and preventive nature and, in certain cases, a punitive character, and is aimed at protecting human and civil rights and freedoms, as well as the legally protected interests of society and the state.
The objective elements of the administrative offence include the following qualifying features:
- failure to consider a separate ruling or resolution of the court;
- failure to consider a submission by an investigator or inquiry officer;
- failure to consider a submission by a prosecutor;
- failure to eliminate violations indicated in a separate ruling or resolution of the court;
- failure to eliminate violations indicated in a submission by an investigator or inquiry officer;
- failure to eliminate violations indicated in a submission by a prosecutor;
- failure to respond in a timely manner to a separate ruling, resolution or submission.
Thus, upon receiving a separate ruling or resolution of the court, a submission by a prosecutor, or a submission by an investigator or inquiry officer, an official must eliminate the violations indicated in these documents. As a general rule, a period of one month is allocated for eliminating the identified deficiencies; however, in specific cases, this period may be specified more precisely.
If a separate ruling, resolution or submission is not complied with, the person who issued it must collect supporting documents and forward the materials to the competent authority in accordance with its jurisdiction for the preparation of a report and the bringing of the persons responsible to administrative liability.
From the objective standpoint, the administrative offence under consideration is expressed in the inaction of an official, consisting of leaving without consideration a separate ruling (resolution) of the court or a submission by a prosecutor, investigator or inquiry officer; failing to take measures to eliminate the violations of the law indicated therein; as well as violating the deadlines for responding to these documents.
The subjects of liability under this Article are the officials to whom the documents specified in the operative provisions of the Article are addressed.
According to Article 30 of the Code of Administrative Offences, an official shall be held administratively liable where the administrative offence has been committed in connection with the failure to perform or the improper performance of their official duties. In the absence of this circumstance, an official guilty of committing an administrative offence shall be held liable on general grounds.
Officials are persons who, permanently, temporarily or under special authority, perform or performed, at the time of committing the administrative offence, the functions of representatives of public authority, or perform or performed organisational and administrative or administrative and economic functions in state institutions, quasi-public sector entities or local self-government bodies.
From the subjective standpoint, the administrative offence provided for by the Article under consideration is characterised by intent.
Pursuant to Part 1 of Article 804 of the Code of Administrative Offences, proceedings concerning administrative offences under this Article may be initiated by court bailiffs and other court employees authorised by the court chairperson or the presiding judge (paragraph 57).
Cases concerning administrative offences under this Article are considered by judges of specialised district administrative courts and equivalent administrative courts (Part 1 of Article 684 of the Code of Administrative Offences).
Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offences (Article-by-Article)
Authors’ collective:
Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor – Chapter 48 (co-authored with E.M. Khakimov);
Gabdualiyev Mereke Trecovich, 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, 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, Candidate of Legal Sciences – 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 January 2020
Date of adoption of the act: 01 January 2020
Place of adoption: 100050000000
Body that adopted the act: 103001000000
Territorial scope: 100000000000
Registration number of the regulatory legal act assigned by the rule-making body: 5
Status of the act: New
Areas of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000
Form of the act: Commentary / Code
Legal force: 1900
Language of the act: Russian
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