Commentary to article 62. Exemption from administrative liability due to the expiration of the statute of limitations The Code of the Republic of Kazakhstan on Administrative Offences

Home / RLA / Commentary to article 62. Exemption from administrative liability due to the expiration of the statute of limitations The Code of the Republic of Kazakhstan on Administrative Offences

1. A person shall not be held administratively liable after two months from the date of committing an administrative offense, and for committing an administrative offense in the field of the environment, as well as for violating the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy – after one year from the date of its commission, except in cases provided for by this Code.

2. An individual is not subject to administrative liability for committing an administrative corruption offense, as well as offenses in the field of taxation, competition protection, customs affairs, legislation of the Republic of Kazakhstan on pension provision, compulsory social insurance, energy conservation and energy efficiency improvement, state secrets, and natural monopolies after one year from the date of his death. commits, and a legal entity (including an individual entrepreneur) is not subject to administrative liability for committing an administrative corruption offense, as well as offenses in the field of legislation of the Republic of Kazakhstan on energy conservation and energy efficiency improvement after three years from the date of its commission, and for offenses in the field of taxation, competition protection, customs, legislation of the Republic of Kazakhstan. Kazakhstan on pension provision, on compulsory social insurance, on natural monopolies – after five years from the date of its commission.

3. In the case of a continuing administrative offense, as well as in the case of an administrative offense in the field of budgetary relations that encroaches on the legally protected interests of society and the state, the person is not subject to administrative liability after two months from the date of detection of the administrative offense.

When committing an administrative offense in the field of finance, a person is subject to administrative liability no later than three years from the date of the administrative offense, but cannot be brought to administrative responsibility after two months from the date of the discovery of the administrative offense.

4. The provisions of paragraphs one and three of this article shall not apply to cases where an administrative offence has contributed to the commission of a criminal offence and this has become known during the investigation or judicial review of a criminal case. The court has the right, in accordance with the procedure provided for in the first part of Article 405 of the CPC of the Republic of Kazakhstan, to impose an administrative penalty on the person guilty of such an offense if no more than one year has passed since the commission of the administrative offense.

5. The term for imposing an administrative penalty for an administrative offense is suspended from the moment an expert examination is appointed, a ruling is issued on bringing the person in respect of whom the case is being conducted, as well as sending the case to a court or an official of a state body authorized to consider cases of administrative offenses.

The calculation of these time limits is resumed from the moment the results of the examination are received, as well as the actual delivery of the person being brought to administrative responsibility to the body (official) executing the definition of the drive.

The total duration of the drive may not exceed one month.

6. In case of termination of the criminal case, if there are signs of an administrative offense in the actions of the violator, the person may be brought to administrative responsibility no later than three months from the date of receipt of the decision to terminate it.

7. The term for imposing a penalty for an administrative offense is interrupted if, before the expiration of the terms specified in parts one and three of this article, the person commits a new administrative offense. The calculation of the time limit in these cases begins from the moment of the discovery of a new administrative offense.

8. The decision of a judge or an authorized body to terminate administrative proceedings, regardless of the time period provided for in part one of this Article, may be reviewed upon the proposal of the Chairman of the Supreme Court, the Chairman of the specialized judicial board of the Supreme Court, or the protest of the prosecutor filed within one year from the date of its entry into force.

Note. A continuing offense is recognized, which is characterized by the continuous implementation of a single composition of a certain act provided for in article The special part of this section, and has not been completed by the time of its discovery.

In the system of current legislation, the statute of limitations for bringing to responsibility is, by its legal nature, an independent legal institution that differs from such institutions as procedural deadlines and the statute of limitations. The only thing that unites them is the general concept of "term". It follows from this that the statute of limitations is neither a type of procedural time limit nor a type of limitation period. In practice, it is possible to encounter a situation in which the statute of limitations for administrative liability has expired. Most often, this is due to the fact that the official or judge did not have time to make a decision on time. In this case, the offender can legitimately avoid a fine, deprivation of rights or other punishment.

