Imposition of an administrative penalty when imposing a penalty on an offender, the authorized body and the courts incorrectly determined the amount of the fine
The Department of public health of Aktobe city (hereinafter referred to as the Department) conducted an inspection of the state municipal state enterprise " preschool organization "Balbulak" No. 35" (hereinafter referred to as The Kindergarten). In this kindergarten, the number of children was 190, and the capacity of the kindergarten was indicated as 150 places, that is, the Department concluded that it did not comply with sanitary standards, and by the resolution of May 17, 2019, the head of the kindergarten recognized M. guilty by the first part of Article 425 of the Code of administrative offenses (hereinafter referred to as the Administrative Code) and fined him in the amount of 230 MCI-580,750 tenge. By the resolution of the specialized administrative court of Aktobe city of Aktobe region dated July 18, 2019, the resolution of the Department was left unchanged. By the resolution of the Aktobe Regional Court dated August 8, 2019, the decision of the court of first instance was left unchanged. In the protest of the Deputy Prosecutor General, M.'s actions did not contain an offense, since the completeness and increase in the number of children was a consequence of the actions of the mayor's Office of the city and the Department of Education, indicating the need to violate the resolutions.
Imposition of an administrative penalty when imposing a penalty on an offender, the authorized body and the courts incorrectly determined the amount of the fine
The board supported the protest by M. and the prosecutor, listened to the opinions of the authorized body on the cancellation of the resolution, studied the case documents, discussed the reasons for the protest, considered that the resolution is subject to change. According to the case documents, by the resolution of the mayor of Aktobe dated October 22, 2012, the state municipal state enterprise " preschool organization "Balbulak" No. 35" was established. The design capacity of the kindergarten is set at 150 places. In this regard, the Department of public health of Aktobe city conducted an inspection and concluded that the number of children in the kindergarten is 190, and the capacity of the kindergarten is 150 places, that is, it does not meet sanitary standards. In this regard, the head of the kindergarten M. was subjected to an administrative penalty with the first part of Article 425 of the Administrative Code. According to annexes 2 and 4 of the sanitary rules of the Minister of health of the Republic of Kazakhstan dated August 17, 2017 No. 615" sanitary and epidemiological requirements for preschool organizations and infant homes", the size of the game room should be at least 2.0 m2 per 1 child for children and preschool groups, there should be no more than 25 children in one group. During the inspection of the kindergarten, it was found that the specified sanitary requirements were violated. The fact of this violation is not disputed in the protest. The law of the Republic of Kazakhstan dated July 27, 2007" on education " (hereinafter referred to as – In accordance with paragraphs 1, 2, 6 of Article 48 of the law), educational organizations ensure the implementation of the necessary measures to prevent illness, strengthen the health of students, pupils, improve their physical health, form a healthy lifestyle, the academic load, the mode of classes are determined by the rules approved by educational organizations developed on the basis of State mandatory educational standards, sanitary and epidemiological rules and norms, curricula and recommendations of Health and education authorities.
Responsibility for creating healthy and safe conditions for training, upbringing, work and rest in educational organizations lies with their leaders. At the same time, similar requirements are specified in the approved job responsibilities of the head of the kindergarten. "I don't know," he said. That is, the responsibility for the placement and provision of children in the kindergarten according to the capacity norm in accordance with sanitary and epidemiological rules is assigned to the head. According to the answers of the representative of the Department of Education M. each year submits an indicative plan for how many children will be admitted to the kindergarten, since 2018, the admission of children is carried out in electronic form, the Department of Education does not participate in it. In such a situation, the decisions made by M. guilty under the first part of Article 425 of the Icbtc are in accordance with the law. In accordance with Article 30 of the administrative code, an official is brought to administrative responsibility in case of committing an administrative offense in connection with non-performance or improper performance of his official duties. M. In case of non-compliance of the capacity of children in kindergarten with sanitary standards, it was necessary to take appropriate measures to refuse to accept children. But the case documents do not identify evidence on this issue. Therefore, there is no reason to satisfy the prosecutor's protest. At the same time, the law was incorrectly applied by the authorized body and the courts when imposing penalties. According to the third part of Article 40 of the administrative code, an administrative penalty does not aim to inflict physical suffering or insult human dignity on a person who has committed an offense. The salary of the head of the kindergarten does not exceed 94,344 tenge, and the amount of the fine imposed is 6 times higher than his salary, so the amount of the fine imposed on him harms the maintenance of the family. The circumstances aggravating the liability of M. are not established. Therefore, the board considers that on the grounds specified in the second part of Article 819 of the Administrative Code, it is possible to reduce the amount of the administrative fine by no more than thirty percent. Based on the above, the specialized Judicial Board of the Supreme Court of the Republic of Kazakhstan changed the local judicial acts against M. and reduced the fine in respect of him under the first part of Article 425 of the Administrative Code to 406,525 (four hundred and six thousand five hundred and twenty-five) tenge. The protest of the Deputy Prosecutor General of the Republic of Kazakhstan was dismissed.
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