Commentary to article 64-1. Exemption from administrative liability in case of minor offense The Code of the Republic of Kazakhstan on Administrative Offences
If the committed administrative offense is insignificant, the judge, the body (official) authorized to consider cases of administrative offenses, may release the person who committed the administrative offense from administrative responsibility, limiting himself to an oral remark.
Note. When deciding whether to release a person from administrative responsibility on the grounds specified in this article, the specific circumstances of the commission of an administrative offense, including the identity of the offender, as well as the object of the encroachment, and if there is harm, its size, are taken into account.
The article provides for the possibility of exemption from administrative liability of the violator, in case of insignificance of the committed administrative offense.
The commented article appeared in the Administrative Code relatively recently within the framework of the Law of the Republic of Kazakhstan dated December 28, 2017 "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses". However, this institution is not new for administrative and tort legislation, a similar provision was previously contained in the Administrative Code of 2001.
We believe that the restoration of this institution by the legislator is correct, since some offenses are indeed minor, do not pose great public harm and do not cause any significant damage to state or public interests or directly to citizens and legal entities.
In practice, situations often arose when an action or omission, which, although formally containing signs of an administrative offense, but taking into account the nature of the offense and the role of the offender, the amount of harm and the severity of the consequences, did not represent a significant violation of protected public relations. For example, art. 165 of the Administrative Code for violation of the procedure for the sale of electric energy, a legal entity is held administratively liable in the amount of 10% of the income (revenue) received as a result of an administrative offense. However, the calculation of the amount of payment according to the established tariff is carried out by the operator (human), who may make a mistake in relation to some consumers due to the human factor when calculating the payment.
In such cases, bringing a legal entity to justice would be unfair and inappropriate, since not all consumers are targeted, but only certain units. Such an administrative offense case, in fact, can be terminated due to the insignificance of the offense if an unjustified charge occurred only in respect of one subscriber for an insignificant amount due to a human oversight.
Circumstances such as, for example, the financial status of the person being held accountable, the voluntary elimination of the consequences of offenses, and compensation for damage caused should not be circumstances that characterize the insignificance of the offense. These circumstances are taken into account when imposing an administrative penalty.
The insignificance of an act is not a property of any one side of the offense. This is a property of all sides of the offense. That is, it is an action or omission, although formally containing signs of an administrative offense, but taking into account the nature of the offense and the role of the offender, the amount of harm and the severity of the consequences that do not represent a significant violation of protected public relations. Thus, discretion should be based on taking into account both objective and subjective elements of the offense: the circumstances of the offense, an assessment of its consequences, if there is an amount of harm, including the identity of the offender and the object of the encroachment. Only after assessing the totality of these circumstances, the court, authorized bodies (officials) can decide to release from liability.
Based on the norm, the court, the body (official) authorized to consider the case of an administrative offense, is given the opportunity, at its discretion, if the offense is insignificant, to release the person who committed it from administrative responsibility and limit himself to an oral remark. Accordingly, it is not within the competence of the person making up the protocol, that is, a patrolman or other unauthorized person, to make a decision regarding the release of a person from responsibility. In accordance with this article, this right is granted only to the court, the body (official) who has the right to consider such a case. Their list is defined by Chapter 36 of the Administrative Code.
At the same time, the legislator did not limit the law enforcement officer within the framework of art. 64-1 to a specific object of encroachment. Therefore, insignificance, as the basis for the release of a person who has committed an administrative offense from administrative responsibility, is appropriate for all types of administrative offenses, including in the field of road safety.
Despite the fact that such an oral remark is made as a result of the commission of an offense, it cannot be identified with a warning as a measure of administrative punishment.
An oral remark does not apply to punishments and does not entail adverse legal consequences. This is a measure of moral impact. Whereas a warning, being the main administrative penalty, is issued in writing. As a result, the offender has the opportunity to evaluate a humane gesture on the part of the court, authorized bodies (officials) and subsequently make efforts to prevent such offenses from infringing on public order to a certain extent.
If a decision is made to declare an oral comment to a person, a decision is made to terminate the proceedings in this case.
According to the note of the commented article, when deciding whether to release a person from administrative responsibility on the grounds specified in this article, the specific circumstances of the commission of an administrative offense are taken into account, including the identity of the offender, as well as the object of the encroachment, and if there is harm, its size.
By the resolution of the SMAS of the city of Karaganda dated January 26, 2018, the proceedings in the case of an administrative offense against gr. E.I. under Part 1 of Article 274 of the Administrative Code were terminated due to the insignificance of the administrative offense. The Court limited itself to an oral remark.
It can be seen from the case materials that on January 11, 2018, an administrative offense case was initiated against gr. E.I., who is the spouse of a person who held a government position in the past, under Part 1 of Article 274 of the Administrative Code for violating financial control measures, which resulted in the failure to submit a declaration of income, property and other information about income, property which are subject to taxation for 2016, by March 31, 2017.
Citizen E.I. testified that she did not know that after her husband's dismissal from public service, she had to submit a declaration. She received the notification in mid-April 2017, when her husband was on a business trip. Since she is on maternity leave to care for a young child, she could not submit a declaration and was waiting for her spouse.
There are also opposite examples where the recognition of insignificance is controversial. The SAS of the city of Uralsk, West Kazakhstan Region, by a decree dated April 5, 2018, terminated the administrative case under Article 185 of the Administrative Code against the State Institution "Byvaly", for the insignificance of the offense.
According to the case file, administrative proceedings were initiated for the disclosure by the regional branch of the specified organization of information on the movement of funds on the debtor's accounts prior to the commencement of enforcement proceedings.
So, on December 6, 2016, they received a resolution from a private bailiff dated November 29, 2016 on providing information on the availability and numbers of settlement accounts in respect of gr. T.N. on the basis of enforcement proceedings No. 1558, initiated on November 9, 2016, to recover from her in favor of gr. V.V. debts in the amount of 1,151,061 tenge.
On December 7, 2016, the State Department sent a response to a private bailiff in pursuance of his decision on the available accounts of gr. T.N. with an attached statement of cash flow on the accounts for the period from January 1 to December 7, 2016. Meanwhile, due to the requirements of paragraph h) of Part 7 of art. 50 of the Law of the Republic of Kazakhstan dated August 31, 1995 "On Banks and banking activities", certificates on the availability and numbers of bank accounts of an individual, on the balances and movement of money in these accounts are issued to private bailiffs: in cases of enforcement proceedings under their jurisdiction on the basis of a resolution of the executor, certified with a personal seal and authorized, only in parts of the information about the availability and numbers of bank accounts of an individual debtor, about the availability of money in these accounts within the recoverable amount, and in case of insufficient money - also about the movement of money in these accounts since the initiation of enforcement proceedings and the presence of safe deposit boxes.
Citizen T.N. explained that as a result of the disclosure by the State Department of information about her existing bank accounts, they became known to the recoverer, Mr. V.V. He is currently initiating criminal proceedings against her for concealing income and refusing to voluntarily pay the debt before the initiation of enforcement proceedings.
The Court pointed out that Ms. T.N. had not provided evidence of significant harm to her or the occurrence of negative consequences for her by disclosing banking information.
What was meant by this basis, whether the information disclosed by the bank is confidential or not, how and why its disclosure does not violate the rights and legitimate interests of gr. T.N., the court did not reflect in the judicial act.
In this regard, we believe that the Supreme Court of the Republic of Kazakhstan has yet to work out the rules and conditions for the application of Articles 64-1 of the Administrative Code through an appropriate regulatory resolution.
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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