Commentary to article 54. Establishing special requirements for the offender's behavior  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. When considering a case of an administrative offense by a court on its own initiative or at the request of the police or other participants in the proceedings on an administrative offense, special requirements may be established for the behavior of a person who has committed an administrative offense provided for in articles 73, 73-1, 73-2, 127, 128, 131, 434, 435, 436, 440 ( part of third), 442 (part of the third), 448, 461, 482, 485 ( part two) of this Code for a period of three months to one year, providing in full or separately for the prohibition:

     1) against the victim's will, seek out, harass, visit the victim, conduct oral, telephone conversations and contact him in other ways, including minors and (or) incapacitated members of his family;

     2) to acquire, store, carry and use firearms and other types of weapons;

     3) minors may visit certain places or travel to other localities without the permission of the Commission for the Protection of the Rights of Minors;

     4) to consume alcoholic beverages, narcotic drugs, psychotropic substances.

     2. When establishing special requirements for the behavior of a person who has committed an administrative offense in the field of family and household relations, in exceptional cases, the court may apply, for a period of up to thirty days, a measure of administrative and legal influence in the form of a ban on a person who has committed domestic violence to live in an individual residential building, apartment or another dwelling with the victim if this person has another dwelling.

     3. During the period of validity of the special requirements for the offender's behavior, he may be required to report to the internal affairs bodies for a preventive conversation from one to four times a month.

     Part 1. According to the reports of the Department of the Ministry of Internal Affairs of the Republic of Kazakhstan for the protection of women from violence in Kazakhstan in 2018, special requirements for the behavior of the offender were established about 6,000 times. The most widespread application of Article 54 of the Administrative Code has been in the field of family and household relations.

     For the first time, the commented measure of influence was provided for in Kazakhstan by the Law of the Republic of Kazakhstan dated December 4, 2009 No. 214 "On the prevention of domestic violence".

     The Administrative Code (effective until January 1, 2015) was supplemented with Article 59-1 "Establishing special requirements for the behavior of offenders" in accordance with the Law of the Republic of Kazakhstan dated April 29, 2010 No. 272-IV "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the prevention of offenses".  

     In the current Code of Administrative Offenses, from January 1, the establishment of special requirements for the behavior of offenders was provided for in Article 54, but so far this article has been amended and supplemented 3 times.  

     Firstly, the Law of the Republic of Kazakhstan dated October 31, 2015 No. 378 "On Amendments and additions to certain Legislative Acts of the Republic of Kazakhstan on improving the system of administration of justice" changed the list of administrative offenses for which it is possible to impose restrictions on behavior provided for in the analyzed article. So, only for violation of part 3 of art. 442 courts are allowed to apply art. 54 of the Administrative Code, namely for the repeated presence of minors in entertainment establishments at night unaccompanied by legal representatives from 22 to 6 a.m., and the presence of minors unaccompanied by legal representatives outside the home from 23 to 6 a.m.

     Secondly, the Law of the Republic of Kazakhstan dated April 9, 2016 No. 501 "On Amendments and additions to certain legislative Acts of the Republic of Kazakhstan on the protection of children's rights", Article 54 of the Administrative Code, was supplemented with a new ban on the offender's behavior to consume alcoholic beverages, narcotic drugs, psychotropic substances, including in everyday life. If an offender who is prohibited from using alcoholic beverages, narcotic drugs, psychotropic substances appears in a public place in a state of intoxication that offends human dignity and public morality, then his actions should be qualified not only under Article 669 of the Administrative Code, but also under Article 440 of the Administrative Code.  

     Thirdly, according to the Law of the Republic of Kazakhstan dated July 3, 2017 No. 84 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on improving the law enforcement system", the list of administrative offenses for which special requirements for the offender's behavior can be established was supplemented with new articles 73-1 and 73-2, transferred from the Criminal Code.

     Due to the adoption of the new Administrative Code, the list of administrative offenses has significantly changed, for which special requirements for the offender's behavior can be established. If in the original version of Article 59-1, which was in force until December 31, 2014, it was possible to apply only for violations of five articles of the Administrative Code, the number of articles has now tripled. It should be noted that the list of administrative offences specified in Article 54 of the Administrative Code does not apply only to the sphere of family and household relations.

     The legal basis for the application of the analyzed administrative and legal impact measure has emerged since the adoption of the Law of the Republic of Kazakhstan "On the Prevention of domestic Violence", and the protective order has the same purpose – to ensure the safety of victims of domestic violence by separating the contacts of the conflicting parties. In addition to the prohibitions of the protective order (to search for, harass, visit the victim, conduct oral, telephone conversations and contact him in other ways), there were additional restrictions - to acquire, store, carry and use firearms and other types of weapons. Also, by this measure of influence, the court may impose duties - to appear in the internal affairs bodies for a preventive conversation from one to four times a month.

