Commentary to article 63. Exemption from administrative responsibility and administrative penalty on the basis of an amnesty act The Code of the Republic of Kazakhstan on Administrative Offences
1. A person who has committed an administrative offense may be released from administrative responsibility or an administrative penalty imposed on the basis of an amnesty act if the said act eliminates the application of an administrative penalty.
2. The amnesty Act is issued by the Parliament of the Republic of Kazakhstan in respect of an individually unspecified group of persons.
Amnesty (from the Greek. forgetfulness, forgiveness) is a measure applied by decision of a public authority (in our case, Parliament) to persons who have committed an offense, the essence of which is to be fully or partially released from punishment, to replace punishment with a more lenient one, or to terminate the case.
Since the declaration of Independence, a significant number of various amnesties have been conducted in Kazakhstan, which were the legal grounds for the release of citizens from legal responsibility, including administrative responsibility. Amnesty announcements are usually accepted in connection with the occurrence of any events or anniversaries in the state.
But the amnesties carried out mainly related only to the field of criminal justice. And only a few amnesties concerned administrative offenses. For example, the amnesty adopted by the Law of the Republic of Kazakhstan dated July 5, 2006 No. 157 "On Amnesty in connection with the legalization of property" provided for the procedure for exemption from legal liability and punishment for certain criminal offenses, administrative offenses and even disciplinary offenses.
Part 1 of the article in question is the legal basis for the release of an offender from administrative responsibility or an administrative penalty imposed on the basis of an amnesty act in force at the time.
The effect of the amnesty act may vary in time and is not always determined by the Laws of the Republic of Kazakhstan. For example, the Law of the Republic of Kazakhstan dated April 2, 2001 No. 610 "On Amnesty for citizens of the Republic of Kazakhstan in connection with their money legalization" established that money legalization is only thirty calendar days during 2001, without specifying the specific time of the amnesty act. The deadline for the start of legalization was set by Presidential Decree No. 610 dated May 17, 2001 "On the beginning of the Money Legalization Period", which approved that money legalization begins on June 14, 2001 and was valid for 30 days.
The amnesty act should eliminate the application of administrative penalties by:
1) release of the offender from administrative responsibility;
2) the release of the offender from execution, imposed an administrative penalty.
Unfortunately, the Administrative Code does not clearly establish how an administrative offense case should be terminated in connection with the current amnesty act. Articles 741 and 742 of the Administrative Code do not provide for an act of amnesty as a circumstance that precludes proceedings on an administrative offense and a circumstance that makes it possible not to bring the offender to administrative responsibility.
In this regard, if an administrative offense that falls under the amnesty act is committed during the period of the amnesty act, then it should be written off as a special nomenclature case (outfit) without initiating proceedings on an administrative offense. If a case of an administrative offense has been initiated, then a decision should be issued to terminate the case with reference to the law that approved the amnesty act.
Part 2 of the commented article provides for the implementation of the constitutional powers of the Parliament of the Republic of Kazakhstan to resolve issues of amnesty. In Part 1 of Article 54 of the Constitution, it is established that the Parliament, in a separate session of the Chambers, by consistently considering issues first in the Mazhilis and then in the Senate, adopts constitutional laws and laws, including resolving issues of amnesty.
The amnesty act is adopted by the law of the Republic of Kazakhstan, which, on the basis of the Constitutional Law of the Republic of Kazakhstan dated October 16, 1995 "On the Parliament of the Republic of Kazakhstan and the Status of its Deputies", falls within the competence of the Parliament. Article 13 of this law states that "The Parliament shall adopt legislative acts binding on the entire territory of the Republic in the form of laws of the Republic of Kazakhstan, including constitutional ones, and resolutions of the Parliament."
An amnesty act is issued in relation to an individually unspecified group of people. Individuals and legal entities, as well as persons who are or have already been brought to administrative responsibility, can be released from administrative responsibility in connection with the amnesty act. The amnesty act may specify specific articles of the Administrative Code that are subject to the amnesty act, as well as list articles and other conditions when the amnesty act should not be applied.
For example, Article 8 of the Law of the Republic of Kazakhstan "On Amnesty of citizens of the Republic of Kazakhstan in connection with their money legalization" identified five specific articles of the Administrative Code, according to which citizens were released from administrative responsibility before the start of money legalization. And article 9 of the same Law established the conditions in connection with which the amnesty act is not applied. Such conditions were the existence of initiated criminal cases and administrative proceedings, for which administrative penalties had already been imposed.
Thus, in the case of an amnesty act, if such an act eliminates the application of administrative punishment, the following legal consequences occur::
1) proceedings on an administrative offense cannot be initiated.;
2) The proceedings initiated in the case of an administrative offense are terminated.;
c) The execution of the decision on the imposition of an administrative penalty is terminated.
The mechanism for terminating cases of administrative offenses is explained by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5, despite the fact that paragraph 25 of this legal act does not provide for the legal grounds for terminating cases in connection with the reconciliation of the amnesty act. The descriptive and motivational part of the decision to dismiss the case sets out:
1) the circumstances of the offense specified in the protocol on the administrative offense;
2) the circumstances that served as the basis for the termination of the case;
3) the operative part of the resolution indicates the court's decision to terminate the proceedings in the case of an administrative offense, the basis on which the decision to terminate the case was made, as well as the norm of the Special Part of the Administrative Code on which the case of an administrative offense was initiated.
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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