Commentary to article 400. Violation of the legislation of the Republic of Kazakhstan in the field of plant quarantine The Code of the Republic of Kazakhstan on Administrative Offences
Chapter 22. ADMINISTRATIVE OFFENSES IN THE FIELD OF PLANT PROTECTION AND QUARANTINE, GRAIN MARKET AND GRAIN STORAGE, COTTON INDUSTRY, SEED PRODUCTION AND STATE VETERINARY AND SANITARY CONTROL AND SUPERVISION, LIVESTOCK BREEDING, ORGANIC PRODUCTION, AS WELL AS THE IMPLEMENTATION OF PRICE STABILIZATION MECHANISMS FOR SOCIALLY IMPORTANT FOOD PRODUCTS
The agro-industrial complex and agriculture are among the most important in the country. The state imposes special requirements on plant protection, the grain market and grain storage, the cotton industry, seed production and state veterinary and sanitary control and supervision, livestock breeding, organic production, as well as the implementation of price stabilization mechanisms for socially important food products.
The dispositions of the offences contained in Chapter 22 of the Administrative Code are of a blank nature and refer to other normative legal acts, including:
- The Law of the Republic of Kazakhstan dated February 11, 1999 No. 344 "On plant Quarantine";
- The Law of the Republic of Kazakhstan dated January 19, 2001 No. 143 "On grain";
- The Law of the Republic of Kazakhstan dated July 9, 1998 No. 278 "On breeding livestock";
- The Law of the Republic of Kazakhstan dated July 21, 2007 No. 298 "On the development of the cotton industry", etc.
However, the application of the articles contained in Chapter 22 of the Administrative Code is not limited to legislative acts only. The law enforcement officer also needs to study the subordinate regulatory legal acts, which regulate the rules and procedures in detail. For example, by Order No. 4-4/66 of the Minister of Agriculture of the Republic of Kazakhstan dated January 30, 2015, "Phytosanitary requirements for imported quarantined products" were approved, and by Order No. 4-4/282 of the Minister of Agriculture of the Republic of Kazakhstan dated March 30, 2015, "A list of quarantine facilities and alien species for which measures are being established and implemented." on plant quarantine and the list of especially dangerous harmful organisms", by Order of the Minister of Agriculture of the Republic of Kazakhstan dated April 23, 2015 No. 4-1/364 - Requirements for the grain quality examination procedure and the issuance of a grain quality passport", by Order of the Minister of Agriculture of the Republic of Kazakhstan dated May 23, 2016 No. 230 - Rules for the production and turnover of organic products, by Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 28, 2015 No. 4-6/955 - Rules for quantitative and qualitative accounting of cotton, etc.
It should also be borne in mind that in order to bring to justice under Article 408 "Violation of the rules for keeping and walking dogs and cats, rules for trapping and destroying stray dogs and cats" of the Administrative Code, a law enforcement officer should apply a regulatory legal act adopted by the maslikhat in whose territory this offense was committed.
The fact is that according to paragraphs 2-2 of Article 6 of the Law of the Republic of Kazakhstan dated January 23, 2001 No. 148 "On Local Government and Self-Government in the Republic of Kazakhstan", the maslikhats of regions, cities of republican significance, and the capital are responsible for approving the rules for keeping animals, the rules for keeping and walking dogs and cats, and the rules for trapping and destroying stray dogs. and cats, as well as the approval of other rules, for violation of which administrative responsibility is established. Consequently, each region, city of republican significance and the capital have approved their own rules for keeping animals, rules for keeping and walking dogs and cats, rules for trapping and destroying stray dogs and cats.
Often, the law enforcement officer needs to make appropriate calculations. For example, in order to bring a person to administrative responsibility under Article 405 "Non-compliance with the marginal trade allowance when implementing price stabilization mechanisms for socially significant food products" of the Administrative Code, it is necessary to calculate the thresholds of retail prices for socially significant food products according to the established formula.
Thus, according to paragraphs 3 and 4 of the "Rules for setting retail price thresholds for socially significant food products and the maximum allowable retail prices for them", approved by the Order of the Acting Minister of National Economy of the Republic of Kazakhstan dated March 30, 2015 No. 282, the threshold value of retail prices for socially significant food products is determined for each individual socially significant food products, on the territory of the city of regional and republican significance, the capital for each quarter. To calculate the threshold value of retail prices for socially significant food products, official statistical information is used, which is generated by state statistical authorities according to the Statistical Work Plan. The source of the information is published official data on the level and change of prices for socially important food products.
A distinctive feature of the administrative offences contained in Chapter 22 of the Administrative Code is that most of the articles are cumbersome and consist of many parts, or the acts characterizing the objective side are multiple in nature.
For example, the violation of phytosanitary requirements for imported quarantined products and phytosanitary measures provided for in Article 400 of the Administrative Code can be committed in the form of sixteen actions.
Article 401 "Violation of the legislation of the Republic of Kazakhstan on grain" of the Administrative Code consists of eleven parts, Article 404 "Violation of the legislation of the Republic of Kazakhstan on the development of the cotton industry" - of nine parts, Article 406 "Violation of the legislation of the Republic of Kazakhstan in the field of veterinary medicine" - of sixteen parts, etc.
Some offenses are under the jurisdiction of the relevant state body, others are under the jurisdiction of the courts. If judicial practice has been developed for some administrative offenses (for example, Articles 400, 401 of the Administrative Code) due to the fact that these cases are subordinate to the courts and are available on the website of the Supreme Court of the Republic of Kazakhstan, then in other cases subordinate to state bodies, the practice of bringing perpetrators to administrative responsibility has not been fully developed.
