Commentary to article 447. Violation of the rules of protection and use of historical and cultural monuments The Code of the Republic of Kazakhstan on Administrative Offences
Violation of the rules for the protection and use of historical and cultural monuments protected by the State, -
entails a fine for individuals in the amount of five, for officials - in the amount of ten monthly calculation indices.
The commented article reveals the elements of offenses related not only to violations of the requirements for the protection of historical and cultural monuments, but also the requirements for their use and maintenance in proper condition. It should be noted that the object of protection is only historical and cultural monuments that are protected by the state.
The generic object of the analyzed offense is public order and public morality. The direct object of the offenses provided for in the commented article is the social relations that develop in the field of ensuring the preservation of cultural heritage sites of the peoples of the Republic of Kazakhstan.
The objective side of offenses consists in non-compliance or violation of those prescriptions contained in regulatory legal acts regulating the protection and use of cultural heritage sites.
The main legislative act regulating relations in the field of preservation, use and state protection of cultural heritage sites of the peoples of the Republic of Kazakhstan is the Law of the Republic of Kazakhstan dated July 2, 1992 "On the Protection and Use of Historical and Cultural Heritage sites" (hereinafter - the Law).
Based on article 4 of this Law, historical and cultural monuments are divided into the following types::
1) monuments of urban planning and architecture - architectural ensembles and complexes, historical centers, quarters, squares, streets, remnants of ancient planning and buildings of cities and other settlements; structures of civil, residential, industrial, military, religious architecture, folk architecture, as well as related works of monumental, decorative, applied and horticultural-park art, natural landscapes;
2) archaeological sites - sites, mounds, mounds, remains of ancient settlements, fortifications, industries, canals, roads, ancient burial sites, stone sculptures, rock carvings and inscriptions, sites of the historical cultural layer of ancient settlements and other places with traces of the life and activity of ancient man;
3) ensembles are groups of isolated or combined monuments, buildings and structures for fortification, palace, residential, public, administrative, commercial, industrial, scientific, educational purposes, as well as monuments and structures for religious purposes, including fragments of historical layouts and settlement buildings localized in historically established territories.
In order to effectively organize the accounting and protection of historical and cultural monuments, monuments are divided into the following categories::
1) historical and cultural monuments of international importance, representing historical, scientific, architectural, artistic and memorial value, included in the UNESCO World Cultural and Natural Heritage List;
2) historical and cultural monuments of national significance, representing historical, scientific, architectural, artistic and memorial value, having special significance for the history and culture of the whole country;
3) historical and cultural monuments of local significance, representing historical, scientific, architectural, artistic and memorial value, having special significance for the history and culture of regions, cities of republican significance, the capital, districts (cities of regional significance).
The protection and use of historical and cultural monuments include a system of measures aimed at:
1) identification, research and promotion of historical and cultural heritage sites;
2) securing the status of historical and cultural monuments for objects of historical and cultural heritage;
3) ensuring protection against destruction, vandalism, falsification, hoax, distortion, making unjustified changes, and removal from the historical context;
4) revival and preservation through archaeological and scientific restoration work;
5) maintenance in accordance with the standards that ensure their safety;
6) use in the process of reviving the ethno-cultural environment, as well as for scientific and educational purposes.
Cultural heritage sites of outstanding universal historical, archaeological, architectural, artistic, scientific, aesthetic, ethnological or anthropological value may be classified as World cultural and natural heritage sites in accordance with the procedure established by the Convention on the Protection of the World Cultural and Natural Heritage and ratified by Kazakhstan by the Law of the Republic of Kazakhstan dated December 21, 2011 No. 514..
The procedure for the protection and maintenance of historical and cultural monuments is regulated by the Order of the Minister of Culture and Sports of the Republic of Kazakhstan dated December 29, 2014 No. 157. Owners and users of monuments in order to ensure their safety:
1) provide protection against damage and (or) destruction, acts of vandalism, falsification, hoax, distortion, making unjustified changes, removal from the historical context;
2) notify the local executive bodies of regions, cities of republican significance, the capital, districts (cities of regional significance) of proposed or accomplished changes in property rights;
3) carry out scientific and restoration work. Coordinate scientific and restoration work on historical and cultural monuments of international and national significance with the authorized body for the protection and use of historical and cultural heritage sites.;
4) send to the local executive bodies of the regions, cities of republican significance, and the capital, in accordance with the procedure established by the Law of the Republic of Kazakhstan dated May 16, 2014 "On Permits and Notifications", notification of the start of scientific and restoration work on historical and cultural monuments of local significance.;
5) provide access to monuments for scientific, cultural and other purposes in the manner and within the limits established by special agreements with local executive bodies of regions, cities of republican significance, the capital, districts (cities of regional significance);
5) they contain monuments in accordance with the standards that ensure their safety.
Local executive bodies of regions, cities of republican significance, and the capital issue protective obligations to owners and users of monuments in accordance with the procedure established by Order No. 74 of the Minister of Culture and Sports of the Republic of Kazakhstan dated February 27, 2015 "On Approval of the Rules for Issuing Protective Obligations for Historical and Cultural Monuments." A security obligation is a document that records the condition of the monument at the time of registration of this document and the conditions of maintenance of the monument of history and culture by the owner or user.
The procedure for providing historical and cultural monuments for use is provided for by Order No. 369 of the Minister of Culture and Sports of the Republic of Kazakhstan dated November 30, 2015. An agreement for the use of monuments of international and national significance, which are republican property, is concluded between the authorized body for state property and an individual or legal entity in coordination with the authorized body.
A contract for the provision of monuments of international and national significance, which are communal property, is concluded between the local executive body of the region, the city of republican significance, the capital and an individual or legal entity in coordination with the authorized body.
A contract for the provision of monuments of local significance, which are republican property, is concluded between the authorized body for state property and an individual or legal entity in coordination with the authorized body.
A contract for the provision of monuments of local significance, which are communal property, is concluded between the local executive body of the region, the city of republican significance, the capital and an individual or legal entity. The contract is concluded for a period of no more than three years.
Subjects of administrative responsibility are citizens and officials guilty of intentionally failing to comply with or violating the rules for the protection and use of cultural heritage sites. On the basis of Article 30 of the Administrative Code, an official is held administratively liable if he commits an administrative offense in connection with non-performance or improper performance of his official duties. In the absence of this circumstance, an official guilty of committing an administrative offense is liable on general grounds.
The subjective side of the article under consideration is characterized by an intentional form of guilt. However, there may be a situation where the offense was committed negligently.
They have the right to initiate proceedings under the commented article and impose an administrative penalty.:
1) chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, city of republican significance, capital, their deputies (paragraph 1, Part 2, Article 685 of the Administrative Code);
2) employees of the internal affairs bodies (police) with special ranks (clause 4, Part 2, Article 685 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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