Commentary to article 12. Inadmissibility of repeated bringing to administrative responsibility of the Code of the Republic of Kazakhstan On Administrative Offenses
No one can be repeatedly brought to administrative responsibility for the same offense.
Subparagraph 2) of paragraph 3 of Article 77 of the Constitution states that "no one may be subjected to repeated criminal or administrative liability for the same offense." The preposition "or" between the words "criminal" and "administrative" contains the meaning that an offender cannot be charged twice for an administrative offense for the same offense event.
Administrative liability measures are applied for the commission of an administrative offense (in some cases, other administrative and legal measures, for example, disciplinary). For example, under Article 32 of the Administrative Code, administrative liability, namely disciplinary liability, may be applied for committing administrative offenses.
For the first time, such a principle was provided for by the Code of the Republic of Kazakhstan on Administrative Offenses dated January 30, 2001 with the provision "No one may be subjected to administrative punishment twice for the same offense."
In 2007, the norm was adjusted. Thus, the words "subjected to administrative punishment" were replaced by the words "brought to administrative responsibility."
In the new Code, the norm has retained its amended version. However, the Law of the Republic of Kazakhstan dated December 28, 2017 "On Amendments and Additions to the Code of Administrative Offences of the Republic of Kazakhstan" replaced the word "twice" with the word "repeatedly", which, in fact, is not a fundamental difference.
The concept of administrative responsibility is a broader concept and absorbs the concept of "administrative penalty".
In many dictionaries and textbooks, the concept of administrative responsibility is disclosed in such a way that it cannot be distinguished from an administrative penalty. For example, A.B. Agapov believes that administrative responsibility is a special kind of legal responsibility. And further points out its features.
G.V. Vasilyeva and M.S. Studenikina give the concept of administrative responsibility as a type of legal responsibility and it is believed that, just like criminal, civil, disciplinary and material, it occurs only in the presence of an offense.
Part 2 of Article 25 of the Administrative Code states that administrative liability for offenses provided for in articles of the Special Part of the Administrative Code occurs if these offenses by their nature do not entail criminal liability in accordance with the legislation.
However, there remains the question of the relationship and equivalent of administrative responsibility and the imposition of an administrative penalty. Therefore, in our opinion, the most relevant concept is the following. Administrative responsibility is the application by State bodies, officials and government representatives of administrative measures established by the State to citizens, and in appropriate cases, to legal entities for committed administrative offenses. That is, the conclusion is justified that the fact of bringing to administrative responsibility cannot be equated with the fact of imposing an administrative penalty.
For example, Part 2 of Article 22 of the Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence" provides that the establishment of special requirements for the offender's behavior is a measure of administrative and legal impact and is applied along with the imposition of an administrative penalty, and instead of it when releasing a person who committed an administrative offense from administrative responsibility. That is, the application of a measure to ensure the proceedings in the case of an administrative offense may be applied instead of imposing an administrative penalty, but it will be a fact of bringing to administrative responsibility.
Similar clarifications are provided by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12. The basis for establishing special requirements for the offender's behavior is a number of administrative offenses listed in Article 54 of the Administrative Code, and can be applied regardless of the imposition of penalties and applies to minors who are brought to administrative responsibility repeatedly.
Sub-paragraphs 6), 10) and 12) of Part 1 of Article 741 of the Administrative Code are devoted to the prohibition of bringing to administrative responsibility twice for the same administrative offense.:
1) the existence of a decision of a judge, body (official) on the imposition of an administrative penalty or an unturned 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.;
2) the availability of a document confirming the payment of an administrative fine in accordance with the procedure established by art.;
3) in connection with the reconciliation of the parties in accordance with the procedure provided for in Article 64 of the Code.
Also, according to Part 2 of Article 741 of the Administrative Code, proceedings on an administrative offense are terminated when the act is committed under circumstances that, in accordance with Chapter 5 of the Code, exclude administrative liability.
Based on the resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12, it was clarified that the imposition of a new penalty after the cancellation or amendment of an illegal decision in the case of an administrative offense, for which the penalty has already been executed, is not a re-imposition of administrative responsibility.
Many questions arise about the repetition of administrative liability for ongoing offenses. According to the note to art. 62 of the Administrative Code, an offense is considered to be ongoing, which is characterized by the continuous implementation of a single composition of a certain act provided for in the article of the Special Part of this section, and has not been completed by the time of its discovery.
In the case of a continuing administrative offense, as well as in the case of an administrative offense in the field of budgetary relations that encroaches on the legally protected interests of society and the state, the person is not subject to administrative liability after two months from the date of the discovery of the administrative offense (Part 3 of art. 62 of the Administrative Code). The day of detection of a continuing administrative offense is considered to be the day when the official authorized to draw up a protocol on an administrative offense revealed the fact of its commission.
A decision on bringing to administrative responsibility terminates an offense formally and legally, because after violations are identified, usually no one has the right or can prohibit the continuation of an administrative offense. For example, to violate fire safety regulations or sanitary norms and regulations. If a person brought to administrative responsibility fails to fulfill the duties assigned to him by law or other regulatory legal act, or does so improperly, then he may be held accountable again. In this case, the nature of the obligation imposed on the violator and the time required for its fulfillment should be taken into account. Moreover, the moment of the beginning of the specified period is the entry into force of a previously issued decision on the same administrative offense.
If a sufficient period has passed to eliminate the violation and the violation has not been eliminated, then it is possible to bring to administrative responsibility under the same article. The first decision on the imposition of an administrative penalty should enter into force. This will not be bringing to justice twice for the same administrative offense. These will be two different administrative offenses.
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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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