Commentary to article 145. Violation of the legislation of the Republic of Kazakhstan in the field of protection and use of objects of historical and cultural heritage  The Code of the Republic of Kazakhstan on Administrative Offences  

     Violation of the legislation of the Republic of Kazakhstan in the field of protection and use of objects of historical and cultural heritage, committed in the form of:

     1) violations of the rules for the protection and maintenance of historical and cultural monuments;

     2) violations of the conditions of maintenance of the monument of history and culture, prescribed in the protection obligations;

     3) violations of the rules for the installation of new monumental art structures;

     4) illegal movement and modification of historical and cultural monuments;

     5) failure to carry out research work during the development of territories prior to the allocation of land plots to identify objects of historical, scientific, artistic and other cultural value;

     6) carrying out works that may endanger the existence of objects of historical and cultural heritage, –  

     entails a fine for individuals in the amount of ten, for officials, small businesses – in the amount of fifty, for medium–sized businesses – in the amount of one hundred, for large businesses - in the amount of two hundred and fifty monthly calculation indices, with the suspension of work.

     The public danger of an administrative offense under Article 145 of the Administrative Code is expressed in the fact that as a result of its commission, the object of historical and cultural heritage is irreparably lost.  

     The object of the offense is public relations in the field of property law. An additional object is relations in the field of preservation of historical and cultural heritage, which, in the event of its irretrievable loss, causes irreparable damage.

     Public relations in the field of historical and cultural heritage are regulated by the Law of the Republic of Kazakhstan dated July 2, 1992 "On the protection and use of objects of historical and cultural heritage" and other regulatory legal acts.  

     According to paragraph 11 of Article 6 of this Law, historical and cultural monuments are understood as individual buildings, buildings, structures and ensembles, historical and cultural landscapes and other places of interest created by man or being a joint creation of man and nature, related to the historical past of the people, the development of society and the state, included in the State List of Historical and Cultural Monuments..  

     Historical and cultural monuments are divided into the following types:

     - monuments of urban planning and architecture;  

     - archaeological sites;  

     - ensembles.  

     Objects of historical and cultural heritage acquire the status of historical and cultural monuments from the moment they are recognized as such in accordance with the procedure established by this Law.

     The recognition of objects of historical and cultural heritage as historical and cultural monuments is confirmed by their approval in the State List of Historical and Cultural Monuments of International, National and Local Significance, subject to mandatory official publication. Archaeological sites acquire the status of historical and cultural monuments from the moment they are identified.

     Historical and cultural monuments in the Republic of Kazakhstan are subject to mandatory protection and preservation, have a special legal regime for their use, changing ownership rights to them and depriving them of their status.  

     The deprivation of a historical and cultural monument of its status and exclusion from the State List of Historical and Cultural Monuments are allowed only in case of complete physical loss of the object and (or) loss of historical and cultural significance.

     Identified objects of historical and cultural heritage are included in the pre-registration list and, until a final decision is made on their status, are subject to protection on an equal basis with historical and cultural monuments in accordance with this Law.  

     Historical and cultural monuments located on the territory of the Republic of Kazakhstan and not belonging to other entities are the exclusive property of the Republic of Kazakhstan.

     Violation of the order of protection and use of objects of historical and cultural heritage entails administrative responsibility.  

     The objective side of the analyzed administrative offense is characterized by both actions and omissions, and is expressed as:  

     - violations of the rules for the protection and maintenance of historical and cultural monuments, approved by the Order of the Minister of Culture and Sports dated December 29, 2014 No. 157 "On Approval of the Rules for the Protection and Maintenance of Historical and Cultural Monuments";  

     - violations of the conditions of maintenance of the monument of history and culture prescribed in the protection obligations (expressed in the untimely carrying out of restoration work, violations of the rules of protection against damage and (or) destruction, acts of vandalism, falsification, hoax);

     - violations of the rules for the establishment of new buildings of monumental art, which include monuments, steles, busts, erected to perpetuate the memory of prominent personalities, significant historical events (expressed in the establishment of new buildings of monumental art without coordination with local executive authorities);

     - illegal relocation and modification of a historical and cultural monument (any relocation of a historical or cultural monument, except in cases of destruction of more than seventy percent of a historical and cultural monument or loss of historical and cultural value, or if its relocation entails an improvement in the conditions for its preservation, in coordination with a special commission of the authorized body based on the conclusion of historical and cultural expertise:);

     - failure to carry out research work during the development of territories before the allotment of land to identify objects of historical, scientific, artistic and other cultural value (violation of the rights to carry out work on the development of territories before the allotment of land for research, i.e. individuals and legal entities when establishing objects of historical, scientific, artistic and other cultural value the company is obliged to suspend its activities and inform the authorized body);  

     - carrying out works that may endanger the existence of objects of historical and cultural heritage (expressed in distortion, making unjustified changes, removal from the historical context).  

     This offense is considered completed from the moment of committing actions to violate the rules of protection, conditions of detention, illegal movement and modification, identification, as well as carrying out work that may endanger the existence of objects of historical and cultural heritage.  

     The subjects of the offense may be individuals who have reached the age of 16, as well as legal entities.  

     The subjective side of this offense is characterized by an intentional form of guilt, i.e. the guilty person is aware of the illegality of his actions, anticipates its harmful consequences and desires their occurrence.  

     In accordance with Part 12, paragraph 1, of Article 804 of the Administrative Code, protocols on administrative offenses under Article 145 of the Administrative Code may be drawn up by authorized officials of the authorized body in the field of culture.

     According to Part 1 of Article 684 of the Administrative Code, judges of specialized district and equivalent administrative courts have the right to consider cases of an administrative offense under Article 145 of the Administrative Code.

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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