Commentary on Article 666. Failure to Notify the Prosecutor or Untimely Notification of the Prosecutor of the Code of the Republic of Kazakhstan on Administrative Offenses

Failure to notify the prosecutor or untimely notification of the prosecutor about the performance by a state body of actions requiring such notification in accordance with legislative acts –

shall entail a fine in the amount of two hundred monthly calculation indices.

The activities of the prosecution authorities in the Republic of Kazakhstan are regulated by the Law of the Republic of Kazakhstan “On the Prosecutor’s Office,” which determines the status, competence, organization, and procedure for the activities of this body.

In accordance with Article 1 of this Law, the prosecutor’s office, on behalf of the state, exercises supreme supervision over compliance with the law within the limits and forms established by law throughout the territory of the Republic of Kazakhstan, represents the interests of the state in court, and conducts criminal prosecution on behalf of the state.

The general object of the administrative offense is the established procedure for ensuring the functioning of state power institutions.

The specific object of the administrative offense is the set of social and legal relations arising in connection with compliance with the procedure for notifying the prosecutor about actions performed by state bodies in accordance with legislative acts.

In the context of the formation of a rule-of-law state, legality in the activities of state bodies acquires particular importance, since ensuring the precise and strict execution of the law by officials enhances the authority of law and implements the mutual responsibility of the state and the individual.

Meanwhile, in the field of public administration, it has still not been possible to achieve the implementation of the principles of a rule-of-law state, and violations are most frequently committed by executive bodies in this area. As a result, elements of instability are introduced into state and public life, and the rights, freedoms, and legitimate interests of citizens are ignored and violated.

One of the main guarantees of ensuring legality in the state is the activity of the prosecutor’s office, which is the only state body whose exclusive purpose is to supervise the uniform implementation of laws throughout the entire country. The prosecutor’s office, as a single centralized system, is maximally adapted to performing this function.

In carrying out their activities, prosecutors have the right to obtain information from state bodies, organizations, and private enterprises. In certain cases, the actions of state bodies require mandatory notification of the prosecutor. The list of such cases is not expressly provided for in the Law of the Republic of Kazakhstan “On the Prosecutor’s Office.” However, regulatory legal acts governing the activities of state bodies contain provisions requiring these organizations to notify the prosecutor.

Such notifications are necessary to verify the legality of the actions of these state bodies and to enable responses through acts of prosecutorial supervision.

Let us provide examples from several codes. Part 4 of Article 63 of the Criminal Procedure Code (Inquiry Officer) provides that, in cases in which a preliminary investigation is being conducted, an inquiry officer is authorized, upon the instruction of the head of the inquiry body, to conduct urgent investigative actions, of which the inquiry officer is required to notify the prosecutor and the preliminary investigation body no later than twenty-four hours later. That is, this provision obliges the inquiry officer to notify the prosecutor of the performance of such actions and specifies the exact period within which this must be done.

In turn, Part 1 of Article 336 of the Civil Procedure Code of the Republic of Kazakhstan (Time Limit for Filing an Application for the Compulsory Hospitalization of a Citizen in a Psychiatric Inpatient Facility) states that an application for the compulsory hospitalization of a citizen in a psychiatric inpatient facility must be submitted to the court no later than seventy-two hours from the moment the person is admitted to the psychiatric inpatient facility.

The compulsory hospitalization of a citizen in a psychiatric inpatient facility before a court decision is issued is permitted exclusively for the purpose of preventing the consequences provided for in subparagraphs 2), 3), and 4) of paragraph 1 of Article 94 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System.”

In each case of compulsory hospitalization without a court decision, the administration of the psychiatric organization shall send written notification to the prosecutor within forty-eight hours from the moment the citizen is admitted to the psychiatric inpatient facility.

The provision of the Civil Procedure Code of the Republic of Kazakhstan also specifies the particular circumstances, time limit, and form of mandatory notification of the prosecutor.

Part 2 of Article 789 of the Code of the Republic of Kazakhstan on Administrative Offenses contains the following provision: “A person against whom proceedings have been initiated for unlawful entry into protected facilities, violation of the legislation of the Republic of Kazakhstan in the field of population migration, violation of the regime of the State Border of the Republic of Kazakhstan, border and customs regimes, or the regime at checkpoints across the State Border of the Republic of Kazakhstan and the customs border of the Eurasian Economic Union, as well as for an administrative offense committed on the continental shelf, in the territorial waters (sea), or in the internal waters of the Republic of Kazakhstan, may, where necessary, be detained for up to forty-eight hours for the purpose of establishing their identity and clarifying the circumstances of the offense, with written notification thereof being provided to the prosecutor within twenty-four hours from the moment of detention. Persons who have violated the procedure established in connection with the introduction of a curfew in an area where a state of emergency has been declared may be detained by employees of internal affairs bodies (the police) or military patrols until the end of the curfew, while those who do not have identification documents with them may be detained until their identities are established, for a period not exceeding forty-eight hours.”