     It is possible to establish special requirements for the offender's behavior for administrative offenses provided for in articles:

     73 - Illegal actions in the sphere of family and household relations;

     73-1- Intentional infliction of minor harm to health;

     73-2 - Beatings;

     127 - Failure by parents or other legal representatives to fulfill their child-rearing responsibilities;

     128 - Involvement of a minor in the commission of an administrative offense;

     131 - Bringing a minor to a state of intoxication;

     434 – Minor hooliganism;

     435 – Hooliganism committed by a minor;

     436 - Firing of firearms, gas, pneumatic weapons, launching pyrotechnic substances and products with their use in populated areas;

     440 (Part 3) - Drinking alcoholic beverages or appearing intoxicated in public places;

     442 (Part 3) - Presence of minors in entertainment establishments at night;

     448 - Vandalism of minors;

     461 - Violation of a protective order;

     482 - Illegal acquisition, transfer, sale, storage, carrying, transportation of weapons by individuals and legal entities;

     485 (Part 2) - Violation of the procedure for registration (re-registration) of civilian and service weapons or the procedure for registering them.

     Only articles 73 and 461 of the Administrative Code are directly related to the sphere of family and household relations. Thus, the commented norm provides for the following prohibitions on behavior towards a domestic abuser:

     1) against the victim's will, seek out, harass, visit the victim, conduct oral, telephone conversations and contact him in other ways, including minors and (or) incapacitated members of his family;

     2) to acquire, store, carry and use firearms and other types of weapons;

     3) minors may visit certain places or travel to other localities without the permission of the Commission for the Protection of the Rights of Minors;

     4) to consume alcoholic beverages, narcotic drugs, psychotropic substances.  

     The above restrictions can be applied to the offender in the sphere of everyday life in full or separately from each other for a period of three months to one year.  

     On the basis of Part 3 of Article 69 of the Administrative Code, the establishment of special requirements for the behavior of a minor is a measure of educational influence, and the period of application is set at three to six months.  

     In terms of restrictions on "searching", "stalking", "visiting" and "contacting" should exclude the cohabitation of conflicting parties in the sphere of everyday life, but since the expulsion of a person who has committed domestic violence is provided only in exceptional cases, in law enforcement practice such prohibitions are formal. It is difficult to imagine the observance of such prohibitions if the conflicting parties to family and household relations continue to live together within an individual residential building, apartment or other dwelling.

     In addition to the victim of domestic violence, the object of protection and protection under the article are other persons who have fallen into a difficult life situation from domestic violence, namely minors and (or) incapacitated members of his family, with whom the offender may also be prohibited by the court from contacting by any means.

     Conducting oral or telephone conversations that are not related to the provision of psychological (emotional) domestic violence cannot be regarded as a violation of the prohibitions established by art. 54 of the Administrative Code. For example, a domestic abuser may come into contact with a victim of domestic violence to resolve issues of child care, payment of utility bills, etc. That is, such contacts do not contain signs of the subjective side of the offense, since the intent of the offender is not aimed at violating the prohibitions established by art. 54 of the Administrative Code.  

With the introduction of the new Administrative Code, the commented norm, in contrast to the provisions of Article 22 of the Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence", another ban began to apply when establishing special requirements for behavior for minors - "to visit certain places, travel to other areas without the permission of the Commission for the Protection of the Rights of minors."  

     Part 2 of the commented article provides for a measure of administrative and legal impact in the form of a ban on a person who has committed domestic violence to live in an individual apartment building, apartment or other dwelling with the victim if this person has another dwelling, and was first introduced by the Law of the Republic of Kazakhstan dated February 18, 2014 No. 175 "On Amendments and Additions to some acts of the Republic of Kazakhstan on combating domestic violence".  

     But because of the words in the norm "if this person has another home," this norm is doomed to its rare application in the practical activities of law enforcement agencies.

     Temporary "expulsion" of a domestic offender is provided only in exceptional cases. "Exceptional cases" should be understood as real threats to the life and health of the victim of violence and her family members, as well as cases where the offender's actions have circumstances that aggravate responsibility for an administrative offense provided for in Article 57 of the Administrative Code.  

     Since the norm under analysis is almost always issued after a protective order, and if the requirements of the protective order have shown their ineffectiveness, the actions of a person who has committed repeated domestic violence should be considered exceptional cases. The special requirements for the offender's behavior completely absorb the restrictions on the issuance of a protective order.

