On judicial practice in the application of legislation on administrative supervision
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 31, 2019 No. 1.
In connection with the issues raised by the courts when considering cases on the application of the legislation of the Republic of Kazakhstan on administrative supervision, in order to ensure uniformity of judicial practice in these cases, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.
The legislation on administrative supervision is based on the Constitution of the Republic of Kazakhstan and consists of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Criminal Executive Code of the Republic of Kazakhstan (hereinafter referred to as the PEC), the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), the Law of the Republic of Kazakhstan Kazakhstan No. 28-I dated July 15, 1996 "On Administrative Supervision of persons released from places of deprivation of liberty" (hereinafter referred to as the Law) and other regulatory legal acts of the Republic of Kazakhstan.
Administrative supervision is a measure aimed at preventing the re–commission of crimes by persons released from prison who have a criminal record for certain types of crimes provided for by Law, through the establishment by the court of temporary restrictions on their rights and freedoms, the imposition of duties on them (hereinafter referred to as administrative restriction) and the monitoring by internal affairs bodies of compliance with these persons. (supervised) administrative restrictions. Administrative supervision is not a punishment for committing a criminal offense.
When deciding on the establishment of administrative supervision, the courts need to check whether a person is an entity in respect of which administrative supervision may be established in accordance with the Law.
Courts should keep in mind that the Law applies only to persons who have served a custodial sentence, while administrative supervision may be applied to foreign citizens or stateless persons provided they legally reside (stay) in the territory of the Republic of Kazakhstan.
When deciding whether acts for which a person has served a sentence relate to terrorist or extremist crimes or crimes against the sexual integrity of minors, courts should be guided by paragraphs 30), 39) and 42) of article 3 of the Criminal Code (subparagraph a) of article 2 of the Law).
When establishing administrative supervision over persons who have served sentences for committing serious and (or) especially serious crimes or who have been sentenced two or more times to imprisonment for intentional crimes, it should be borne in mind that administrative supervision is established for these persons only if they are recognized as having a third negative degree of behavior at the end of their sentence. (subparagraph b) of Article 2 of the Law).
Administrative supervision of persons who have served sentences for grave and/or especially grave crimes or who have been sentenced two or more times to imprisonment for intentional crimes, in accordance with subparagraph (b) Article 2 of the Law may be established in the combination of the following circumstances:
The person has served a sentence for crimes related to grave and (or) especially grave crimes at the time of the establishment of supervision, or has been sentenced two or more times to imprisonment for intentional crimes.;
After serving his sentence, warnings were issued against him by the internal affairs bodies.;
A person systematically violates public order, human and civil rights and legitimate interests, and commits other offenses.
The warning of a person who has served a sentence for serious and (or) especially serious crimes or has been convicted two or more times to imprisonment for intentional crimes consists in an official warning by the internal affairs body about the inadmissibility of unlawful behavior, violation of public order, the rights and legitimate interests of a person and citizen, and the commission of other offenses. The warning is issued in writing.
A systematic violation of public order, the rights and legitimate interests of a person and a citizen is the commission by a person after serving a sentence of two or more administrative offenses that infringe on personal rights, the rights of minors, public safety and public health, as well as public order and morality (subparagraph b) of Article 2 of the Law, chapters 10, 12, 24, 25 of the Administrative Code), within one year, calculated from the moment of the commission of the first administrative offense.
The commission of other offenses should be understood as the conviction of these persons for a criminal offense, for which they have been given a penalty unrelated to imprisonment and without monitoring their behavior, or the proceedings against them have been terminated on non-rehabilitating grounds.
The list of persons subject to administrative supervision established by article 2 of the Law is exhaustive and is not subject to extensive interpretation.
In this regard, administrative supervision cannot be established for persons with criminal convictions.:
decriminalized and non-criminal convictions due to changes in the criminal law;
related to the category of grave or especially grave crimes for which they have not served their sentences in places of deprivation of liberty.
Persons who have been sentenced twice to imprisonment for intentional crimes and have not served their sentences in places of deprivation of liberty, as well as those who have had their criminal records removed or expunged in accordance with the procedure established by criminal law, may not be subject to administrative supervision.