Part 1 of the article in question provides the following legal grounds for the release of the offender from liability due to the expiration of the statute of limitations:

1) a person is not subject to administrative liability after two months from the date of the commission of an administrative offense;

2) a person is not subject to administrative liability after one year from the date of the commission of an administrative offense in the field of:

- environment;

- violations of legislation on rehabilitation and bankruptcy;

3) the above-mentioned terms do not apply to other cases provided for by the current Administrative Code.

In cases where the above-mentioned limitation periods have expired, the judge or an authorized official has no right to impose an administrative penalty and must issue a decision to terminate the case of an administrative offense on the grounds specified in Part 5 of Article 741 of the Administrative Code. According to the legislator, the promptness of the imposition of penalties should best contribute to the effectiveness of the penalty itself.

The courts, unlike the authorities (officials), generally correctly perceive the specified norms of the law and respond appropriately to violations of legality related to the omission of the statute of limitations. Thus, by a resolution of the Atyrau City CAC dated October 4, 2017, the administrative offense case against Mr. K.Sh. was terminated under Part 1 of Article 434 of the Administrative Code, due to the expiration of the statute of limitations.

So, on January 26, 2017, an officer of the Department of Internal Affairs, police Lieutenant G., drew up a protocol on an administrative offense against Mr. U.K. under Part 1 of Article 434 of the Administrative Code. According to the protocol, on that day, at about 4:42 p.m., in the area of the MMM shopping center in Atyrau, Mr. U.K. cracked sunflower seeds and threw the husks onto the asphalt, polluting a public place.

However, the materials were submitted to the court for consideration on the merits only on October 4, 2017. In this regard, the court, having terminated the proceedings in the case, sent a private ruling to the Department of Internal Affairs of Atyrau region. The SAS drew attention to the gross violation of the norms of the Administrative Code.

Part 2 of the commented article provides for different limitation periods for bringing to administrative responsibility, depending on the sphere of public relations and subjects of administrative responsibility.

An individual is not subject to administrative liability after one year from the date of committing an administrative offense in the field of:

1) anti-corruption legislation;

2) taxation and protection of competition;

3) Customs affairs;

4) legislation of the Republic of Kazakhstan on pension provision;

5) legislation on compulsory social insurance;

6) legislation on energy conservation and energy efficiency improvement;

7) legislation on state secrets;

8) legislation on natural monopolies;

9) about the subsoil and subsoil use;

10 ) on the procedure for organizing and holding peaceful assemblies.

A legal entity (including an individual entrepreneur) is not subject to administrative liability after three years from the date of committing an administrative corruption offense, as well as in the field of legislation of the Republic of Kazakhstan.:

1) on energy saving and energy efficiency improvement;

2) about the subsoil and subsoil use;

3) the procedure for organizing and holding peaceful assemblies;

4) for violation of conformity assessment procedures for technical regulation facilities.

A legal entity (including an individual entrepreneur) is not subject to administrative liability after five years from the date of the commission of an administrative offense.:

1) in the field of taxation;

2) in the field of competition protection;

3) in the field of customs;

4) in the field of pension legislation;

5) in the field of legislation on compulsory social insurance;

6) legislation on natural monopolies.

7) legislation on state secrets;

8) legislation on natural monopolies;

9) about the subsoil and subsoil use;

10 ) on the procedure for organizing and holding peaceful assemblies.

1) on energy saving and energy efficiency improvement;

2) about the subsoil and subsoil use;

3) the procedure for organizing and holding peaceful assemblies;

4) for violation of conformity assessment procedures for technical regulation facilities.

A legal entity (including an individual entrepreneur) is not subject to administrative liability after five years from the date of the commission of an administrative offense.:

1) in the field of taxation;

2) in the field of competition protection;

3) in the field of customs;

4) in the field of pension legislation;

5) in the field of legislation on compulsory social insurance;

6) legislation on natural monopolies.

The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 clarified some of the features of the statute of limitations established by the analyzed part of art. 62 of the Administrative Code. Paragraph 15 states that "The limitation period for the imposition of administrative penalties for administrative offenses in the field of taxation is provided for in the second part of Article 62 of the Administrative Code. It is not allowed to calculate the limitation period for the imposition of administrative penalties for such offenses in accordance with the third part of Article 62 of the Administrative Code."