Article 153 of the Entrepreneurial Code of the Republic of Kazakhstan also contains a provision on mandatory notification of the prosecutor: “When restrictive and prohibitive measures are taken in relation to the entity being inspected, the control and supervision body shall notify the prosecutor in the cases and according to the procedure determined by the laws of the Republic of Kazakhstan.”

As Taranov A.A. noted in this regard, the prosecutor verifies the legality of the actions performed and, if they are unlawful, annuls them and lifts the restrictions accompanying the actions of state bodies by issuing a resolution.

There are an extremely large number of such provisions in Kazakhstani legislation obliging state bodies to notify the prosecutor.

The objective element of the act is manifested in unlawful actions (inaction) that have resulted in a violation of the established procedure for notifying the prosecutor.

The objective element is characterized by two features:

• failure to notify the prosecutor;
• untimely notification of the prosecutor.

Failure to notify the prosecutor is expressed in the disregard of the requirements of regulatory legal acts that oblige state bodies to perform actions related to notifying the prosecutor. Each regulatory legal act requires the prosecutor to be notified in a specific form.

Untimely notification is expressed in notifying the prosecutor but violating the time limits established by regulatory legal acts.

The subjects of this administrative offense may be officials of state bodies whose duties include notifying the prosecutor in a timely manner.

The subjective element of the act is characterized by intent, since officials must be aware of the need to notify the prosecutor by virtue of their official duties.

Pursuant to Part 1 of Article 804 of the Code of the Republic of Kazakhstan on Administrative Offenses, proceedings concerning administrative offenses under this Article may be initiated by court bailiffs and other court employees authorized by the court chairperson or the presiding judge (paragraph 57).

Furthermore, in accordance with Article 805, the prosecutor may initiate proceedings under this Article by issuing a resolution to initiate a case concerning an administrative offense.

Cases concerning administrative offenses under this Article are considered by judges of specialized district administrative courts and administrative courts equated to them (Part 1 of Article 684 of the Code of the Republic of Kazakhstan on Administrative Offenses). A fine in the amount of 200 monthly calculation indices is prescribed for this administrative offense.

In 2018, one case was initiated in the Republic of Kazakhstan under Article 666 of the Code of Administrative Offenses, with the persons found guilty being held administratively liable.

Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offenses (Article-by-Article Commentary), by the Team of Authors:

• Sergey Nikolaevich Bachurin, Candidate of Legal Sciences, Associate Professor – Chapter 48 (co-authored with E.M. Khakimov);
• Mereke T rekovich Gabdualiev, Candidate of Legal Sciences – Chapters 11, 21, 22, 23;
• Ainur Maratovna Zhusipbekova, Master of Laws – Chapter 13 (co-authored with A.V. Karpekin); Chapters 33, 39 (co-authored with O.T. Seit zhanov);
• Alexander Vladimirovich Karpekin, Candidate of Legal Sciences, Associate Professor – Chapter 13 (co-authored with A.M. Zhusipbekova);
• Sergey Vasilyevich Korneychuk – Chapter 2; Chapter 6 (co-authored with O.T. Seitzhanov 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, 52;
• Ilya Petrovich Koryakin, Doctor of Legal Sciences, Professor – Chapter 49;
• Gulnara Bauyrzhanovna Kysykova, Candidate of Legal Sciences – Chapter 20;
• Botagoz Akimgereevna Omarova, Candidate of Legal Sciences – Chapter 17; Chapter 18 (co-authored with B.A. Parmankulova); Chapters 26, 31; Chapter 32 (co-authored with B.A. Parmankulova);
• Bayan Askhanbaevna Parmankulova – Chapter 18 (co-authored with B.A. Omarova); Chapters 19, 32 (co-authored with B.A. Omarova); Chapter 43 (co-authored with A.S. Tukiev);
• Roman Anatolyevich Podoprigora, Doctor of Legal Sciences, Professor – Chapter 24, Articles 489, 489-1, 490;
• Evgeny Viktorovich Porokhov, Doctor of Legal Sciences – Chapters 14, 15, 16, 29, Articles 471–475;
• Olzhas Temirzhanovich Seit zhanov, 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);
• Alexander Sergeevich Smyshlyaev, PhD – Chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); Chapter 44;
• Aslan Sultanovich Tukiev, Candidate of Legal Sciences, 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 D.A. Shipp); Chapter 45; Chapter 46 (co-authored with D.A. Shipp); Chapter 47;
• Vladimir Vladimirovich Filin, Candidate of Legal Sciences, Associate Professor – Chapter 10 (co-authored with O.T. Seitzhanov and B.E. Shaimerdenov);
• Erzhan Maratovich Khakimov, Master of Laws – Chapter 5 (co-authored with O.T. Seitzhanov); Chapter 6 (co-authored with O.T. Seitzhanov and 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;
• Bolat Erkenovich Shaimerdenov, Master of Laws – Chapter 10 (co-authored with O.T. Seitzhanov and V.V. Filin); Chapter 12; Articles 476–487, 507–509; Chapter 36 (co-authored with O.T. Seitzhanov); Chapters 37, 50, 51;
• Denis Alekseevich Shipp – Chapters 44-1, 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: newArea 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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