In accordance with the requirements of article 6 of the Criminal Code on the retroactive effect of a criminal law mitigating the criminality of an act, administrative supervision cannot also be established against a person who has been convicted and served a sentence for a serious crime, which was subsequently classified as a lesser crime due to a change in the criminal law.
If administrative supervision has been established, but the act for which the person was serving a sentence is subsequently decriminalized, the court, at the request of the supervised person or his lawyer, or on the recommendation of the internal affairs bodies or the prosecutor, cancels the decision to establish administrative supervision, which it issues a resolution on.
In respect of persons released from prison on parole, as well as in respect of persons to whom the unserved part of the sentence has been replaced by a more lenient type of punishment with the establishment of probation control, the establishment of administrative supervision is unacceptable.
In case of systematic violation by these persons of public order, the rights and legitimate interests of a person and a citizen, or the commission of other offenses after the expiration of the unserved part of the sentence and before the repayment or removal of a criminal record in accordance with Article 79 of the Criminal Code, administrative supervision may be established against such persons.
Administrative supervision is established only by the court by issuing a ruling in which the court must specify the specific grounds provided for in article 3 of the Law on which the person is subject to administrative supervision.
In accordance with articles 3, 4, 5 of the Law, the head of the internal affairs body has the right to apply to the court with a submission on the establishment of administrative supervision; on the extension of administrative supervision and on the addition of previously established administrative restrictions - the internal affairs body; on early termination or partial cancellation, reduction of administrative restrictions - the internal affairs body and (or) supervised His defense attorney is making a motion.
The prosecutor has the right to apply to the court with a request for early termination of administrative supervision or partial reduction of administrative restrictions to protect the rights and freedoms of the supervised person, provided that the supervised person cannot go to court himself for health reasons, age or other valid reasons.
The head of an institution of the penal enforcement system is obliged to motivate the submission on the establishment of administrative supervision over a convicted person who is to be released from this institution, and attach to it copies of the verdict, decisions of the appellate and cassation instances against the convicted person, and other materials relevant to making a lawful decision and indicating the need to establish administrative supervision, including detailed data characterizing the behavior of a convicted person while serving his sentence, as well as a resolution on the determination of the third negative degree of the convicted person's behavior.
The submission of the head of the internal affairs body on the establishment and extension of administrative supervision over a convicted person released from prison, along with data on the commission of serious and (or) especially serious crimes or conviction two or more times to imprisonment for intentional crimes, must contain information about his behavior (in particular, the characteristics of the person are attached), about his systematic violation of public order, the rights and legitimate interests of a person and a citizen, and the commission of other offenses. Copies of judicial acts, documents and materials attesting to the systematic violation of public order, human and civil rights and legitimate interests, and the commission of other offenses by convicted persons released from places of deprivation of liberty are attached to the submission.
In case of incompleteness of the collected material, insufficient motivation in presenting arguments on the establishment or extension of administrative supervision, as well as on other grounds that prevent the consideration of the submission on the establishment or extension of administrative supervision, the court returns the submission on the establishment or extension of administrative supervision to eliminate the shortcomings.
If the supervised person requests the early termination of administrative supervision or the partial lifting of the established administrative restrictions, but the submitted documents and materials are insufficient to make a legitimate and reasoned decision, the court has the right to demand the necessary evidence on its own initiative, without returning the request.
The court at the place of execution of the sentence, on the basis of a reasoned submission from the head of the institution of the penal enforcement system on the establishment of administrative supervision over a person being released from places of deprivation of liberty, issues a resolution only on the establishment of administrative supervision without specifying restrictions on the rights and freedoms of the convicted person and without imposing duties on him. Specific restrictions and duties in relation to the supervised person are established by the court on the recommendation of the internal affairs body at the place of residence upon his arrival after serving his sentence.
Courts should keep in mind that administrative supervision, being a compulsory measure, is established for a certain period stipulated by Law. In accordance with article 6 of the Law, administrative supervision is established for a period of six months to three years, and for persons who have served sentences for criminal offenses against the sexual integrity of minors - for a period of one to five years. Since the calculation of the term in the Law is determined by a period of time, the establishment of a specific period within the limits of Article 6 of the Law must be motivated in a court decision (a specific period is indicated in days, months, years, or the period until the date of repayment of the criminal record).
