Delivery of the instruction on elimination of violations and terms of preparation of administrative materials

According to paragraph 1 of Article 23-3 of the Law, if violations are detected following an inspection, an order to eliminate violations is handed over to the owner, owner, manager or other official of the UTO facility within ten working days, regardless of the form of ownership. In this case, the identified violations must be eliminated within thirty calendar days from the date of delivery (receipt) of the order (Articles 23-1, 23-2, 23-3 of the Law). However, this measure does not exclude the adoption of measures to bring the owner, owner, head or other official of the facility to administrative responsibility for failure to fulfill duties to ensure the anti-terrorist security of the facility entrusted to him. For example, on May 16, 2019, the specialized court of the city of Semey (Judge V.) considered a case of an administrative offense under part 1 of Article 149 of the Administrative Code against M., who is the director of the April trading house, a UTO facility. Proceedings in the case against M. It was terminated due to the absence of elements of an administrative offense in his actions. The Court of First instance reasoned that during the inspection and initiation of an administrative offense case by an official, violations of the Law of the Republic of Kazakhstan "On Countering Terrorism" were committed. Thus, the official did not present an act on the appointment of an inspection, an act on the results of the inspection was not sent, an order for the elimination of violations was not served, was not sent. By the decision of the court of appeal, it was established that there was an element of an administrative offense in M.'s actions. His guilt in committing the specified offense is confirmed by a video recording of the inspection process, which states that the storage period of information in the April trading house is less than 30 days in violation of paragraph 74 of the requirements for a television video surveillance system. Also, the TD does not carry out preventive measures to work out joint actions with interested government agencies and organizations to eliminate man-made threats that have arisen as a result of a committed act of terrorism. No documents were submitted by representatives of the TD to refute this argument. At the same time, the court of appeal, having found violations in the decision of the court of first instance, concluded that the proceedings should have been terminated in the court of first instance due to the expiration of the statute of limitations for involving M. to administrative responsibility. Thus, the court of appeal found that M.'s offense was committed on March 14, 2019, the administrative offense case was sent to court on April 18, 2019, the decision of the court of first instance in the case was issued on May 16, 2019, that is, at the time of the court's decision on the case, the two-month statute of limitations for bringing a person to administrative responsibility expired, established by Article 62 of the Administrative Code. However, in this case, the case was in court for about a month, and the court could consider the case without allowing the expiration of the time limit for bringing to administrative responsibility.

Delivery of the instruction on elimination of violations and terms of preparation of administrative materials

The courts also need to pay attention to the fact that some individual violations of the verification procedure (for example, failure to declare an act based on the results of the audit, failure to issue an order to eliminate violations, etc.) cannot be grounds for termination of the case due to the absence of elements of an administrative offense in the actions. According to article 156 of the Business Code of the Republic of Kazakhstan, the invalidity of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision is determined in the presence of gross violations of the requirements of the code. Part 2 of the Code lists 10 gross violations, in the presence of which the audit is declared invalid and which may be the basis for the termination of the case of an administrative offense. When considering an administrative case, the court must examine and evaluate all the evidence of the committed administrative offense, then determine whether guilt has been proven or not, and whether there is a corpus delicti. The analysis showed that the authorized bodies do not always draw up timely protocols on an administrative offense, which leads to missing the deadline for bringing the perpetrators to justice.   The deadlines for drawing up a protocol on an administrative offense are regulated by Article 806 of the Administrative Code, according to which a protocol on an administrative offense is drawn up immediately after the discovery of the fact of an administrative offense or after the completion of an appropriate audit. For example, by resolution of the SMAS of Astana, February 21, 2018, the case against the head of Nursery School No. 54 "N." I. according to part 1 of Article 149 of the Administrative Code, it was terminated, since the person is not subject to administrative liability after two months from the date of the commission of an administrative offense. At the same time, by virtue of the requirements of part 5 of the above-mentioned article, the term for imposing an administrative penalty for an administrative offense is suspended from the moment the case is referred to the courts. The term for bringing I. to administrative responsibility under part 1 of Article 149 of the Administrative Code is calculated from the moment the offense is discovered, that is, from November 23, 2017 to January 23, 2018. The case was actually sent to the court through the Judicial Office on February 13, 2018, that is, after the deadline for bringing I. to administrative responsibility. Therefore, the proceedings against I. were terminated, she was released from administrative responsibility due to the expiration of the statute of limitations. 

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