Grounds for termination of administrative proceedings in the case

Upon termination of the proceedings, the court, in accordance with Article 829-14 of the Administrative Code, must clearly determine on what grounds the proceedings are to be terminated. The grounds should be clearly reflected in the descriptive and motivational part of the resolution and correspond to the decision in the operative part with reference to a specific article of the Administrative Code. According to paragraph 25 of the NPVS No. 5 dated April 20, 2018 "On the court's decision in the case of an administrative offense", a decision to terminate proceedings in the case is issued in cases provided for in Articles 741, 742 of the Administrative Code, as well as in the case of transfer of case materials to the relevant authorities to resolve the issue of bringing a person to disciplinary responsibility in accordance with Articles 32, 64-1 (exemption from administrative responsibility if the offense is insignificant), 68 (exemption of minors from administrative responsibility and administrative penalties). The descriptive and motivational part of the decision to terminate the case sets out the circumstances of the offense indicated in the protocol on the administrative offense; the circumstances that served as the basis for the termination of the case. The operative part of the resolution indicates the court's decision to terminate proceedings in the case of an administrative offense, the basis on which such a decision was made, as well as the norm of the Special Part of the Administrative Code, according to which an administrative offense case was initiated. Article 741 of the Administrative Code provides for an exhaustive list of circumstances precluding proceedings on an administrative offense. According to part 2 of this article, proceedings in an administrative offense case are terminated on the grounds provided for in subparagraphs 1) and 2) of part one of this article, both if the absence of an administrative offense event or the composition of an administrative offense is proven, and if their presence is not proven, if all possibilities for collecting additional evidence have been exhausted, as well as in cases where when the harm is lawful or the act is committed under the circumstances, which, in accordance with Chapter 5 of this Code, exclude administrative liability.

 

By virtue of the requirements of Article 742 of the Administrative Code, the circumstance that makes it possible not to bring to administrative responsibility is the presence of signs of a criminally punishable act provided for by criminal law. In such cases, proceedings on an administrative offense case may be terminated in accordance with the procedure provided for by the Administrative Code in the case of transfer of the material to the prosecutor, the body of pre-trial proceedings. Chapter 8 of the Administrative Code provides for an exhaustive list of grounds for exemption from administrative liability and administrative penalties: - exemption from administrative liability due to the expiration of the statute of limitations; - exemption from administrative responsibility and administrative penalty on the basis of an act of amnesty; - exemption from administrative responsibility in connection with the reconciliation of the parties; - exemption from administrative liability for minor offenses (effective from January 9, 2018). Article 68 of Chapter 9 of the Administrative Code provides for the grounds for exemption from administrative responsibility and administrative punishment of minors in the case of an offense committed for the first time with the application of educational measures provided for by law. Such measures include: clarifying the law, imposing the obligation to compensate for the harm caused, restricting leisure time and establishing special requirements for the behavior of a minor. In accordance with Article 741 of the Administrative Code, proceedings on an administrative offense case cannot be initiated, and those initiated are subject to termination in the presence of at least one of the following circumstances: 1) absence of an administrative offense event. Thus, it follows from the protocol on an administrative offense against M. that on July 25, 2017, in the courtyard of house No. 18 on Montazhnaya Street in Almaty, during an argument, M. struck K. on the head with a mug, then, grabbing her by the hair, hit her head on the ground, causing her physical pain. By the resolution of the SMAS of Almaty dated July 26, 2017, the proceedings in the case under part 1 of Article 73-2 of the Administrative Code against M. were terminated due to the absence of an event of an offense. The reason for the termination of the proceedings was an incorrect indication in the protocol on the administrative offense of the time of its commission. It follows from the victim's statement, the explanations of the parties and medical documents that K.'s beatings were inflicted on July 19, 2017, and the event protocol states July 25, 2017. That is, the event of the offense described in the procedural document did not correspond to the actual circumstances of the case. The Court of appeal upheld the decision of the SMAS. An example of the incorrect application of the law is the case against the joint–stock company (hereinafter - JSC) "Ort Sondirushi". Thus, by the decision of the SCG of the Kostanay Regional Court of November 6, 2017, the decision of the Lisakovsky City Court to terminate proceedings on an administrative offense under part 2 of Article 410 of the Administrative Code (violation or non-fulfillment in organizations, public places, warehouses, agricultural lands, dormitories and residential buildings of fire safety requirements provided for by fire safety rules, technical regulations, building codes, national standards, committed repeatedly within a year after the imposition of an administrative penalty) in relation to JSC "O". The appeal petition of the Lisakovsk city prosecutor has been granted. The Court of Appeal found that the decision to terminate the proceedings in the case for the "absence of an administrative offense event" was made without taking into account the requirements provided for by the fire safety regulations (hereinafter referred to as the PPB). So, on July 31, 2017, at the facility of the non–governmental fire service (hereinafter - NGPS) branch of JSC "O" in the Lisakovsky branch of the Limited Liability Partnership (hereinafter – LF, LLP) "R" revealed a violation of the requirements of the PPB.

