On some issues of application by courts of the norms of the General Part of the Code of the Republic of Kazakhstan on Administrative Offenses

Home / Regulatory resolution / On some issues of application by courts of the norms of the General Part of the Code of the Republic of Kazakhstan on Administrative Offenses

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12.

For the purposes of uniform application in judicial practice of certain norms of the General Provisions and the General Part of the Code of the Republic of Kazakhstan on Administrative Offenses, the plenary session of the Supreme Court of the Republic of Kazakhstan

Decides:

The legislation on administrative offenses consists of the Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code), which is based on the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), generally recognized principles and norms of international law, defines the conditions and grounds for administrative responsibility, types of administrative penalties, procedure for proceedings in cases of administrative offenses, including jurisdiction and the jurisdiction of these cases.

When administering justice, courts should proceed from the fact that the international contractual and other obligations of the Republic of Kazakhstan are, in accordance with paragraph 1 of Article 4 of the Constitution, an integral part of its current law. When considering a case, the court does not have the right to apply the norms of the legislation of the Republic of Kazakhstan on administrative offenses, if other rules are established by an international treaty, the decision on consent to be bound by the Republic of Kazakhstan was made through ratification or accession. In these cases, the rules of the international agreement apply.

Decisions of international organizations and their bodies that violate the provisions of the Constitution on the sovereignty of the country, the inadmissibility of changing the unity and territorial integrity of the state established by the Constitution, and the form of government of the Republic cannot be recognized as binding on Kazakhstan., as well as infringing on the constitutional rights and freedoms of man and citizen (paragraph 4 of the normative resolution of the Constitutional Council of the Republic of Kazakhstan dated November 5, 2009 No. 6 "On the official interpretation of the norms of Article 4 of the Constitution of the Republic of Kazakhstan in relation to the procedure for the execution of decisions of international organizations and their bodies").

In order to carry out the tasks of protecting the rights, freedoms and legitimate interests of man and citizen, public order and security, and others listed in the first part of Article 6 of the Administrative Code, from administrative offenses, as well as preventing their commission, the legislation on administrative offenses establishes the grounds and principles of administrative responsibility, the violation of which, depending on the nature and materiality, entails recognition of the proceedings in the case are invalid, the cancellation of decisions made during such proceedings or the recognition of materials collected in this case that have no force of evidence.

If there are gaps in the procedural provisions of the Administrative Code, the courts should be guided by the constitutional norms on the principles of justice and on human and civil rights, the principles of legislation on administrative offenses.

When considering cases of administrative offenses, the principle of presumption of innocence, enshrined in Article 10 of the Administrative Code, must be strictly observed.

Any doubts about guilt, including doubts that arise when applying legislation on administrative offenses, must be interpreted and resolved in favor of the person against whom an administrative offense case has been initiated.

The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

The imposition of a new penalty after the cancellation or amendment of an illegal decision in the case of an administrative offense, for which the penalty has already been executed, does not constitute repeated administrative liability.

Courts should create the necessary conditions to ensure the openness and transparency of proceedings on an administrative offense and the exercise of the right of citizens and organizations to receive information about such activities of courts and authorities (officials).

In accordance with paragraph 1 of article 14 of the International Covenant on Civil and Political Rights (New York, December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 No. 91-III, entered into force for the Republic of Kazakhstan on April 24, 2006), the restriction of the publicity of the trial or part of it is permissible "for reasons of morality, public order or State security in a democratic society, or when the interests of the private lives of the parties so require, or to the extent that, in the opinion of the court, it is strictly necessary., – in special circumstances, when publicity would violate the interests of justice."

Closed-door proceedings in order to preserve state secrets are conducted only if there is information in the case file that is classified as state secrets. The petitions of the persons involved in the case about the need to ensure legally protected secrecy, information about the intimate aspects of the lives of individuals, if satisfied by the court, are also the basis for the trial of the case in closed proceedings.