Part 3 of the analyzed article establishes a two-month period from the date of detection of an administrative offense, after which it is impossible to bring to administrative responsibility if:

1) a continuing administrative offense;

2) when committing an administrative offense in the field of budgetary relations that encroaches on the legally protected interests of society and the state.

The second paragraph of the same part provides for the limitation period for bringing to administrative responsibility in the field of finance from the date of the commission of an administrative offense – 3 years, as well as from the date of the discovery of an administrative offense – 2 months.

The concept of a continuing administrative offense is given in the note of art. 62 of the Administrative Code. Budgetary relations are regulated by the Budget Code of the Republic of Kazakhstan dated December 4, 2008 No. 95. This Code regulates budgetary and inter-budgetary relations, establishes the main provisions, principles and mechanisms for the functioning of the budgetary system, education and the use of budgetary funds, as well as issues related to the formation and use of the National Fund of the Republic of Kazakhstan.

Part 4 of the article under study regulates some features of the application of the provisions of parts 1 and 3 of art. 62 of the Administrative Code. Firstly, if during the investigation or judicial review of a criminal case it became known that an administrative offense contributed to the criminal offense, the provisions of parts 1 and 3 of art. 62 do not apply. Secondly, the court has the right to impose a penalty on a person guilty of such an administrative offense in accordance with the procedure provided for in Part 1 of Article 405 of the CPC. Third, apply part 1 of art. 405 of the CPC is possible only on condition that no more than one year has passed since the commission of an administrative offense.

405 of the CPC states that the court, if there are grounds for it, issues a private decision in the conference room, which draws the attention of state bodies or officials, organizations or their leaders to the facts of violation of the law established in the case, the causes and conditions that contributed to the commission of a criminal offense and require appropriate measures. If a person's actions are found to be an administrative offense contributing to the commission of a criminal offense, the court has the right to impose a penalty on him provided for in the Administrative Code.

The specifics of making a private resolution are explained by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 11. In accordance with Part 1 of Article 405 of the CPC, private decisions must be made in a conference room and only in the case that is being considered directly in court, and it may not contain information and facts from another case. The operative part of the resolution should specify the time and procedure for its appeal and appeal. Upon returning from the consultation room, the text of the private decision is announced by the court in full, which must be indicated in the minutes of the main trial, if it is made on paper. If the text of a private resolution is large, the chairman has the right to announce only the introductory and operative parts of the resolution.

Part 5 of the commented article establishes cases of suspension and renewal of the limitation period for the imposition of an administrative penalty for an administrative offense.

The term for imposing an administrative penalty for an administrative offense is suspended from the moment:

1) appointment of an expert examination;

2) issuing a ruling on the summoning of the person in respect of whom the proceedings are being conducted;

3) referral of the case to a court or an official of a state body authorized to consider cases of administrative offenses.

The calculation of these terms is resumed from the moment:

1) obtaining the results of the examination;

2) the actual delivery of the person being brought to administrative responsibility to the body (official) executing the definition of the drive.

When suspending the limitation period due to the issuance of a ruling on the drive, it should be borne in mind that the total period of the drive may not exceed one month.

Paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 clarifies the specifics of calculating the limitation period according to the commented norm. The term for imposing an administrative penalty for an administrative offense in accordance with Part 5 of Article 62 of the Administrative Code is suspended from the moment the case is sent to judicial authorities or to an official of a state body authorized to consider cases of administrative offenses. This provision also applies to cases where the case of an administrative offense is not referred for consideration to another State body under its jurisdiction. The beginning of the suspension of the limitation period is determined by the date of the actual referral of the case to the court or to an official for consideration on the merits (the date of delivery to the post office, receipt by courier, the date of registration in the register of relevant correspondence, etc.).

When an expert examination is appointed by the body in charge of the administrative offense case, the term for imposing an administrative penalty is suspended from the date of the actual appointment of the expert examination. When an expert examination is appointed by the court, the duration of the proceedings is suspended.