Article 400. Violation of the legislation of the Republic of Kazakhstan in the field of plant quarantine
1. Violation of phytosanitary requirements for imported quarantined products and phytosanitary measures, committed in the form of:
1) import into the territory of the Republic of Kazakhstan of quarantined products that do not meet the phytosanitary requirements for imported quarantined products;
2) importation into the territory of the Republic of Kazakhstan of a batch of quarantined products of high phytosanitary risk without a phytosanitary certificate from the national quarantine service of the exporting country;
3) importation into the territory of the Republic of Kazakhstan of a batch of quarantined products with a high phytosanitary risk without a re-export phytosanitary certificate from the national quarantine service of the re-exporting country;
4) transportation of imported quarantined products through the territory of the Republic of Kazakhstan in violation of the phytosanitary requirements of the Republic of Kazakhstan;
5) failure to provide quarantined products for inspection;
6) failure to carry out annual preventive disinfection of warehouses in which quarantined products are stored or processed;
7) the use of planting or seed material before receiving the results of a laboratory examination;
8) non-compliance with the storage conditions of imported planting or seed material until the results of the laboratory examination are obtained;
9) the use for seed purposes of cereals, legumes, oilseeds imported into the territory of the Republic of Kazakhstan for use for food, fodder and technical purposes;
10) failure to clean vehicles after transportation of imported quarantined products, as well as quarantined products from quarantine zones with mandatory waste disposal;
11) forwarding of quarantined products en route or at the destination without the permission of the authorized body;
12) failure to provide imported quarantined products for secondary quarantine inspection at their destination;
13) the use of seed or planting material clogged with quarantine weeds for sowing;
14) storage or cleaning of quarantined products harvested in the zone of distribution of quarantine facilities from quarantined products harvested in the quarantine-free zone;
15) failure to provide a systematic survey of crops, territories, warehouses, the activities of which are related to the production, procurement, processing, storage, transportation and sale of quarantined products;
16) carrying out inter-regional transportation of quarantined products without a quarantine certificate, –
entails a fine for individuals in the amount of twenty, for officials, small business entities or non–profit organizations – in the amount of thirty, for medium-sized businesses - in the amount of forty, for large businesses – in the amount of one hundred monthly calculation indices.
2. Violation of the legislation of the Republic of Kazakhstan in the field of plant quarantine during import, domestic transportation and sale of quarantined products, committed in the form of:
1) importation into the territory of the Republic of Kazakhstan and during domestic transportation of quarantined products, as well as vehicles infected with quarantine facilities and alien species;
2) violations of prohibitions or restrictions on the import of quarantined products into the Republic of Kazakhstan;
3) sale of quarantined products infected by quarantine facilities;
4) redirection of quarantined products exported from the quarantine zone of the Republic of Kazakhstan en route;
5) transportation of mites, nematodes and live insects imported for scientific research purposes simultaneously with cereals, legumes, fodder, oilseeds, industrial crops and products of their processing, fruits, vegetables, fruits and potatoes, planting or seed material, sections of fresh flowers and potted plants, wood, packaging and fastening materials;
6) violations of prohibitions or restrictions on the export of quarantine products infected with quarantine facilities from the quarantine phytosanitary zone, –
entails a fine for individuals in the amount of twenty, for officials, small businesses or non–profit organizations in the amount of thirty, for medium–sized businesses in the amount of forty, for large businesses in the amount of one hundred monthly calculation indices with confiscation of quarantined products if it is impossible to decontaminate and process them.
3. Untimely or improper accounting of the spread of quarantine facilities or untimely or improper organization of plant quarantine measures at facilities of state control and supervision in the field of plant quarantine –
entails a fine for officials in the amount of thirty monthly calculation indices.
4. The action (inaction) provided for in part three of this article, committed repeatedly within a year after the imposition of an administrative penalty, –
entails a fine for officials in the amount of sixty monthly calculation indices.
Part 1. The object of the commented offense is the established phytosanitary requirements for imported quarantined products and the implementation of phytosanitary measures.
Paragraphs 1 and 2 of Article 13 of the Law of the Republic of Kazakhstan dated February 11, 1999 No. 344 "On Quarantine of plants" stipulates that when concluding contracts for the supply of quarantined products or their transit, the supplier must obtain from the authorized body the necessary information on quarantine measures and provide conditions to prevent the import of quarantine facilities.
A concluded contract containing confidential information should not be disclosed without the written consent of the supplier. Import of quarantined products into the territory of the Republic of Kazakhstan is allowed only through phytosanitary control posts and automobile checkpoints across the State border of the Republic of Kazakhstan, which coincides with the customs border of the Eurasian Economic Union.
Customs documents for quarantined products are processed after the completion of state quarantine phytosanitary control and supervision. Customs documents for imported quarantined products are processed at the destination after secondary quarantine phytosanitary control and supervision.
Quarantine measures of other States are recognized if they ensure an appropriate level of phytosanitary protection applied in the Republic of Kazakhstan.
Import and transit quarantined products are transported across the territory of the Republic of Kazakhstan in covered or insulated, serviceable and sealed containers, sealed packages, wagons, vans, refrigerated trucks and other vehicles.
Import of quarantined products by foreign diplomatic missions, consular offices, representative offices of international organizations located in the territory of the Republic of Kazakhstan, as well as persons enjoying privileges and immunities, is carried out in accordance with the legislation of the Republic of Kazakhstan and (or) international treaties ratified by the Republic of Kazakhstan.