The period of validity of administrative supervision should be calculated from the date of entry into force of the court decision, and in the case of the establishment of administrative supervision by the court at the location of the institution of the penal system - from the moment of release from the institution of the penal system.
When discussing the issue of establishing the term of administrative supervision, the court should take into account the characteristics of the convicted person at the place of serving his sentence, his behavior at home, as well as the nature and degree of public danger of the crime (crimes) committed and other circumstances relevant to the case, which should be reflected in the reasoning part of the court decision. At the same time, the court is not bound by the grounds and arguments set out in the submission of the institution of the penal enforcement system or the internal affairs body, and has the right, at its discretion, to determine the time limit within the limits specified in article 6 of the Law.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
The term of administrative supervision is extended in cases of violation by the supervised person of the rules of administrative supervision or restrictions declared to him, as well as the commission of offenses by him each time for a period of six months, but in total for a period not exceeding two years. In respect of persons who have committed criminal offenses against the sexual integrity of minors, the term of administrative supervision is extended each time by one year.
At the same time, the extension of the term of administrative supervision for persons who have served sentences for serious and (or) especially serious crimes or who have been sentenced two or more times to imprisonment for intentional crimes (subparagraph b) of Article 2 of the Law) is possible only within the term of repayment of the criminal record.
The materials indicating the existence of grounds for their extension should be attached to the submission of the internal affairs bodies on the extension of the term of administrative supervision.
The list of grounds for extending the term of administrative supervision is exhaustive and is not subject to broad interpretation.
An offense that is a necessary condition for the extension of administrative supervision should be understood as the commission by a supervised person at least once of an administrative offense that infringes on individual rights, the rights of minors, public safety and public health, as well as public order and morality (Chapters 10, 12, 24, 25 of the Administrative Code), or the conviction of the specified person for criminal an offense for which he has been given a non-custodial sentence and without monitoring his behavior., or the proceedings against him were terminated on non-rehabilitating grounds.
The term of administrative supervision may be extended no later than the last day of its validity period.
Upon the occurrence of the conditions for the termination of administrative supervision, the employees of the internal affairs bodies carrying out administrative supervision are obliged to immediately issue a resolution on the termination of administrative supervision, which is approved by the head of the internal affairs body. Failure to issue or untimely issuance of a resolution on termination of administrative supervision does not entail its extension.
Violation of the legislation of the Republic of Kazakhstan on administrative supervision, evasion of administrative supervision after the expiration of its term, in the absence of a resolution on termination of administrative supervision, is not grounds for bringing a person to administrative responsibility under Article 480 of the Administrative Code and criminal liability under Article 431 of the Criminal Code.
When considering materials on the establishment and extension of the term of administrative supervision, the court must ensure the right to protection of the person in respect of whom these issues are being resolved, while the participation of a defender is mandatory in the cases provided for in the first part of Article 67 of the CPC.
The convicted person should also be informed of his right and the procedure for appealing a court decision on the establishment of administrative supervision and the extension of the term of administrative supervision.
When appointing a court session, the court shall notify the body or institution, the head of which has submitted a submission on the establishment or extension of administrative supervision, as well as the prosecutor, the defender of the place and time of consideration of the case on the establishment or extension of administrative supervision.
The preparatory part of the court session on the establishment and extension of administrative supervision is conducted in accordance with Chapter 43 of the CPC.
After the preparatory part of the court session, the representative of the internal affairs body sets out the contents of the submission and the materials attached to it, then the court examines the received materials and listens to the explanations and opinions of the persons who appeared at the court session.
The convicted person has the right to get acquainted with the materials submitted to the court and make copies of them before the start of the court session, and at the court session he has the right to participate in the study of all materials, speak in court, file petitions, present evidence, and express his opinion on the issue under consideration.
Based on the results of the review, the court issues a reasoned decision.
The list of restrictions prescribed by article 7 of the Law applicable to persons subject to administrative supervision is not subject to broad interpretation.