Previously, the term for imposing an administrative penalty was also renewed upon receipt of an administrative offense case by a court or an official of a state body authorized to consider it, in accordance with Chapter 36 of the Administrative Code. Often, in practice, courts and authorities (officials) did not have time to consider such cases on their merits, since most of the statute of limitations (2 months) had already expired. If the courts, authorities (officials) still had time to consider it, there was still a "backlash" for abuse by appealing the relevant decision. Accordingly, the appeal should have dismissed such a case.

For example, due to the expiration of the two-month period for bringing to administrative responsibility, the case under part 3 of Article 610 of the Administrative Code against Mr. N.S. was terminated.

On August 24, 2017, Mr. N.S. committed an administrative offense. The material about this was sent by the Department of Internal Affairs of the city of Kyzylorda to the regional Department of Internal Affairs on February 24, 2018. The administrative police of the Department of Internal Affairs of the Kyzylorda region drew up a protocol on an administrative offense only on March 7, 2018 and sent it to the court for consideration.

Another example. By a resolution of the Petropavlovsk City CAC dated March 6, 2017, the proceedings against Mr. D.R. under Part 1 of Article 608 of the Administrative Code were terminated due to the expiration of the statute of limitations for administrative liability.

It was established that on September 17, 2016, at about 19:45 in the city of Petropavlovsk on Zh. gr. D.R. Street, without the right to drive vehicles, he was driving a car of the "C" brand, Mr. 00 AA 15. According to the conclusion of medical examination No. XXX, he was in a state of mild intoxication.

The protocol on the administrative offense was drawn up on September 17, 2016. However, the case was sent to court only on March 6, 2017, after five months from the date of the offense.

Meanwhile, in accordance with Article 808 of the Administrative Code, the protocol on an administrative offense, the responsibility for which may entail the application of administrative arrest, is sent to the judge immediately after it is drawn up.

However, this requirement of the law was not fulfilled by the police battalion of the highway patrol police, gr. V.I., which led to the omission of the statute of limitations for bringing gr. D.R. to administrative responsibility under Part 6 of art. 608 of the Administrative Code. In this connection, the court issued a private decision to the Department of Internal Affairs of the region.

The protocol on the administrative offense was drawn up on September 17, 2016. However, the case was sent to court only on March 6, 2017, after five months from the date of the offense.

At the same time, the Law of the Republic of Kazakhstan dated December 30, 2019 No. 300-VI "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses" excluded the words "cases of an administrative offense by a court or an official of a state body authorized to consider it in accordance with this Code" from the second paragraph of part 5 of this article. Whether the changes made are sufficient and necessary from the point of view of the interests of the participants in the administrative proceedings is not an idle question and requires separate study and discussion.

Part 6 of the article in question defines the limitation period for bringing to administrative responsibility in the event of termination of a criminal case if there are signs of an administrative offense in the actions of the violator. In this case, the person may be brought to administrative responsibility no later than three months from the date of receipt of the decision to terminate it.

Paragraph 17 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 clarifies the specifics of calculating the limitation period according to the commented norm. 62 of the Administrative Code provides that in the event of termination of a criminal case, if there are signs of an administrative offense in the actions of the violator, the person may be brought to administrative responsibility no later than three months from the date of receipt of the decision to terminate it.

This period for the imposition of an administrative penalty is calculated from the date of receipt of the decision to terminate the criminal case by the state body authorized to initiate proceedings on an administrative offense.

In judicial practice, there is often a violation of this deadline. So, for example, by the decree of the CAS of the city of Semey, East Kazakhstan region, dated December 22, 2016, the case against gr. Zh.A. under Part 1 of art. 610 of the Administrative Code was terminated due to the expiration of the statute of limitations.