The objective side of the commented offense is expressed in one of the following actions, committed in the form of:
1) import into the territory of the Republic of Kazakhstan of quarantined products that do not meet the phytosanitary requirements for imported quarantined products;
2) importation into the territory of the Republic of Kazakhstan of a batch of quarantined products of high phytosanitary risk without a phytosanitary certificate from the national quarantine service of the exporting country;
3) importation into the territory of the Republic of Kazakhstan of a batch of quarantined products with a high phytosanitary risk without a re-export phytosanitary certificate from the national quarantine service of the re-exporting country;
4) transportation of imported quarantined products through the territory of the Republic of Kazakhstan in violation of the phytosanitary requirements of the Republic of Kazakhstan;
5) failure to provide quarantined products for inspection;
6) failure to carry out annual preventive disinfection of warehouses in which quarantined products are stored or processed;
7) the use of planting or seed material before receiving the results of a laboratory examination;
8) non-compliance with the storage conditions of imported planting or seed material until the results of the laboratory examination are obtained;
9) the use for seed purposes of cereals, legumes, oilseeds imported into the territory of the Republic of Kazakhstan for use for food, fodder and technical purposes;
10) failure to clean vehicles after transportation of imported quarantined products, as well as quarantined products from quarantine zones with mandatory waste disposal;
11) forwarding of quarantined products en route or at the destination without the permission of the authorized body;
12) failure to provide imported quarantined products for secondary quarantine inspection at their destination;
13) the use of seed or planting material clogged with quarantine weeds for sowing;
14) storage or cleaning of quarantined products harvested in the zone of distribution of quarantine facilities from quarantined products harvested in the quarantine-free zone;
15) failure to provide a systematic survey of crops, territories, warehouses, the activities of which are related to the production, procurement, processing, storage, transportation and sale of quarantined products;
16) carrying out inter-regional transportation of quarantined products without a quarantine certificate.
The Order of the Minister of Agriculture of the Republic of Kazakhstan dated January 30, 2015 No. 4-4/66 approved the "Phytosanitary requirements for imported quarantined products" (hereinafter – "Phytosanitary requirements for imported quarantined products"), which define the requirements for imported quarantined products (cereals, legumes, oilseeds, fodder, industrial crops and products of their processing, planting or seed material, fruits, vegetables, fruits, potatoes for food and (or) technical purposes, sections of fresh flowers, potted plants plants, mites, nematodes, live insects for scientific research purposes, wood, packaging and fastening materials), including its packaging, disinfection and transportation, in order to ensure plant quarantine.
For example, according to paragraph 14 of the "Phytosanitary requirements for imported quarantined products", planting or seed material must have:
1) phytosanitary certificate of the national quarantine services of exporting countries;
2) labeling with information about the product name, country of origin, exporter and (or) re-exporter, place and (or) site of production;
3) the original packaging until the completion of the procedure of state control and supervision in the field of plant quarantine.
In accordance with Article 26 of the Phytosanitary Requirements for imported Quarantined products, fruits, vegetables, fruits and potatoes must have:
1) labeling with information about the product name, country of origin, exporter and (or) re-exporter, place and (or) site of production;
2) the original packaging until the completion of the procedure of state control and supervision in the field of plant quarantine.
Paragraph 31 of the "Phytosanitary requirements for imported quarantined products" states that sections of fresh flowers and potted plants must have:
1) labeling with information about the product name, country of origin, exporter and (or) re-exporter, place and (or) site of production;
2) the original packaging until the completion of the procedure of state control and supervision in the field of plant quarantine.
Paragraph 37 of the "Phytosanitary requirements for imported quarantined products" stipulates that wood, packaging and fasteners imported into the territory of the Republic of Kazakhstan, including parts of repaired wood, packaging and fasteners, must be:
1) decontaminated;
2) marked;
3) they are rooted.
The law enforcement officer should keep in mind that the Decision of the Council of the Eurasian Economic Commission dated July 16, 2012 No. 54 approved the "Common Commodity Nomenclature for Foreign Economic Activity of the Eurasian Economic Union and the Common Customs Tariff of the Eurasian Economic Union."
By Order of the Minister of Agriculture of the Republic of Kazakhstan dated March 30, 2015 No. 4-4/282, the "List of quarantine facilities and alien species for which plant quarantine measures are being established and implemented, and the list of especially dangerous harmful organisms" was approved. For example, among the quarantine objects and alien species in relation to which plant quarantine measures are being established and implemented are: Oriental black-headed leaf beetle, Bronze birch golden beetle, Chrysanthemum leaf miner, Chinese barbel, Asian barbel, African melon fly, Wheat bug, Grains of the genus Callosobruchus, Broad-lobed barn weevil, Fig wax pseudococcus, American Spruce leafhopper, Western Spruce Leafhopper, Green Garden Scooper, Fruit weevil. Among the diseases of grain crops, rust and septoria are indicated.
Due to the fact that these organisms may be contained in a vehicle, the legislator has established responsibility for not cleaning vehicles after transporting imported quarantined products, as well as quarantined products from quarantine zones with mandatory waste disposal.
Let's consider an example from the judicial practice of the Specialized Interdistrict Administrative Court of Nur-Sultan, posted on the website of the Judicial Acts Bank. So, on March 14, 2019, at about 5:30 p.m., petunia seedlings in the amount of 1 m-11 kg-559 pieces were inspected for quarantine products, which were delivered to the address of individual entrepreneur Vasilina Sergeevna Chikrizova (hereinafter referred to as IP Chikrizova) from the Russian Federation by flight without a phytosanitary certificate of the exporting country.
