Commentary to article 565-2. Failure to comply with or improper execution of the corrective action plan or failure to notify the air navigation service provider of the Code of Administrative Offences of the Republic of Kazakhstan  

     Failure or improper execution by the holder of the certificate of the air navigation service provider of the corrective action plan within the established time frame or failure to notify the air navigation service provider of changes in the functional systems of the organization of air traffic -

     entails a fine for small businesses in the amount of two hundred, for medium-sized businesses in the amount of five hundred, for large businesses in the amount of two thousand monthly calculation indices.

     For the first time, this norm was supplemented by the Code of the Republic of Kazakhstan on Administrative Offenses on the basis of the Law of the Republic of Kazakhstan dated May 10, 2017 No. 64 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the use of airspace and aviation activities."

     Previously, illegal actions (omissions) provided for in Article 565-2 of the Administrative Code were punishable by disciplinary proceedings.

     The object of the administrative offense being commented on is the social and legal relations in the field of flight safety in air transport.

     The objective side of the article under consideration is characterized by three qualifying features, which are expressed by illegal actions (omissions) in the form of:

     1) failure by the holder of the air navigation service provider's certificate to comply with the corrective action plan within the established time frame;

     2) improper execution of the corrective action plan by the owner of the air navigation service provider certificate within the established time frame;

     3) failure of the air navigation service provider to notify about changes in the functional systems of the organization of air traffic.

     The following concepts are used in the disposition of the article:

     1) aeronautical information - information obtained as a result of data collection, analysis and processing for the purposes of aircraft flight operations, air traffic services and air traffic control;

     2) aeronautical information document - a document that contains information that is important for flight operations, air traffic services and air traffic control, approved and published in accordance with the established procedure.

     3) air navigation services - activities that include the organization of air traffic, the provision of communication, navigation and surveillance systems, meteorological and search and rescue support for flights, and the provision of aeronautical information.

     The above types of services are provided to users of the airspace at all stages of the flight (approach, in the area of the airfield and on the route)

     4) air navigation service provider - a legal entity providing air traffic management and (or) other air navigation services;

     5) certificate of the air navigation service provider is a standard document certifying the compliance of the air navigation service provider with the certification requirements.

     The legal basis for certification of an air navigation service provider is contained in Article 35-1 of the Law of the Republic of Kazakhstan dated July 15, 2010 No. 339. Air navigation service providers must comply with the certified requirements approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated June 26, 2017 No. 384 "On Approval of the Rules for Certification and Issuance of an Air Navigation Service Provider Certificate, as well as Certification Requirements for Air Navigation Service Providers." These Rules define the order:

     1) certification and issuance of an air navigation service provider certificate;

     2) suspension (revocation) of the certificate of the air navigation service provider, making changes and (or) additions to it;

     3) ensuring flight safety in case of changes in the functional systems of air traffic management.

     Refusal to issue an air navigation service provider certificate is made in cases where the applicant does not meet the required certification requirements. The authorized body in the field of civil aviation, in case of violations of certification requirements for the continuity of air navigation services, takes actions in the following order::

     1) requires the holder of the air navigation service provider certificate to submit a corrective action plan in accordance with art. 16-3 of the Law of the Republic of Kazakhstan "On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities";

     2) initiates administrative proceedings in accordance with the Administrative Code in case of non-fulfillment or improper fulfillment of the corrective action plan;

     3) depending on the violation, revokes the certificate of the air navigation service provider or suspends in whole or in part the scope of such certificate (or the permitted types (subspecies) of activities specified in the certificate) if violations of certification requirements are not eliminated in the next six months from the date of bringing to administrative responsibility.

     The validity of the certificate of an air navigation service provider may also be fully or partially limited upon the application of its holder in accordance with the rules for certification of air navigation service providers.

     Air navigation services for users of the airspace of the Republic of Kazakhstan are provided on the basis of contracts. Air navigation services provided to users of the airspace of the Republic of Kazakhstan are provided free of charge in cases of flight operations.:

     1) aircraft in distress or in distress, as well as aircraft whose routes have been changed due to an emergency on board, failure or malfunction of the equipment, from the moment the aircraft's location is determined;

     2) aircraft for conducting search and rescue operations, as well as aircraft involved in search and rescue exercises in accordance with an agreement concluded with an air navigation service provider;

     3) aircraft for providing medical and (or) humanitarian assistance to the population in case of natural disasters;

     4) aircraft of the state aviation of the Republic of Kazakhstan;

     5) aircraft carrying the President of the Republic of Kazakhstan, the Prime Minister of the Republic of Kazakhstan, royalty, heads of state and governments of foreign states;

     6) Light and ultralight aircraft;

     7) in accordance with international treaties ratified by the Republic of Kazakhstan, if the provisions of the treaty provide for exemption from air traffic maintenance fees.

     The subjects of the offense are legal entities in the form of small and medium-sized large businesses that are brought to administrative responsibility in accordance with Article 33 of the Administrative Code.

     The subjective side of the commented article can be expressed both in the form of direct intent and carelessness.

     Authorized officials of the civil aviation authority have the right to initiate proceedings under the commented article and impose administrative penalties (Part 3 of Article 691 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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