Having annulled the said judicial act, the court of appeal, in a decision dated February 8, 2017, indicated that the case contained a decision dated November 19, 2016 to terminate the criminal case against gr. Zh.A. under Part 2 of art. 345 of the Criminal Code. A copy of this resolution was sent to the Administrative Police Department of the Department of Internal Affairs of the city of Semey to bring gr. Zh.A. to administrative responsibility under Article 610 of the Administrative Code. In accordance with Part 6 of art . 62 of the Administrative Code, in the event of termination of a criminal case, if there are signs of an administrative offense in the actions of the violator, the person may be brought to administrative responsibility no later than three months from the date of receipt of the decision to terminate it. From the moment of termination of the criminal case against gr. Zh.A. until the consideration of the administrative case by the court, the three-month period for bringing to administrative responsibility has not expired.

Part 7 of the article under study regulates the procedure for determining the statute of limitations if the person being held administratively liable commits a new administrative offense. In such cases, the time limits for imposing penalties for an administrative offense are interrupted, and the new limitation period for administrative liability should be calculated from the moment a new administrative offense is discovered.

In this case, administrative responsibility should be brought in accordance with the procedure provided for in Part 1 of Article 58 of the Administrative Code. If one person commits two or more administrative offenses, an administrative penalty is imposed for each offense separately.

Part 8 of the commented article establishes the legal grounds and the deadline for reviewing the decision of a judge or an authorized body to terminate administrative proceedings, regardless of the period provided for in Part 1 of Article 62 of the Administrative Code, may be reviewed upon the proposal of the Chairman of the Supreme Court, the Chairman of the specialized judicial board of the Supreme Court, upon the protest of the prosecutor within one year from the date of its entry into force the power.

Paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 clarifies the specifics of the termination of an administrative case due to the expiration of the statute of limitations. Upon termination of proceedings in an administrative offense case due to the expiration of the limitation period for bringing to administrative responsibility (subclause 5) of Part 1 of Article 741 of the Administrative Code), the courts, by virtue of subclause 6) of Part 1 of Article 822 of the Administrative Code, should indicate in the decision all the circumstances established during the consideration of the case, as well as conclusions about guilt or innocence. persons in the commission of an offense. These circumstances are important in resolving the issue of compensation for damage caused by an offense, and by virtue of Part 5 of Article 76 of the CPC, they are not proven again when considering the case of the civil consequences of the same offense committed by this person.

Circumstances recognized by the court as generally known do not need to be proved. Circumstances that are not included in the subject of evidence in a case due to their widespread popularity in a certain territory, including the court and the persons involved in the case, are generally recognized as well-known.

The note to the article in question gives the concept of continuing offenses. Such offenses are characterized by the continuous implementation of a single composition of a certain act provided for in the article of the Special Part of this section, and has not been completed by the time of its discovery.

In case of a continuing administrative offense, the statute of limitations begins to be calculated from the date of detection of the administrative offense.

A controversial issue in the practice of applying the Administrative Code remains the issue of classifying certain offenses as continuing. The root cause of such disagreements is rooted in the absence in the Code of a specific list of structures that can be classified as continuing administrative offenses. It should be noted that the incorrect attribution of "simple" administrative offenses to the number of continuing ones may lead to unjustified administrative liability. In turn, recognizing a continuing offense as "simple" may lead to the fact that the actions (inaction) of the perpetrator will not receive an appropriate legal assessment. Ultimately, in both cases, the tasks provided for in Article 6 of the Administrative Code will not be properly solved.

In a general sense, a continuing offense is an action or omission involving subsequent prolonged failure to fulfill the duties imposed on the perpetrator by law under threat of administrative punishment, ending as a result of the action of the person himself aimed at ending the offense, or the occurrence of events preventing its commission, or when the obligation itself disappears, the failure to fulfill which constituted the content of the offense.

Thus, a continuing offense is characterized by the beginning of its implementation – from the moment when the person violated the law, and the actual end of its commission – when the person himself stopped committing it or the offense was suppressed. At the same time, throughout (from beginning to end) the ongoing offense is legally completed, which determines the possibility of bringing a person to justice. That is, from the moment the commission of an unlawful act begins, the ongoing offense is legally completed, but the act continues to be carried out further, until its actual termination. For non-continuing offenses, the moment of the beginning of the commission of an unlawful act coincides with the moment of the legal end of the offense and the moment of the actual end of the offense.

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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