In this regard, the actions of IP "Chikrizov" contain signs of an administrative offense under art. 400 (1-2) of the Administrative Code. IP "Chikrizova" pleaded not guilty at the hearing and explained that she had been engaged in crop production for more than 10 years, found an intermediary seller from Russia IP Zotov O.V. via the Internet, who assured her that all documents were in order, certificates were available, and she was importing plants for all CIS countries.
Therefore, she agreed with her and paid for the order via a bank card, but she did not know that she needed a certificate from the exporting country. He believes that it is the responsibility of the seller, IP Zotova O.V., to send a phytosanitary certificate. In addition, she ordered seedlings for the beautification of a private backyard, not for breeding and sale. She asked me not to hold her accountable. The defender of IP Chikrizov, A.A. Chikrizov, supported his wife's arguments and explained that the seedlings were bought by an individual for personal needs.
Moreover, they could not have known that IP Zotova O.V., whose duties it was, would not provide this certificate, and the carrier would transport it without the appropriate documents. He also points out that V.S. Chikrizova placed the order as an individual, whereas the protocol was drawn up for the sole proprietor. He asked to terminate the proceedings on the case due to the absence of corpus delicti in the actions of V.S. Chikrizova.
Representatives of the authorized body Aliev R.S. and Kodebayeva A. asked to hold IP "Chikrizova" accountable, since she, as an individual entrepreneur, ordered petunia seedlings weighing 11 kg without a phytosanitary certificate from Russia, from where the order arrived in Kazakhstan.
After ordering the seedlings and paying for them, when moving across the customs border, she becomes the owner of the product, who has the right to make any transactions and dispose of the goods. Having examined the case materials, having heard the participants in the process, the court finds proven the guilt of IP "Chikrizov" in committing an offense. Disposition of parts 1-2) art. The Code of Administrative Offenses provides for administrative liability for violation of phytosanitary requirements for imported quarantined products and phytosanitary measures, committed in the form of importation into the territory of the Republic of Kazakhstan of a batch of quarantined products of high phytosanitary risk without a phytosanitary certificate from the national quarantine service of the exporting country.
In accordance with paragraphs 9, 10 of the "Uniform quarantine phytosanitary requirements for quarantined products and quarantined facilities at the customs border and on the Customs territory of the Eurasian Economic Union", approved by the Decision of the Council of the Eurasian Economic Commission dated November 30, 2016. No. 157, importation into the customs territory of the Union of quarantined products of high phytosanitary risk with a total weight of no more than 5 kilograms, except for the cases provided for in paragraph 10 of these Requirements, as well as flowers in the amount of no more than 3 bouquets transported across the customs border of the Union in hand luggage, accompanied and unaccompanied baggage of passengers of ships, airplanes, passenger wagons, vehicles, crew members of ships, airplanes, train crews and drivers of vehicles are allowed without accompanying a phytosanitary certificate.
Imported into the customs territory of the Union and transported through the customs territory of the Union, including in mail, hand luggage, accompanied and unaccompanied baggage of passengers of ships, airplanes, passenger wagons, motor vehicles, crew members of ships, airplanes and in dining wagons, seed and planting material (including seed and food potatoes and material for breeding and research purposes) must be accompanied by
a phytosanitary certificate issued by the authorized plant quarantine authority of the exporting and/or re-exporting country. It can be seen from the case file that the planting material "petunia seedlings" in the amount of 1 m-11 kg-559 pieces arrived at IP Chikrizova from the Russian Federation by flight without a phytosanitary certificate from the national quarantine service of the exporting country. These quarantine products had a phytosanitary certificate from the country of origin, which is confirmed by the act of quarantine phytosanitary control (supervision) issued by the Federal Rosselkhoznadzor Service of the Russian Federation.
However, IP Zotova O.V. did not receive a phytosanitary certificate from the National Quarantine service of the Russian Federation when being shipped to Kazakhstan. At the same time, IP "Chikriza", when ordering more than 5 kg, was obliged to make sure that the seller had all the relevant documents in accordance with the legislation of the Republic of Kazakhstan. The arguments of IP "Chikrizova" that the provision of a state phytosanitary certificate of the national quarantine service of the Russian Federation is the responsibility of IP Zotova O.V. and, as a buyer, she should not be responsible for the actions of the seller, cannot be taken into account.
Since, according to the provisions of customs legislation, the product owner is the owner of quarantined products or another person authorized to carry out transactions and (or) other actions on behalf of the owner of quarantined products in connection with movement across the customs border of the Eurasian Economic Union. IP "Chikriza", after ordering and paying for the planting material, is the owner of the product, the person authorized to carry out transactions and further use of the purchased products. The guilt of IP "Chikrizova" is confirmed by her testimony given at the initiation of administrative proceedings, the act of returning quarantined products, the prescription, explanatory notes of the participants in the production and other case materials. The actions of IP "Chikrizov" are correctly qualified under part 1-2) of Article 400 of the Code of the Republic of Kazakhstan on Administrative Offenses. V.S. Chikrizova's arguments that the seedlings were purchased for personal use by her as an individual are untenable.
So, V.S. Chikrizova is registered as an individual entrepreneur and the main activity is the retail sale of flowers in specialized stores, that is, she is engaged in entrepreneurial activity specifically in the field of crop production. Moreover, according to the explanations of inspector A. Kodebaeva, the order arrived in the name of IP "Chikrizova" and at the time of registration of the documentation, V.S. Chikrizova confirmed that she was an individual entrepreneur.
