Commentary to article 481. Transfer of prohibited substances, products and objects to persons detained in institutions of the penal system, special institutions The Code of the Republic of Kazakhstan on Administrative Offences
1. Transfer, concealed from inspection, or an attempt to transfer by any means to persons held in institutions of the penal correction system, special institutions, alcoholic beverages, medicines and other substances with intoxicating effects, money, food, articles and other items prohibited for storage and use in these institutions, –
entails a warning or a fine in the amount of ten monthly calculation indices, with confiscation of the object that was the instrument or subject of an administrative offense.
2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –
They entail a fine in the amount of twenty monthly calculation indices or administrative arrest for up to thirty days, with confiscation of the object that was the instrument or subject of an administrative offense.
Part 1. The public danger of an administrative offense is the violation of the established order of detention in institutions of the penal system, special institutions.
The procedure and conditions for the execution and serving of punishments and other measures of criminal legal impact in institutions of the penal enforcement system are established by the penal enforcement legislation of the Republic of Kazakhstan. It is based on the Constitution of the Republic of Kazakhstan and generally recognized principles and norms of international law and consists of PECS, laws and other regulatory legal acts.
According to paragraph 4 of Article 3 of the Criminal Code, the penal enforcement (penitentiary) system is a system of bodies and institutions that perform executive and administrative functions to ensure the execution of criminal penalties, as well as organizations that ensure the functioning of these bodies and institutions.
An institution of the penal enforcement (penitentiary) system (hereinafter referred to as the institution) is a state institution intended for the execution of sentences of imprisonment, as well as the detention of persons sentenced to death (paragraph 5 of Article 3 of the Criminal Code).
The legal basis for the activities of special institutions that legally provide temporary isolation from society is determined by the Law "On the Procedure and conditions of detention of persons in special institutions, special premises that provide temporary isolation from Society" (hereinafter referred to as the Law). The Law also establishes the rights and obligations of the persons contained therein.
According to paragraph 2 of Article 2 of the Law, special institutions are a pre-trial detention facility, a temporary detention facility, a distribution receiver, and a special receiver.
A pre–trial detention facility is a special facility designed for detention:
- suspects and accused of committing a crime, in respect of whom detention has been chosen as a preventive measure;
- those sentenced to arrest;
- those sentenced to imprisonment;
- those sentenced to imprisonment who have been abandoned or sent to perform household maintenance work;
- convicts who arrived from institutions in accordance with the Penal Enforcement Code of the Republic of Kazakhstan (paragraph 11 of Article 2 of the Law).
A temporary detention facility is a special institution designed to detain persons detained on suspicion of committing criminal offenses, as well as persons subjected to administrative arrest (paragraph 12 of Article 2 of the Law).
A receiver-distributor is a special institution of the internal affairs bodies intended for the reception and detention of persons who do not have a specific place of residence and (or) identity documents, in the absence of signs of criminal and administrative offenses in their actions and the impossibility of establishing their identity by other means (paragraph 8 of Article 2 of the Law).
A special receiver is a special institution of the internal affairs bodies intended for the reception and detention of persons subjected to administrative arrest (paragraph 1 of Article 2 of the Law).
The object of the offense is the rules of the regime in institutions of the penal system, special institutions.
The regime of serving sentences in institutions is the procedure established by the penal enforcement legislation of the Republic of Kazakhstan for the execution and serving of sentences, ensuring the protection and isolation of convicts, constant supervision of them; the fulfillment of their duties, the exercise of their rights and legitimate interests; the safety of convicts and staff; separate detention of certain categories of convicts, different conditions of detention depending on type of institution; changing the conditions of serving a sentence. A regime is established in special institutions that ensures the observance of the rights of suspects and accused, the performance of their duties, their isolation, as well as the fulfillment of tasks provided for by the Criminal Procedure Code of the Republic of Kazakhstan.
The objective side of the offense is expressed in an action aimed at transferring prohibited substances, products and objects hidden from inspection or attempting to transfer them in any way to persons held in institutions of the penal correction system, special institutions.
According to Article 24 of the Law "On the procedure and conditions of detention of persons in special institutions, special premises providing temporary isolation from society", it is prohibited to transfer to suspects and accused persons objects, substances and foodstuffs that pose a danger to human life or health or can be used as a weapon of crime or to hinder the purposes of detention. in custody.
The internal regulations of institutions of the penal correction system contain a list of things and items that convicts are allowed to carry, receive in parcels, transfers, parcels and purchase in stores of institutions. Items not included in this List are prohibited. According to Article 97 of the Criminal Code, a ban on the storage and use of money and securities, as well as other objects, documents, things, products, substances, and food that are not provided for by the internal regulations of institutions is one of the main requirements of the regime of serving a sentence.
The following case from judicial practice demonstrates a typical example of the commission of this offense. Thus, by the decision of the judge of the specialized interdistrict administrative court of Almaty dated July 13, 2015, R. Azhimatova was found guilty of committing an administrative offense under art. 481 Part 1 of the Administrative Code and was subjected to administrative punishment in the form of an administrative fine in the amount of 10 monthly calculation indices in the amount of 19,820 tenge to the state income, with confiscation of three pieces of a SIM card. Beeline. When considering the case, the court found that Azhimatova R. On 26.06.2015, at about 09:45 a.m. in the LA-155/18 facility at checkpoint No. 2, she transmitted a transfer through the transfer room to H.T. Sulaimanov, who was under investigation. During the inspection of a hand bag, three Beeline SIM cards were found hidden from the inspection, which R. Azhimatova tried to transfer to the defendant. Sulaimanov Kh.T. Thus, Azhimatova R. committed an administrative offense under art. 481 part 1 of the Administrative Code.
The subject of the offense is a sane individual who has reached the age of sixteen.
On the subjective side, the act is committed intentionally. The guilty person was aware of the unlawful nature of his action, foresaw its harmful consequences and desired or consciously allowed these consequences to occur or treated them indifferently.
The second part of the commented article defines the commission of a similar offense repeatedly as a qualifying feature within a year after the imposition of an administrative penalty under the first part of Article 481 of the Administrative Code.
Protocols on administrative offenses provided for in Article 481 of the Administrative Code may be drawn up by authorized officials of internal affairs bodies, correctional institutions or pre-trial detention facilities (Article 804 of the Administrative Code).
Cases of these administrative offenses are considered by judges of specialized district and equivalent administrative courts (Part 1 of Article 684 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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