Commentary to article 505. Violation of the rules of landscaping of cities and towns, as well as the destruction of infrastructure, destruction and damage to green spaces of the city and towns The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the rules for the improvement of the territories of cities and towns, as well as the destruction of infrastructure facilities, destruction and damage to green spaces of cities and towns -
They entail a warning or fine for individuals in the amount of twenty, for 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.
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 impose a fine on individuals in the amount of thirty, on small businesses or non-profit organizations in the amount of forty, on medium-sized businesses in the amount of fifty, on large businesses in the amount of three hundred monthly calculation indices.
The object of the administrative offense being commented on is the established management procedure in the field of maintaining the improvement of cities and settlements, the protection and protection of infrastructure facilities and green spaces.
The objective side of part 1 of the analyzed article contains three qualifying features:
1) violation of the rules of improvement of territories of cities and settlements;
2) destruction of infrastructure facilities in cities and towns;
3) destruction and damage of green spaces in cities and towns.
The above-mentioned qualifying signs of an offense are blank and, when qualified, officials who have the right to initiate proceedings on administrative offenses under this article should apply the legal provisions set out in the Rules for the Maintenance and Protection of Green Spaces and Landscaping approved by local representative bodies. Such regulatory legal acts should be developed taking into account the Order of the Minister of National Economy of the Republic of Kazakhstan dated March 20, 2015 No. 235 "On approval of Standard Rules for the maintenance and protection of green spaces, landscaping of cities and settlements." The Rules do not apply to the territories of an existing individual residential building, suburban areas of citizens and the state forest fund, and specially protected natural areas of national significance.
For example, the district police inspector of the local police service of the Kostanay region, when qualifying an offense under Article 505 of the Administrative Code, should use the Decision of the Kostanay regional Maslikhat dated March 15, 2017 No. 130 "On approval of the Rules for maintaining green spaces, Rules for landscaping the territories of cities and towns of the Kostanay region."
Landscaping is a set of works and activities carried out in order to bring a particular territory into a condition suitable for construction, normal use for its intended purpose, and the creation of healthy, comfortable and cultural living conditions for the population.;
The destruction of green spaces should be understood as illegal actions in the form of damage to green spaces, which led to their death.
The infrastructure of a city is a set of economic sectors and activities that serve both the productive and non-productive sectors of the economy in order to create conditions for the normal activities of the main sectors of the economy of material production and the formation of the productive forces of the state.
The tasks of landscaping are to provide a set of elements and works that ensure a convenient, comfortable and safe human life on the territory of the city and other settlements. This complex of works provides for the organization, maintenance, operation, repair and protection of facilities and landscaping elements in the following main areas:
1) engineering landscaping;
2) exterior and aesthetic improvement;
3) sanitary improvement;
4) landscaping.
Consideration of current landscaping issues is assigned to special commissions under local executive bodies. The functions of the commission include:
1) consideration of controversial issues related to the maintenance and technical condition of the city's engineering networks and structures;
2) consideration of controversial issues related to the installation, maintenance and modification of objects of external aesthetic improvement.
3) consideration of controversial issues related to the external aesthetic design and condition of the adjacent territories of the housing stock and territories of non-residential buildings.
4) consideration of controversial issues related to the consolidation of territories during the months of sanitary cleaning of territories.
5) consideration of proposals of individuals and legal entities to improve the sanitary condition.
6) consideration of applications and issuance of opinions on the need for demolition, replanting, pruning of green spaces of the city (locality).
Legal entities and individuals must maintain cleanliness and order throughout the city, including on the territories of private households, and prevent damage and destruction of landscaping elements (roads, sidewalks, lawns, small architectural forms, lighting, drainage, etc.).
The current sanitary maintenance of the city is carried out by specialized enterprises and consists in carrying out measures to ensure the maintenance and improvement of highways, roads, streets, engineering structures (bridges, dams, overpasses, and so on), street lighting facilities, small architectural forms, and other facilities.
It should be noted that the above-mentioned illegal acts can be expressed in the form of an action or omission. The composition of the offense is material and, if qualified, there must necessarily be consequences from destruction, destruction, damage. Unfortunately, the article does not specify the amount of material damage that is allowed for an administrative offense. In this regard, when qualifying an offense, the existence of competing norms of the Criminal Code should be taken into account. For example, the destruction or damage of greenery should be distinguished from criminal damages in the form of:
-illegal handling of rare plant species (Article 339 of the Criminal Code);
-illegal felling, destruction or damage of trees and shrubs (art. 340 of the Criminal Code);
- destruction or damage of forests (Article 341 of the Criminal Code), etc.
In this regard, it is justified that the disposition of the article should end with the words: "if these actions do not contain signs of a criminally punishable act."
Part 2 of the commented article provides for the qualifying features of the first part of the article, committed repeatedly within a year after the imposition of an administrative penalty.
The subjects of the offense may be individuals, small business entities or non-profit organizations, as well as medium and large business entities.
The subjective side of the offense is expressed by guilt in the form of direct intent, both indirectly.
They have the right to impose administrative penalties under Article 505 of the Administrative Code.:
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, art. 685 of the Administrative Code);
2) for only 2 parts - heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies (paragraph 2, part 2, art. 685 of the Administrative Code);
3) only in part 1 - employees of the internal affairs bodies (police) with special ranks (paragraph 4, part 2, art. 685 of the Administrative Code);
4) akims of cities of district significance, towns, villages, rural districts committed on the territory of cities of district significance, towns, villages, rural districts (part 3 of art. 729 of the Administrative Code).
The provision of paragraph 2 of Part 2 of Article 685 of the Administrative Code remains unclear, which does not allow the heads of the administrative police and the local police service to impose penalties under part 1 of Article 505 of the Administrative Code. That is, a situation has been created where the leadership does not have the jurisdictional authority to impose administrative penalties, and their subordinates have the right to do so. In this regard, it is justified that in paragraph 2 of Part 2 of Article 685 of the Administrative Code, after the number 505, the words (part 2) should be deleted.
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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