According to Part 2 of Articles 829-11 of the Administrative Code, when circumstances mitigating liability are established, the judge has the right to reduce the amount of the administrative fine imposed on the person involved, against whom an administrative offense case has been initiated, but not more than thirty percent of the total fine. In this connection, on the basis of art. 56 of the Administrative Code, the court recognizes the commission of an administrative offense by IP "Chikrizov" for the first time, the property status as mitigating circumstances, and considers it possible to reduce the amount of the administrative fine by thirty percent of the total fine (75,750- 30% = 53,025 tenge) with the suspension of the license.
By a resolution dated May 03, 2019, the Specialized interdistrict Administrative Court brought individual entrepreneur Vasilina Sergeevna Chikrizova IP "Chikrizova" to administrative responsibility under Parts 1-2) of Article 400 of the Administrative Code in the form of a fine in the amount of 30 (thirty) monthly calculation indices and imposed a fine in the total amount of 53,025 (fifty-three thousand twenty-five) tenge with recovery to the state budget.
The subjective side of the offense is characterized by the fact that the act can be committed both in the form of intent and negligence.
The subject of the offense may be individuals, officials, small business entities or non-profit organizations, medium-sized businesses, and large businesses.
Part 2. The object of the commented part of Article 400 of the Administrative Code is the socio-legal relations arising from compliance with legislation in the field of plant quarantine during import, domestic transportation and sale of quarantined products.
According to paragraphs 2-1 of Article 13 of the Law of the Republic of Kazakhstan "On Plant Quarantine", importation into the territory of the Republic of Kazakhstan is prohibited.:
1) quarantined products without phytosanitary certificates of the national quarantine services of exporting countries;
2) quarantined products infected with quarantine objects and alien species;
3) soil, live rooted plants with soil;
4) plant pathogens - cultures of live fungi, bacteria, viruses, as well as insects, mites, nematodes that damage plants, seeds of quarantine weeds, with the exception of samples imported in coordination with the authorized body for scientific research purposes.
The objective side of the offense is expressed in the actions of importation, domestic transportation and sale of quarantined products, committed in the form of:
1) importation into the territory of the Republic of Kazakhstan and during domestic transportation of quarantined products, as well as vehicles infected with quarantine facilities and alien species;
2) violations of prohibitions or restrictions on the import of quarantined products into the Republic of Kazakhstan;
3) sale of quarantined products infected by quarantine facilities;
4) redirection of quarantined products exported from the quarantine zone of the Republic of Kazakhstan en route;
5) transportation of mites, nematodes and live insects imported for scientific research purposes simultaneously with cereals, legumes, fodder, oilseeds, industrial crops and products of their processing, fruits, vegetables, fruits and potatoes, planting or seed material, sections of fresh flowers and potted plants, wood, packaging and fastening materials;
6) violations of prohibitions or restrictions on the export of quarantine products infected with quarantine facilities from the quarantine phytosanitary zone.
The acts that make up the objective side of the offense being commented on are quite diverse, and the disposition is blunt in nature, since it refers to various regulatory legal acts.
Thus, when qualifying the actions of persons under the second part of Article 400 of the Administrative Code, it should be borne in mind that the order of the Minister of Agriculture of the Republic of Kazakhstan dated March 30, 2015 No. 4-4/282 approved the "List of quarantine facilities and alien species in relation to which plant quarantine measures are established and implemented, and the list of especially dangerous harmful organisms", paragraph 6 of which lists the following plants: Euphorbia dentata, Sunflower Californian, Sunflower ciliated, Ipomoea ivy, Ipomoea piteous, Elderberry axillary, Nightshade Karolinska, Nightshade linear-leaved, Strigoi, Ambrosia tricolor, Cenchrus longhorn, prickly nightshade, Tricolor nightshade. Consequently, the importation into the territory of Kazakhstan of products infected with these organisms can be qualified under the second part of Article 400 of the Administrative Code.
According to paragraphs 5 and 6 of Article 13 of the Law of the Republic of Kazakhstan "On Plant Quarantine", inspection and disinfection of quarantined products and vehicles, laboratory examination, and issuance of quarantine documents are carried out at the expense of their owners in accordance with and in accordance with the procedure established by the legislation of the Republic of Kazakhstan in the field of plant quarantine. Quarantined products imported into the territory of the Republic of Kazakhstan, the transport on which quarantined products are transported, are subject to state supervision in the field of plant quarantine, and, if necessary, quarantine inspection at phytosanitary control posts, as well as quarantine inspection at the destination of quarantined products with the registration of relevant acts.
The State Plant Quarantine Inspector explains to the owners of quarantined products the legislation of the Republic of Kazakhstan in the field of plant quarantine, establishes the availability of a phytosanitary certificate from the national quarantine service of the exporting country, conducts an external inspection of transport, quarantined products, takes samples from quarantined products, and examines them on site in order to identify pests, plant diseases and weeds. If necessary, samples and objects are transferred to an authorized organization for confirmation of the type of objects belonging to quarantine species.
If the carrier refuses to present the quarantined products for state quarantine phytosanitary control and supervision, they must be returned to the exporting country at the expense of their owner, which the state plant quarantine inspector informs the territorial subdivision of the authorized body, border authorities and state revenue authorities of the Republic of Kazakhstan.
Quarantined products in which quarantine objects are found are subject to return, disinfection, cleaning of quarantine weeds or technical processing. The costs associated with disinfection, cleaning, or processing of quarantined products are borne by their owners. Seed and planting materials infected with quarantine facilities that are of scientific or other value are transferred to an authorized organization for research when their owners apply. When the contamination of quarantine facilities is eliminated, the seed and planting materials are returned to their owners. The seizure of quarantined products (including mail, hand luggage and luggage) is carried out by the state plant quarantine inspector, and an act of seizure is drawn up.