In particular, the number of NGPS main fire trucks did not comply with the provisions of paragraph 18 of the Rules for the Operation of Fire Services, approved by Order No. 782 of the Minister of Internal Affairs of the Republic of Kazakhstan dated November 7, 2014. In December 2016, LLP "R" (the Customer) and JSC "O" (the Contractor) signed a contract for the performance of works and the provision of fire protection services for the facilities of LLP "O", as well as mining and gas rescue operations. According to the contract on public procurement of services, the responsibility for compliance with fire safety requirements in full lies with the Provider of these services. Due to the requirements of paragraph 11 of these Rules, the NGPS is kept in constant (round-the-clock) readiness. The court based the judicial act on the unverified arguments of JSC "O" about the obligation of the "Customer" to calculate the number of main fire trucks and the number of personnel in accordance with paragraph 41 of the Technical Regulations "General Requirements for Fire safety", approved by the Decree of the Government of the Republic of Kazakhstan (hereinafter – PPRK) dated January 16, 2009 for No. 14, necessary to extinguish a fire at any of the protected facilities. However, the court did not take into account that this duty is imposed only before the conclusion of an agreement with NGPS organizations. Thus, the termination of the proceedings in the case was unlawful and resulted in the unlawful termination of administrative proceedings against JSC "O"; 1) the absence of an administrative offense. By virtue of Article 2 of the Administrative Code, the basis of administrative responsibility is the commission of an act containing all the elements of an offense provided for in the Special Part of this Code. In accordance with Article 765 of the Administrative Code, the existence of an administrative offense event and the guilt of an individual in committing an administrative offense are subject to proof. Contrary to the law, officials usually attach as evidence only a protocol on an administrative offense, which is not always correctly drawn up, without appropriate evidence. Thus, by a decision of the Panfilovsky District Court of the Almaty region dated January 25, 2018, the case against JSC National Company K (hereinafter referred to as NC KTZ) was terminated under part 1 of Article 149 of the Administrative Code due to the absence of elements of an administrative offense in its actions. In court, JSC NC KTZ indicated that the protocol on the administrative offense was drawn up with violations. The order itself was issued on January 17, 2018, according to which the JSC was given a deadline to eliminate deficiencies within 30 calendar days from the date of its delivery, that is, until February 17, 2018. This deadline has not expired yet. In this regard, the JSC requested that the case be dismissed for lack of evidence of an offense. Senior police Lieutenant A. Lininyi ATC at the Almaty-1 station explained in court that the protocol on an administrative offense was drawn up in accordance with the requirements of the Administrative Code. It was not possible to deliver the protocol to the offender in a timely manner due to the non-appearance of the representative of the joint-stock company, despite the notifications sent. The Court concluded that the protocol was drawn up prematurely by the official. At the time of drawing up the protocol, there was no corpus delicti imputed to JSC NC KTZ. By the resolution of the SAS of Petropavlovsk of the North Kazakhstan region (hereinafter referred to as the North Kazakhstan region) dated April 5, 2018, proceedings against I. under part 1 of Article 78 of the Administrative Code at the request of Z. The restoration of violated rights was terminated due to the absence of elements of an administrative offense in his actions. In a statement dated April 2, 2018, Z. He asked to bring the director of LLP "G" I. to administrative responsibility for failure to provide Order No. 19-II dated January 31, 2013, with information on the amount of liquefied gas consumed by residents of house No. 10 on Internatsionalnaya St. in July 2017 and January 2018, methods for calculating conversion coefficients of volume indicators of meters in bulk for gas. In accordance with subparagraph 4) Part 1 of Article 807 of the Administrative Code, the protocol on an administrative offense under Article 78 of the Administrative Code was not drawn up.