     The court may determine that a domestic abuser should be prohibited from living in an individual apartment building, apartment or other dwelling with the victim for a period of only up to 30 days. The extension of this period is not provided for by the legislation of the Republic of Kazakhstan. When imposing this prohibition, the court should take into account that the presence of another home for the offender should be understood as the presence of other housing in the family (apartments, houses, cottages), the possibility of his living with relatives, friends, acquaintances, etc. It is possible to exclude the cohabitation of conflicting parties in the sphere of family and household relations on the basis of paragraph 3 of art. 15 of the Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence" dated December 4, 2009 No. 214, which stipulates that aid organizations "provide temporary accommodation to victims in accordance with their capabilities."

     Courts should take into account that "the establishment of special requirements for the offender's behavior" is a measure of administrative and legal impact and is applied along with the imposition of an administrative penalty, and instead of it when releasing a person who has committed an administrative offense from administrative responsibility" (Part 2 of Article 22 of the Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence).

     Comparing the content of the articles of the laws and the Administrative Code with the same name "Establishing special requirements for the behavior of an offender", we conclude that there are significant differences between Article 54 of the Administrative Code, which has been amended and supplemented several times, Article 27 of the Law of the Republic of Kazakhstan "On the Prevention of Offenses" and Article 22 of the Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence". Thus, the mechanism for establishing and monitoring the fulfillment of special requirements for the offender is interpreted in different ways.

     In this regard, the opinion of S.V. Korneychuk and N.S. Gladyr is substantiated, who believe that "Article 54 of the Administrative Code is the highest in status before the norms of the laws being compared. Parts 3 and 4 of the Law of the Republic of Kazakhstan "On the prevention of domestic violence" partially duplicates the provisions of art.54 of the Criminal Code. Article 22 of the Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence" does not contain any special features on the mechanism of applying special requirements to the behavior of domestic violence, therefore, the existence of this norm in specialized Laws of the Republic of Kazakhstan does not make sense."

     Control over the implementation of the prohibitions established by this article, registration for preventive maintenance and the implementation of individual preventive work in relation to persons who have committed an offense in the field of family and household relations is carried out by the Department of Internal Affairs on the basis of departmental Rules of the Ministry of Internal Affairs of the Republic of Kazakhstan.

     In case of violation of the restrictions established by Article 54 of the Administrative Code, the actions of the offender should be qualified under Article 669 of the Administrative Code for non-compliance with a court decision or other judicial act. The procedure for bringing to administrative responsibility under Article 669 of the Administrative Code is indicated in the comments to this article.

     If the offender, to whom special requirements for behavior may be imposed, has an official permit for the circulation of any type of weapon, then the person performing administrative procedural actions must seize the weapon before making a decision on the case with the establishment of special requirements for the offender's behavior.

     Paragraph 4 of Article 19 of the Law of the Republic of Kazakhstan dated December 30, 1998 No. 339 "On State control over the turnover of certain types of weapons" states that "the termination of permits for the storage or storage and carrying of weapons without prior suspension is carried out by law enforcement agencies in the following cases::

     - committing an administrative offense repeatedly within a year, provided for in articles 127, 128, 131, 382, 434, 437, 438, 440, 443, 444, 448, 450, 460, 476, 477, 478, 481, 482, 484, 485-1, 486, 487, 489, 490, 493, 506 Administrative Code;

     - committing a criminal offense provided for in Articles 109, 287 (part one), 288 (part four), 289, 296 (part one), 337 (parts one and two), 346 (part one), 379 (part one), 389 (parts one and two) of the Criminal Code and an administrative offense, provided for in Articles 73, 436, 453 and 461 of the Administrative Code.  

     At the same time, it should be noted that Article 109 of the Criminal Code was transferred to the Administrative Code by the Law of the Republic of Kazakhstan dated July 3, 2017 No. 84 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on improving the law enforcement system."  

     In this regard, permits for the storage or storage and carrying of weapons in relation to offenders should be terminated in accordance with all articles specified in art.54 of the Administrative Code.  

     Part 3 of Article 54 provides for the duties of the offender to report to the internal affairs bodies for a preventive conversation from one to four times a month.  

     Based on paragraph 6 of Article 22 of the Law of the Republic of Kazakhstan dated December 4, 2009 "On the prevention of domestic Violence", "a person in respect of whom special requirements for behavior are established, the Department of Internal Affairs is placed on preventive register and preventive control is carried out over him."  

     The mechanism for the implementation of this measure is set out in the Rules for the Preventive monitoring of persons on preventive registration, approved by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated July 15, 2014 No. 432.  

     The results of the preventive conversation are formalized by a certificate or report of the person carrying out preventive control, which are filed in the preventive file for the person in respect of whom special requirements for behavior are established.

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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