Based on the provisions of this provision of the Law, one or more administrative restrictions must be defined in a court decision on the establishment, extension of the term of administrative supervision or on the addition of previously established administrative restrictions.
The court has the right to establish other administrative restrictions not specified in the submission of the internal affairs body, but within the limits of the list provided for in Article 7 of the Law.
The choice of specific administrative restrictions cannot be arbitrary; their application should be aimed at ensuring individual preventive effects. In particular, courts should take into account the nature and degree of public danger of the crime (crimes) committed by the supervised person, his behavior during the entire period of serving his sentence and behavior after release from prison, the marital status of the said person, the place and schedule of his work and (or) studies, health status, as well as other circumstances worthy of attention. If a person has been convicted of committing a crime under the influence of alcohol or has been punished for drinking alcoholic beverages in an institution of the penal correction system while serving his sentence, it is advisable to consider applying administrative restrictions prohibiting his stay in public catering establishments where alcoholic beverages are sold or drunk.
When setting restrictions, the courts should take into account that a ban on leaving a home can be imposed on a supervised person only within the night time, determined by procedural legislation between 22 hours and 6 hours local time, except in cases of performance of work duties.
The body executing the resolution should not exceed the limits of the restrictions established by the court, and should not allow other restrictions on the rights of citizens (labor, electoral, public and others).
In case of temporary departure to another locality, the supervised person must obtain written permission from the internal affairs body responsible for supervision.
When considering submissions on the establishment, extension of the term of administrative supervision, termination of administrative supervision and petitions for termination of administrative supervision, the minutes of the court session shall be kept. According to article 347 of the CPC, the protocol is produced by computer, electronic (including audio, video recording), typewritten or handwritten methods.
Recording of the course of the court session is carried out by means of audio and video recordings in accordance with Article 347-1 of the CPC.
At the request of the persons participating in the case, the court shall provide a copy of the audio, video recordings or minutes of the court session.
In the protocol made on paper, if the audio-video recording of the trial was not used, in addition to the information specified in part three of Article 347 of the CPC, the explanations and opinions of the representatives of the internal affairs body who appeared at the court session, the convicted person in respect of whom the issue of establishing administrative supervision, other participants in the process should be reflected, as well as all actions of the court, including clarifying the person's right to defense and appeal against the court decision.
The procedure for reviewing the minutes of the court session, submitting comments on it and reviewing comments on audio, video recordings, short minutes of the court session and minutes of the court session made on paper is carried out according to the rules provided for in Articles 348, 348-1, 349 of the CPC.
During the period of administrative supervision, the court, based on a reasoned submission from the internal affairs body or a petition from the supervised person, may partially lift, reduce, or supplement administrative restrictions previously imposed on the supervised person, taking into account information about the supervised person's lifestyle and behavior, and on compliance with administrative restrictions.
In this case, the court, taking into account the specific circumstances of the case, may, at its discretion, impose administrative restrictions not specified in the submission of the internal affairs body, as well as decide to lift administrative restrictions that the applicant does not request to be lifted.
It is the responsibility of the internal affairs bodies to explain to persons under administrative supervision their rights and obligations to comply with the established restrictions, as well as to warn them about criminal liability for evading administrative supervision imposed by the court on persons released from places of deprivation of liberty.
Administrative supervision is carried out by the internal affairs bodies, whose exhaustive list of rights and duties is established by articles 12 and 13 of the Law.
Administrative supervision is terminated in the following cases::
after the expiration of the period for which administrative supervision is established, if it is not extended in a timely manner.;
in case of repayment or removal of a criminal record from a supervised;
in connection with the referral of a supervised person for compulsory treatment in specialized medical and preventive institutions;
in connection with the sentencing of a supervised person to imprisonment;
in connection with the death of a supervised person.
It should be borne in mind that the decision on the termination of administrative supervision on these grounds is not within the jurisdiction of the court. In such cases, the decision to terminate administrative supervision is taken by the internal affairs body that the supervised person is registered with.
If the circumstances provided for in subparagraphs a), c), d), e) and e) of article 14 of the Law are established during the consideration of the case on the extension of administrative supervision, the court must terminate the proceedings.
If the supervised person is sentenced to a non-custodial sentence, the effect of administrative supervision does not cease.
By a court order, administrative supervision may be terminated prematurely on the basis of a reasoned submission from the head of the internal affairs body or at the request of the supervised person, if it is established that the supervised person faithfully observes administrative restrictions, performs duties assigned to him by the court, and is positively characterized by his place of work and (or) place of residence or stay.
A person subject to administrative supervision has the right to petition the court for the lifting of all or part of the restrictions imposed on him.
A person in respect of whom administrative supervision has been terminated prematurely or after the expiration of the term may be re-placed under administrative supervision in accordance with subparagraph (b) article 2 of the Law, if, since his release from prison, his criminal record has not expired or his criminal record has not been withdrawn.
Upon expiration of the repayment period of the criminal record or the removal of the criminal record by the time the court issued the decision, the idea of establishing administrative supervision in respect of him, although it was submitted on time, is not subject to satisfaction.
A person who commits a violation of the established restrictions for the first time after the extension of the term of administrative supervision is liable under the first part of Article 480 of the Administrative Code.
A judge's decision on the establishment of administrative supervision may be revoked or amended by a higher court on the complaint of the person subject to administrative supervision, his lawyer, as well as at the request of the prosecutor.
The court is obliged to hand over a copy of the court's decision to the person under administrative supervision no later than five days upon receipt.
When considering cases of administrative offenses related to violations of the legislation of the Republic of Kazakhstan on administrative supervision and criminal cases of evasion from administrative supervision, the courts, along with other circumstances, should verify the legality of the establishment and extension of the term of administrative supervision.
Only a person may be held liable under article 431 of the Criminal Code and Article 480 of the Administrative Code, in respect of whom there is a court order that has entered into force to establish or extend administrative supervision, which has violated the restrictions or rules of administrative supervision established by the court.
The commission of other violations that do not relate to the established restrictions and rules of administrative supervision is not grounds for bringing a person to administrative responsibility under Article 480 of the Administrative Code.
When considering a case of an administrative offense related to a violation of the legislation on administrative supervision under Article 480 of the Administrative Code, the court is obliged to check, along with other circumstances of the case, the arguments of the supervised person about the causes and motives of a violation (sudden serious illness of the supervised person, death or illness of his close relative and other reasons), which did not allow to comply with the established restrictions.
A person against whom a case has been initiated for violation of the legislation of the Republic of Kazakhstan on administrative supervision is considered innocent until his guilt is proven in accordance with the procedure provided for in the Administrative Code and established by a judge's decision that has entered into force.
Criminal liability under Article 431 of the Criminal Code for the failure of a supervised person to arrive at his chosen place of residence for five days, excluding weekends and holidays, after release from prison, as well as for the unauthorized abandonment of a supervised person released from prison, place of residence occurs only if these acts are committed in order to evade administrative supervision.
An act is not criminalized if the supervised person, without intending to avoid control by the internal affairs bodies, could not arrive at his chosen place of residence within the prescribed time after being released from prison due to a natural or man-made emergency, temporary lack of transport links, serious illness of this person and for other valid reasons.
It also does not constitute a criminal offense under Article 431 of the Criminal Code, and entails only administrative liability under Article 480 of the Administrative Code for an act involving the unauthorized abandonment by a supervised person of a place of residence without the purpose of evading administrative supervision.
The purpose of the supervised person's evasion from administrative supervision as a mandatory sign of the subjective side of the composition of the criminal offense provided for in Article 431 of the Criminal Code must be properly proven in the case. The presence of such a purpose in the supervised person may be indicated by unauthorized abandonment of their place of residence for a long time without valid reasons, deliberate concealment from the supervisory authority of their location outside their place of residence, travel outside the region and the country, and the like.
When imposing penalties for evading administrative supervision imposed on a person released from prison, courts should take into account the defendant's job status, state of health, marital status, and other circumstances that characterize his personality and allow him to be subjected to criminal penalties other than imprisonment provided for by the criminal law.
To invalidate the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 3 "On judicial practice of application of legislation on administrative supervision".
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
J. Asanov
Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session
G. Almagambetova
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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