It was established at the court session that the information was provided to the Applicant in full on time. The director of LLP "G" I. is not the subject of the offense in question, since he does not perform the functions of a government representative and does not perform organizational, administrative or economic functions in government agencies, quasi-public sector entities, and local governments. According to the note to Article 30 of the Administrative Code, "officials" are persons who permanently, temporarily, or under special authority perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative, or economic functions in state institutions, quasi-public sector entities, and local governments. In the court's opinion, the functions performed by I. do not fall under the above definition. It should be noted that Z. He referred to paragraph 2 of the NPA No. 18 dated November 26, 2004 "On certain issues of the Application of Legislation on administrative offenses by Courts" (with amendments and additions as of June 29, 2011), which stated that the heads of a legal entity, as well as employees of an individual entrepreneur and a legal entity (hereinafter referred to as sole proprietors, law firms) those who perform organizational and administrative or administrative and economic functions, in case of committing an administrative offense in connection with the performance of these functions, bear administrative responsibility as officials.

 

However, this NSAID became invalid on January 21, 2015 in accordance with paragraph 2 of the NSAID dated December 24, 2014 No. 3. By the Decree of the Aktobe City CAC dated September 13, 2017, the proceedings against D. were terminated under part 1 of Article 73 of the Administrative Code for the absence of elements of an offense in his actions. This provision provides for liability for offenses that do not involve violence, causing physical suffering and harm to health. During the examination of the case, it was established that D. had beaten his wife Zh. at home on the night of September 4, causing her minor harm to her health. In this case, his actions should have been qualified under part 1 of Article 73-1 of the Administrative Code, the sanction of which provides for a more severe administrative penalty. However, the court does not have the right, on its own initiative, to change the essence of the administrative offense set out in the protocol (Chapter 44-1, including Article 329-14 of the Administrative Code, Part 4 of which allows courts to change the qualification of the offense to an article providing for a less severe administrative penalty, was introduced later by the Law of the Republic of Kazakhstan (hereinafter – SAM) dated December 28, 2017 No. 127-VI). The proceedings terminated the case due to the absence of elements of an offense in D.'s actions, provided for in part 1 of Article 73 of the Administrative Code. Similarly, on November 27, 2017, the Administrative Court of the city of Pavlodar, having considered the case against I. under part 2 of Article 611 of the Administrative Code, terminated the proceedings on the basis of subparagraph 2) of part 1 of Article 741 of the Administrative Code. On October 29, 2017, at about 9 p.m. in the city of Pavlodar, I., driving a Vaz 21703-124-01 car, Mr. 050 EVA 14, did not choose a safe speed and collided with a Skoda Rapid car, Mr. 346 KFA 14, driven by S. at the intersection of Kamzin and Tolstoy Streets. Then he disappeared from the scene of the accident. As a result, vehicles were damaged and material damage was caused to the victim S. Earlier, on September 3, 2014, under part 4 of Article 471 of the Administrative Code, I. was deprived of the right to drive a vehicle until September 3, 2017. According to the Department of the Administrative Department of the Department of Internal Affairs of the Pavlodar region, I. after the end of the period of deprivation of the right to drive a vehicle, he did not apply to a specialized public service center to take an exam on traffic regulations in accordance with the Air Defense System "On Traffic". In accordance with paragraph 24 of the NPVS dated October 6, 2017 No. 7 "On certain issues of the application by courts of the norms of the Special Part of the Code of the Republic of Kazakhstan on Administrative Offenses", if the driver, after executing an administrative penalty in the form of deprivation of the right to drive a vehicle, has not received a driver's license again in accordance with the established procedure, then in order to determine administrative or criminal liability for the commission of homogeneous offenses should be considered as a driver who does not have such a right.