After passing the quarantine inspection of quarantined products and carrying out the necessary plant quarantine measures, the state plant quarantine inspector affixes an appropriate standard stamp on the accompanying goods transport documents on passing the state quarantine phytosanitary control and supervision and issues an act of quarantine phytosanitary control and supervision to its owner. Cargo operations (transshipment to other vehicles) with quarantined products at phytosanitary control posts are carried out by its owner with the permission of the state plant quarantine inspector after state quarantine phytosanitary control and supervision and mandatory quarantine inspection.
Imported quarantined products, as well as vehicles that have passed quarantine inspection at phytosanitary control posts, are subject to quarantine inspection at the final destination of the quarantined products. Inspection of quarantined products and vehicles, sampling for analysis and examination at the destination of quarantined products are carried out by state plant quarantine inspectors of the territorial subdivision of the authorized body, followed by an examination to establish the species composition of pests, plant diseases and weeds, based on the results of which an inspection report is drawn up with a record of the conditions of use of these products.
Vehicles and quarantined products infected with quarantine facilities, products that are subject to disinfection, as well as vehicles and quarantined products that are potentially dangerous in quarantine, as prescribed by the Chief State Plant Quarantine Inspector of the Republic of Kazakhstan. Disinfection of quarantined products, prescribed by the state plant quarantine inspectors based on the results of the quarantine inspection, is carried out by the owners of quarantined products on a contractual basis with fumigation units.
When quarantine objects are detected in quarantined products at phytosanitary control posts, disinfection work is carried out at checkpoints across the State Border of the Republic of Kazakhstan, which coincides with the customs border of the Eurasian Economic Union, in fumigation chambers, stacks, holds of ships and barges, wagons, containers and other types of transport. All types of vehicles after transportation of imported quarantined products, as well as products from quarantine zones of the Republic of Kazakhstan, are subject to mandatory cleaning with waste disposal, and, if necessary, fumigation in places designated by the state plant quarantine inspector.
In accordance with paragraph 9 of the "Rules for the protection of the territory of the Republic of Kazakhstan from quarantine facilities and alien species", approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated June 29, 2015 No. 15-08/590, imported quarantined products are transported across the territory of the Republic of Kazakhstan in covered or insulated, serviceable and sealed containers, sealed packages, wagons, vans, refrigerated trucks and other vehicles.
The owner of the quarantined products notifies the territorial subdivision of the region (city of republican significance, capital) of the department of the authorized body of the arrival of the quarantined products in any available way and presents the quarantined products for quarantine phytosanitary control and supervision at the destination, delivery no later than one business day following the day of arrival.
According to paragraph 10 of the "Rules for the protection of the territory of the Republic of Kazakhstan from quarantine objects and alien species", quarantined products carrying a latent form of infection with quarantine objects and alien species are imported subject to mandatory inspection in introduction and quarantine nurseries.:
samples of seed and planting material, including for scientific and breeding purposes and variety testing;
samples of seed and planting materials are exchanged between scientific research institutions and botanical gardens.
Violation of the specified restrictions on mandatory inspection in the introduction and quarantine nurseries of these products may also be qualified under the second part of Article 400 of the Administrative Code.
Let's consider an example from the judicial practice of the Specialized Interdistrict Administrative Court of Karaganda, published on the website of the Judicial Acts Bank. Thus, according to the notification of STORK Green LLP on the arrival of quarantined products dated February 20, 2019, it was established that quarantined products were delivered from the Slovak Republic – flower slices of various types in the amount of 65,748 pieces and mustard flowers in the amount of 3,730 pieces. Transportation was carried out by air with accompanying documents (EU phytosanitary certificate/SK/009337/U dated February 18, 2019 and Air Waybill No. 580-19004296 dated February 19, 2019). During quarantine phytosanitary control (supervision) at the place of arrival at Sary-Arka airport, a quarantine object was found in 200 pieces of Lisianthus flower slices in 1 cardboard box of Israeli origin: Western flower thrips (live imagos), which is confirmed by the conclusion quarantine phytosanitary examination No. 7 dated February 25, 2019. The representative of the partnership I. At the hearing, she did not dispute the circumstances set out in the protocol, but agreed with the imputed administrative offense.
The State plant Quarantine inspector S. explained at the court hearing that the seized products must be destroyed, disinfection and processing are impossible. Having examined the case materials, assessed the evidence presented in its entirety in terms of relevance, reliability and admissibility, and listened to the explanations of the persons involved in the case, the court comes to the following conclusions.
The actions of a legal entity are correctly qualified under subclause 1) of Part 2 of Article 400 of the Administrative Code, that is, a violation of the legislation of the Republic of Kazakhstan in the field of plant quarantine when importing quarantined products, committed in the form of: importation into the territory of the Republic of Kazakhstan of quarantined products infected with quarantine objects and alien species, in connection with which the partnership is subject to administrative responsibility for this offense.
Thus, in accordance with paragraphs 2), paragraphs 2-1 of Article 13 of the Law "On Plant Quarantine", it is prohibited to import into the territory of the Republic of Kazakhstan: quarantined products infected with quarantine objects and alien species.
In accordance with Part 1 of Article 25 of the Administrative Code, an administrative offense is an unlawful act or omission of a legal entity for which this Code provides for administrative liability.
In accordance with Part 2 of art. 40, Part 2 of art. 55 of the Administrative Code, an administrative penalty is applied in order to educate a person who has committed an offense in the spirit of compliance with the requirements of the law and respect for the rule of law, as well as to prevent the commission of new offenses by both the offender and others. The administrative penalty must be fair and appropriate to the nature of the offense and the circumstances of its commission.
The sanction of Part 2 of Article 400 of the Administrative Code provides for an additional type of penalty in the form of confiscation of quarantined products if it is impossible to decontaminate and process them. It follows from the act of withdrawal of quarantined products dated February 26, 2019, that the products are infected with Western flower thrips and must be destroyed by incineration. The court, taking into account the nature of the administrative offense committed, the circumstances mitigating responsibility – consent to the imputed administrative offense, the absence of negative consequences, the absence of: as an alternative sanction, circumstances aggravating responsibility, considers it necessary to impose a penalty in the form of an administrative fine for this type of entity in the amount of 30 MCI, with confiscation of quarantined products infected with the quarantine facility. Due to circumstances mitigating liability, in accordance with the requirements of Part 2 of art. 829-11 of the Administrative Code, the court considers it possible to reduce the amount of the administrative fine by 30%. The amount of the fine of 30 MCI is 75,750 tenge, with a decrease of 30% – 53,025 tenge.
By a resolution dated March 26, 2019, the Specialized Interdistrict Administrative Court of Karaganda brought STORK GREEN LLP to administrative responsibility under subparagraph 1 of part 2 of Article 400 of the Administrative Code, and imposed an administrative penalty in the form of a fine in the amount of 53,025 (fifty-three thousand twenty-five) tenge with confiscation of quarantined products infected with the quarantine facility.
Another example is from the practice of the Specialized Interdistrict Administrative Court of Almaty. So, on 18.02.2019, the chief specialist of the Department of the State Inspectorate for Quarantine and Plant Protection and Phytosanitary control posts, A., in accordance with paragraph 24 paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan "On Plant Quarantine" dated 02/11/2019 No. 344, paragraph 2 of paragraph 3 of Article 140 of the Business Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V SAM dated February 15, 2019, during quarantine inspection at the final destination for quarantine products, it was revealed that Agrofirma LLP Almaty Seeds imported 2000 kg of alfalfa seeds infected with quarantine weed to Almaty. – gorchak rozov from South Kazakhstan region /Sairamsky district, Aksukentsky rural district, Aksu village, Imanalieva str. 7/7/ in violation of paragraphs 2, paragraphs 2-1 of art. 13 of the Law of the Republic of Kazakhstan “On Plant Quarantine", which is an administrative offense provided for in paragraph 1 of part 2 of art. 400 of the Code of the Republic of Kazakhstan "On Administrative Offenses". The infected batch of quarantine products in the amount of 2000 kg was sealed and placed in an isolated cold room until the destruction commission decides on the necessary quarantine measures.
Upon the fact of an administrative offense, a protocol on an administrative offense was drawn up under Part 2, paragraph 1 of Article 400 of the Code of Administrative Offenses of the Republic of Kazakhstan for violation of the legislation of the Republic of Kazakhstan in the field of plant quarantine during import, domestic transportation and sale of quarantine products, committed in the form of sale of infected quarantine facilities for quarantine products.
At the hearing, the chief specialist of the Department of the State Plant Quarantine and Phytosanitary Control posts, A., confirmed the facts stated in the protocol on the administrative offense. At the hearing, the representative of Agrofirma Almaty Seeds LLP, M., fully admitted guilt, confirming the facts stated in the protocol on the administrative offense. Having examined the case materials, the court considers that the actions of Agrofirma Almaty Seeds LLP of the Territorial Inspection of the State Inspection Committee in the Agro-Industrial Complex in Almaty under art. 400, part 2, paragraph 1 of the Administrative Code is qualified correctly-for violation of the legislation of the Republic of Kazakhstan in the field of plant quarantine during import, domestic transportation and sale of quarantine products, committed in the form of sale of infected quarantine facilities for quarantine products.
The chief specialist of the Department of the State Plant Protection and Phytosanitary Inspection posts, A., selected 1 sample /1 kg/ of infected quarantine products and sent them to the authorized organization, the Almaty Zonal Quarantine Laboratory, to confirm that the discovered entomological object belongs to a quarantine species. According to the quarantine examination certificate No. 1018 dated 02/15/2018, the fact of contamination of products by the quarantine facility has been confirmed.
The fault of Agrofirma Almaty Seeds LLP is confirmed by the protocol on an administrative offense dated 02/18/2019, the act of sampling, the conclusion of the phytosanitary quarantine examination, the act of seizure of quarantine products and other case materials. When determining the measure of administrative punishment, the court took into account mitigating, aggravating circumstances, the identity of the perpetrator, the court considers it possible to subject Agrofirma Almaty Seeds LLP to administrative punishment in the form of an administrative fine in the amount of 30 MCI.
The Specialized Interdistrict Administrative Court of Almaty, by a resolution dated March 01, 2019, found Agrofirma Almaty Seeds LLP guilty of committing an administrative offense under Article 400, Part 2, paragraph 1 of the Administrative Code and imposed an administrative penalty in the form of an administrative fine in the amount of 30 (thirty) monthly calculation indices, in the amount of 75,750 (seventy-five thousand seven hundred and fifty) tenge.
The subjective side of the offense is characterized by the fact that the act can be committed either in the form of direct intent or by negligence.
The subject of the offense being commented on is individuals, officials, small business entities or non-profit organizations, medium-sized businesses, and large businesses.
The object of the offense provided for in Part 3 of Article 400 of the Administrative Code is the established procedure for keeping records of the spread of quarantine facilities, as well as the procedure for organizing plant quarantine measures at facilities of state control and supervision in the field of plant quarantine.
