Commentary to article 563. Violation of the procedure for using the airspace of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the procedure for using the airspace of the Republic of Kazakhstan, namely flights of aircraft and other aircraft, conducting all types of firing, missile launches, explosive work and other activities related to the movement of material objects in the airspace of the Republic of Kazakhstan, committed in the form of:
1) carrying out activities without submitting a flight plan (when flying in uncontrolled airspace without notification) and (or) without permission to fly, and (or) without permission to carry out activities that pose a threat to the safety of aircraft flights;
2) flight of a group of aircraft, the number of which exceeds that specified in the permit;
3) non-compliance by aircraft with the modes of use of airspace;
4) aircraft landing at an airfield not specified in the flight plan, except in cases of emergency landing and transfer to an alternate airfield;
5) overflight of an aircraft without the permission of the Ministry of Defense of the Republic of Kazakhstan over the territory of the forbidden zone and the restricted zone;
6) deviations from air routes and route axes by distances exceeding the established standards, except in cases of a clear threat to flight safety and the prevention of an aviation accident;
7) failure to comply with the commands of the air traffic services or air traffic control authorities by users of the airspace, with the exception of a clear threat to flight safety and the prevention of an aviation accident, -
entails a fine for individuals in the amount of ten, for officials - in the amount of twenty 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 fifteen, on officials - in the amount of twenty-five monthly calculation indices, with confiscation of the object that was the instrument of the offense.
The main purpose of this article is to maintain order on the use of the airspace of the Republic of Kazakhstan by administrative and legal means. The legal regulation of the use of the airspace of the Republic of Kazakhstan and the activities of aviation is contained in the Law of the Republic of Kazakhstan dated July 15, 2010 No. 339. This law regulates public relations related to the use of the airspace of the Republic of Kazakhstan and aviation activities, and defines the procedure for the use of airspace and aviation activities in order to protect human life and health, the environment, the interests of the State, ensure the safety of aircraft flights and meet the needs of the economy of the Republic of Kazakhstan, individuals and legal entities in aviation services.
The object of the offense is public relations related to the use of the airspace of the Republic of Kazakhstan.
The objective side of Part 1 of the offense under consideration is expressed in illegal actions (inaction) that violate the established procedure for using the airspace of the Republic of Kazakhstan in the forms listed in Part 1 of Article 563 of the Administrative Code.
Similar actions on violation of the procedure for the use of airspace, which are listed in Article 27 of the Law of the Republic of Kazakhstan dated July 15, 2010 No. 339-IV "On the use of the Airspace of the Republic of Kazakhstan and aviation activities" in the form of:
1) the activities specified in Article 18 of this Law carried out without submitting a flight plan (when flying in uncontrolled airspace without notification) and (or) without a flight permit, and (or) without a permit to carry out activities that pose a threat to flight safety;
2) flight of a group of aircraft, the number of which exceeds that specified in the permit;
3) non-compliance by aircraft with the modes of use of airspace;
4) overflight by an aircraft of a restricted zone and (or) a restricted zone without special permission from the air traffic control authorities of the authorized body in the field of state aviation;
5) landing of aircraft at an airfield not specified in the flight plan, except in cases of emergency landing and transfer to an alternate airfield;
6) deviation from air routes and from route axes by distances exceeding the norms established by the Rules for the Use of the Airspace of the Republic of Kazakhstan, except in cases of a clear threat to flight safety and prevention of an aviation accident;
7) failure to comply with the commands of the air traffic services or air traffic control authorities by users of the airspace, except in cases of a clear threat to flight safety and the prevention of an aviation accident.
In accordance with article 18 of this Law, activities related to the use of the airspace of the Republic of Kazakhstan include:
1) flights of aircraft and other aircraft;
2) all types of firing and missile launches, explosive work and other activities related to the movement of material objects in the airspace.
Individuals and legal entities carrying out the activities specified in the above paragraphs are users of the airspace.
The Rules for the use of the Airspace of the Republic of Kazakhstan, approved by Resolution No. 506 of the Government of the Republic of Kazakhstan dated May 12, 2011, define the structure of the airspace, which includes the following elements:
1) flight information areas and control areas;
2) Air traffic service routes;
3) nodal control areas, control zones and airfield traffic zones;
4) areas of uncontrolled airspace;
5) special flight zones of state aviation;
6) Restricted areas;
7) Dangerous areas;
8) Restricted flight zones;
9) air routes;
10) airspace zones with the mandatory requirement of a transponder (TMZ);
11) airspace zones with mandatory radio communication (RMZ).
Certain parts of the airspace and certain airfields where a decision has been made to provide air traffic services should be designated in accordance with the type of air traffic services.
The subject of the violation of part 1 of the commented article may be individuals or officials guilty of violating the procedure for using airspace.
The second part of the commented article provides for liability for illegal actions listed in part 1 of Article 563 of the Administrative Code, committed repeatedly within a year after the imposition of an administrative penalty.
The subjects of Part 2 of the offense may be citizens, officials guilty of repeated commission of these offenses.
The subjective side of all parts of the commented article can be expressed either as direct intent or carelessness.
Authorized officials of civil aviation authorities have the right to initiate proceedings on both parts of the commented article (art. 691 part 3 and art. 804 part 1, paragraph 24 of the Administrative Code).
They have the right to impose administrative penalties:
1) according to Part 1 - authorized officials of civil aviation authorities (part 3 of Article 693 of the Administrative Code);
2) in part 2 – judges of specialized district and equivalent administrative courts (Part 1 of Article 684 of the Administrative Code).
According to part 2 of the commented article, confiscation is imposed by the court, which is solely a measure of additional administrative punishment and consists in the forced gratuitous conversion of an instrument or object of an administrative offense, as well as property obtained as a result of an administrative offense, into state ownership in accordance with the procedure established by law.
Paragraph 27 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5 "On the decision of the court in the case of an administrative offense" clarifies the differences between confiscation and seizure from illegal possession of property from the offender. The seizure from the illegal possession of a person who has committed an administrative offense of items of an administrative offense that have been withdrawn from circulation and are subject to conversion to State revenue or destruction does not constitute confiscation. When making a ruling on an administrative offense case, the court must decide on the fate of these facilities, regardless of whether the person is brought to administrative responsibility, including when making a decision to terminate the proceedings.
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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