I.'s actions should have been qualified under Part 3 of Article 611 of the Administrative Code, which provides for stricter administrative penalties; 3) repeal of the law or its individual provisions establishing administrative liability. On July 3, 2017, a protocol was drawn up against B. that on that day in the city of Karaganda, when the vehicle was stopped by police officers, he left the salon without their permission. That is, he violated the requirements of subparagraph 1) of paragraph 4.1 of the "Rules of the Road, the Basic provisions for the admission of vehicles to operation, the list of operational and special services, the transport of which is to be equipped with special light and sound signals and painted according to special color schemes" (hereinafter – SDA), approved by the PPRK dated November 13, 2014 No. 1196. Part 12 of Article 613 of the Administrative Code (dated July 5, 2014, SAM No. 235-V) established responsibility for the driver and passengers (passenger) leaving the cabin (cabin) of the vehicle in the event of it being stopped by an officer of the Department of Internal Affairs without his permission, as well as their failure to comply with the requirements to exit the cabin (cabin) of the vehicle. ZRK dated July 3, 2017 No. 83-VI "On amendments and additions to certain legislative acts of the Republic of Kazakhstan on traffic issues" from Article 613 of the Administrative Code in part 12 in paragraph 1, the words "and passengers (passenger)" and in paragraph 2 - "and passengers (passenger)" are excluded. In accordance with part 1 of Article 5 of the Administrative Code, a law that mitigates or cancels administrative liability for an administrative offense or otherwise improves the situation of a person who committed an administrative offense is retroactive, that is, it applies to an offense committed before the enactment of this law and in respect of which the decision to impose an administrative penalty has not entered into force..

 

Under such circumstances, the SMAS of the city of Karaganda reasonably terminated the proceedings against B. under part 12 of Article 613 of the Administrative Code, applying paragraph 3 of part 1 of Article 741 of the Administrative Code. By the decision of the Burabay District Court of the Akmola region dated February 8, 2018, the case under part 1 of Article 281 of the Administrative Code against LLP "B" was terminated. On August 29, 2017, for violation of paragraph 11 of the Rules for Registration, Receipt, Issuance, Accounting, Storage and Submission of Accompanying invoices (hereinafter referred to as CNN) for petroleum products, approved by Order of the Ministry of Finance of the Republic of Kazakhstan dated February 27, 2015 No. 138, a protocol on an administrative offense was drawn up against LLP under Part 1 of Article 281 of the Administrative Code. According to the protocol, in the SNN issued by the supplier of LLP "B" to the recipient of LLP "Kokshetauavtodor", the column "operation code" mistakenly states "sale to wholesalers" instead of "to the final consumer". Meanwhile, on December 28, 2017, the above-mentioned norm was amended by the Administrative Code. In particular, it was decided that until January 1, 2020, the following wording of part 1 of Article 281 of the Administrative Code is in effect: "failure to submit or late submission of accompanying invoices, declarations for petroleum products, tobacco products, as well as failure to submit or late provision of information necessary for monitoring."

 

That is, the error in the operation code is not covered by the objective side of the imputed LLP offense. By virtue of part 3 of Article 741 of the Administrative Code, LLP "B" was not subject to prosecution due to the repeal of the law or its individual provisions establishing administrative responsibility.; 4) if the law or its separate provisions establishing administrative responsibility, or other normative legal act subject to application in this case of an administrative offense, on which the qualification of the act as an administrative offense depends, is recognized by the Constitutional Council of the Republic of Kazakhstan as unconstitutional. No decisions have been made on this subitem; 5) the expiration of the limitation period for administrative liability. The Administrative Code establishes not only the types and amounts of penalties for persons who have committed administrative offenses, but also the time limits after which an individual or legal entity cannot be brought to administrative responsibility. The limitation period for bringing a person to administrative responsibility is understood as the period of time calculated from the date of commission or the day of detection of an administrative offense, and until the date of entry into force of the resolution on bringing a person to administrative responsibility. With the expiration of the limitation period for bringing a person to administrative responsibility, the public danger of an administrative offense is eliminated, and the imposition of an administrative penalty on a person becomes impractical. The beginning of the term of bringing a person to administrative responsibility is considered, as a general rule, the day of the commission of an administrative offense.

 

In accordance with Article 62 of the Administrative Code, the limitation period for bringing to administrative responsibility may not exceed two months. According to the legislator, the promptness of the imposition of penalties should best contribute to the effectiveness of the penalty itself. A person is not subject to administrative liability 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 in Article 62 of the Administrative Code. 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, natural monopolies, subsoil and subsoil use - upon the expiration of one year from the date of its commission, a legal entity (including sole proprietors) is not subject to administrative liability for committing an administrative corruption offense, offenses in the field of legislation of the Republic of Kazakhstan on energy conservation and energy efficiency improvement, as well as on subsoil and subsurface use. - after three years from the date of its commission, for offenses in the field of taxation, protection of competition, customs affairs, legislation of the Republic of Kazakhstan on pension provision, compulsory social insurance, and natural monopolies - after five years from the date of its commission.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases