Commentary to article 60. Calculation of the terms of an administrative penalty The Code of the Republic of Kazakhstan on Administrative Offences
The term of administrative arrest is calculated in days, and the deprivation of a special right granted to an individual or legal entity, as well as the deprivation of a permit or suspension of its validity, is calculated in years, months or calendar days.
The article in question deals with certain types of administrative penalties, which are calculated in days, calendar days, months, or years.
Administrative arrest is the most severe penalty of all measures of administrative responsibility. The essence of the penalty is temporary, short-term imprisonment with the establishment of a special regime of detention and the possible use of detainees without payment for their labor in physical labor.
Administrative arrest is applied in exceptional cases for certain types of administrative offenses for up to 30 days, and in exceptional cases for up to 45 days, the legislator refers to them as a state of emergency, which is regulated by the Law of the Republic of Kazakhstan "On the State of Emergency".
Article 50 of the Administrative Code does not specify which cases can be considered exceptional. However, the grounds for arrest are contained in specific articles of the Code providing for appropriate sanctions. They are applied if, according to the circumstances of the case and taking into account the identity of the violator, other penalties provided for in the article are considered insufficient. The sanctions of the articles indicate only the upper limit of administrative arrest, and the judge himself determines the term, taking into account the identity of the offender and the nature of the illegal act.
Since the lower limit of administrative detention is not explicitly specified in the law, and its duration is calculated in days, it is assigned for a period of at least one day. When calculating the time limits associated with the use of coercive measures, when the moment of the beginning of the relevant period is the beginning of the application of the relevant measure, one day is considered equal to 24 hours.
It is also worth noting that administrative detention is included in the term of administrative arrest. This provision is very important, since it can take from several hours to a day from detention to a court ruling (in the case of nighttime detention), and the person is actually restricted in freedom. Administrative detention is calculated in hours, therefore, the mechanism for calculating the period of administrative arrest must take into account this unit of time. That is why A.S. Dugenets draws attention to the fact that "in law enforcement practice, it is not uncommon for a judge's rulings not to specify the time (hours) of the beginning of the term of serving administrative arrest, and therefore in such cases, the period of detention by police officers is usually calculated only from the moment the person is taken to a special institution." In this case, the staff of the relevant special receiver are required to independently take into account the data of the protocol of administrative detention.
Deprivation of a special right granted to an individual or legal entity, revocation of a permit or suspension of its validity are also types of administrative penalties.
Deprivation of a special right is a type of administrative penalty consisting in the temporary restriction of a citizen's legal personality for an administrative offense. This measure applies only to persons with a special administrative status.
The term of deprivation of a special right may not be less than one month or more than two years. The term of deprivation of the right to drive vehicles may not be less than six months and more than ten years. Deprivation of the right to drive vehicles may not be applied to persons who use these means due to disability, except in cases of driving in a state of intoxication, evading an examination for intoxication in accordance with the established procedure, as well as leaving the place of a traffic accident in violation of the established rules, in which they were participants..
The legislation on administrative offences stipulates that the deprivation of the right to hunt, fish, store and carry hunting weapons, ammunition for them and fishing gear cannot be applied to persons for whom hunting (fishing) is the main legitimate source of livelihood, except for a systematic violation of the order of use of this right.
The deprivation of individuals, individual entrepreneurs, private notaries, lawyers and legal entities of a license, special permit, qualification certificate (certificate) for a certain type of activity or the commission of certain actions is imposed by a judge for an administrative offense committed while carrying out activities by these persons or committing certain actions provided for by a license, special permit, qualification certificate (certificate).
The suspension of a license for a certain type of activity or the commission of certain actions or the temporary deprivation of a special permit, qualification certificate (certificate) is established for a period of up to six months.
A statement of claim for the suspension or prohibition of the activities or certain types of activities of an individual entrepreneur or a legal entity is sent to the court in accordance with the procedure and on the grounds established by legislative acts of the Republic of Kazakhstan.
An administrative penalty in the form of suspension of activities or certain types of activities of an individual entrepreneur or a legal entity is applied in cases where the violation is eliminated by carrying out the necessary actions (measures) within the time limit set by the court for their elimination.
The suspension or prohibition of the activities or certain types of activities of an individual entrepreneur or a legal entity without a court decision is allowed in exceptional cases for a period of no more than three days with the mandatory submission of a statement of claim to the court within the specified period. In this case, an act prohibiting or suspending activities or certain types of activities is valid until a court decision is rendered.
The calculation of time limits for these types of administrative penalties is carried out in years, months and days. The sanctions of the articles providing for penalties in the form of deprivation of a special right, deprivation of a permit, suspension or prohibition of activities are both relatively definite and absolutely definite, at the discretion of the person authorized to consider cases of administrative offenses and impose administrative penalties. If the administrative penalty is expressed in years, then the end of the term will be considered the day and month from which the calculation of the penalty began. If the administrative penalty is expressed in months, then the end of the term will be considered the day of the month from which the calculation of the penalty began. In a number of articles of the Administrative Code, a day is used as the unit of time. In the vast majority of cases, this measure is used as a unit identical to a day. The time period, calculated in days, is calculated according to the rules established for the day. In accordance with the commented norm, the day period is limited to the length of the day on which the relevant materials were received by the court or the authorized body.
If the last day of the term falls on a non-working day, the expiration date is the next working day following it.
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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