According to Article 12 of the Law of the Republic of Kazakhstan "On Plant Quarantine", the objects of state quarantine phytosanitary control and supervision are:
1) seed and planting materials of agricultural, forest and ornamental crops, plants and their parts (cuttings, bulbs, tubers, fruits), as well as any other products of plant origin that may be a carrier of quarantine facilities;
2) plant pathogens - cultures of live fungi, viruses, bacteria, as well as nematodes, mites and insects;
3) collections of insects, plant pathogens, herbariums and seed collections;
4) agricultural machinery and implements for tillage, vehicles, all types of containers, packaging materials, industrial goods and products made of plant materials, monoliths and soil samples that may be carriers of quarantine facilities;
5) the territory and premises of organizations, peasant or farm, household and suburban farms that grow, harvest, store, process and sell products of plant origin, agricultural, forestry, water and other land;
6) domestic trade facilities, railway stations, bus stations, river ports, marinas, production facilities of postal operators;
7) compliance by local executive bodies with the legislation of the Republic of Kazakhstan in the field of plant quarantine.
The objective side of the offense is expressed in the commission of one of the following actions:
- untimely or improper accounting of the spread of quarantine facilities;
- untimely or improper organization of plant quarantine measures at facilities of state control and supervision in the field of plant quarantine.
Thus, in accordance with art. 13-1 of the Law of the Republic of Kazakhstan "On Plant Quarantine" in order to timely identify quarantine facilities and determine the boundaries of their distribution centers, land and forest lands, crops and plantings of agricultural, ornamental, medicinal and other crops, buildings, structures, containers, warehouses, other facilities and territories of organizations related to production, processing, storage, transportation, and sale of quarantined products, and other facilities that may be a source of infection and spread of quarantine facilities. These works are carried out by individuals and legal entities according to the instructions of the state plant quarantine inspectors, as well as the Republican Methodological Center for Phytosanitary Diagnostics and Forecasts.
The results of the survey, as well as the identified pests, plant pathogens and weeds, are sent to the state plant quarantine inspectors to determine and confirm whether these objects belong to quarantine species. In the event that the objects cannot be identified, the state plant quarantine inspectors send them to an authorized organization to confirm their affiliation to the quarantine species.
State plant quarantine inspectors of the territorial divisions of the authorized body carry out control inspections of these facilities. The results of the examination are formalized by an act on quarantine phytosanitary control and supervision.
Paragraph 48 of the "Rules for the protection of the territory of the Republic of Kazakhstan from quarantine objects and alien species", approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated June 29, 2015 No. 15-08/590, states that in order to identify quarantine objects and determine the boundaries of their distribution centers, land and forest lands, crops and plantings of agricultural, ornamental, medicinal and other crops, buildings, structures, containers, warehouses, other facilities and territories of organizations related to production, processing, storage, transportation and sale of quarantined products, and other facilities that may be a source of infection and spread of quarantine facilities.
These works are carried out by individuals and legal entities according to the instructions of the state plant quarantine inspectors, as well as the Republican Methodological Center for Phytosanitary Diagnostics and Forecasts.
State plant quarantine inspectors of the territorial divisions of the department of the authorized body conduct control inspections of these facilities. The results of the control examination are formalized by an act on plant quarantine control in accordance with the established form.
According to paragraph 49 of the "Rules for the protection of the territory of the Republic of Kazakhstan from quarantine objects and alien species", when quarantine objects are identified, quarantine zones are established according to the type of quarantine object, indicating the boundaries of its distribution. The decision to establish a quarantine zone in the territory of the region, the city of republican significance of the capital is made by the relevant local executive body, upon presentation of the territorial division of the department of the authorized body.
The subjective side of the offense is characterized by the fact that the act can be committed both in the form of intent and negligence.
The subject of the offense is a special official.
Part 4 of Article 400 of the Administrative Code contains the elements of an administrative offense (object, objective side, subjective side, subject) specified in part three of the commented article, with the exception of an additional feature – the commission of this act repeatedly within a year after the imposition of an administrative penalty.
According to Part 1 of Article 684 of the Administrative Code, judges of specialized district and equivalent administrative courts consider cases of administrative offenses provided for in Article 400 (part two). Administrative Code.
In accordance with Article 705 of the Administrative Code, the authorized plant quarantine body and its local authorities consider cases of administrative offenses provided for in Article 400 (parts one, three and four). Administrative Code. The Court has the right to consider cases of administrative offenses and impose administrative penalties.:
1) The Chief State Plant Quarantine Inspector of the Republic of Kazakhstan and his deputy;
2) chief state plant quarantine inspectors of the relevant regions, cities of republican significance, and the capital;
3) state plant quarantine inspectors of the relevant administrative-territorial units of the Republic of Kazakhstan and phytosanitary control posts.
Also, according to Part 2 of Article 720 of the Administrative Code, the state revenue authorities also consider cases of administrative offenses provided for in Article 400 (part one), when these administrative offenses are committed at automobile, sea checkpoints and other places where goods are transported across the State border of the Republic of Kazakhstan.
In accordance with sub-paragraphs 15) and 31) of Part 1 of Article 804 of the Administrative Code in cases of administrative offenses considered by the courts, protocols on administrative offenses may be drawn up by authorized officials.:
- plant quarantine and protection authorities (Articles 400 (part two) of the Administrative Code;
- state revenue authorities, as well as for administrative offenses committed at automobile checkpoints across the State border of the Republic of Kazakhstan, provided for in art. 400 (part two) 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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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