The conduct of the proceedings in closed proceedings is indicated in the minutes of the meeting, if conducted, as well as in the introductory part of the resolution adopted in the case.

A warning can only be applied as a basic administrative penalty (part one of Article 42 of the Administrative Code) and is subject to appointment independently without any additional penalties. In cases of administrative offenses, for which a penalty is provided in the form of a warning or fine with confiscation of an object that was an instrument or object of an administrative offense, or with suspension of activity, an additional administrative penalty is imposed only together with an administrative fine.

According to the first part of Article 44 of the Administrative Code, when determining the amount of a fine as a percentage of the amount of a transaction conducted in violation of financial legislation in a foreign currency, the amount of the fine in tenge is recalculated at the official exchange rate set by the National Bank of the Republic of Kazakhstan at the time of drawing up the protocol on an administrative offense. When considering cases of such offenses committed before 2015, it should be borne in mind that in accordance with the first part of Article 48 of the Administrative Code (as amended in 2001), the official exchange rate at the time of the imposition of the penalty was used to calculate the fine.

The second part of Article 44 of the Administrative Code provides for the maximum amounts of fines imposed on individuals, officials and other persons. With regard to the second part of Article 58 of the Administrative Code, the three-fold maximum fine limit is understood to be the three-fold limit established by the second part of Article 44 of the Administrative Code.

The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

Revocation of a permit for a certain type of activity or the commission of certain actions as a type of administrative penalty is applied by a judge for an administrative offense committed while carrying out activities or performing actions provided for by a license, special permit, qualification certificate (certificate).

Revocation of a license, special permit, or qualification certificate (certificate) for committing an offense unrelated to an activity defined by a license, special permit, or qualification certificate (certificate) for a specific type of activity is not allowed.

If a person is brought to administrative responsibility for carrying out a licensed type of activity in violation of the requirements for such activities, the court has the right to decide on the suspension or prohibition of such activities. If a person is brought to administrative responsibility for carrying out a licensed type of activity without an appropriate license or for carrying out activities requiring another special permit without such a special permit, the court has the right to impose an additional administrative penalty in the form of a prohibition of such activities for the period specified in the sanction of the article of the Special Part of the Administrative Code. Such a court decision does not allow a person to obtain an appropriate license or other special permit during the period of the ban.

The terms of deprivation of a special right granted to a specific individual or legal entity, or the deprivation of a permit or suspension of its validity, as sanctioned by most articles of the Special Part of the Administrative Code, are indicated in months or years, however, in accordance with Article 60 of the Administrative Code, they can also be calculated in calendar days.

The suspension or prohibition of the activities of an individual entrepreneur or a legal entity may be applied both as basic and additional administrative penalties (part two of Article 42 of the Administrative Code).

Suspension of activity is applied as a measure of administrative punishment when the violation is eliminated by carrying out the necessary actions (measures) within the time period established by the court for their elimination. In cases where the violation has not been eliminated within the prescribed period or its elimination is impossible, the prohibition of activity is applied.

The operation of only those facilities (buildings and structures, aggregates), the use of which is carried out in violation of the legislation, is subject to suspension or prohibition. Similarly, the activities of only those branches, representative offices, structural divisions of a legal entity, and production sites in which such violations are found, for which administrative liability is provided in the form of such a penalty (part one of Article 48 of the Administrative Code), are subject to suspension or prohibition.

Specifying a specific period for suspending the activities of an individual entrepreneur or a legal entity is mandatory and may not exceed three months (part three of Article 48 of the Administrative Code).

In cases where the sanction of the article of the Special Part of the Administrative Code provides for such a penalty, the case is subject to consideration by the court in administrative proceedings within ten days.

If the sanction of the article of the Special Part of the Administrative Code does not provide for the specified penalty, the authorized body (official), if authorized, has the right to file a corresponding claim with the court in civil proceedings.

Suspension of activities does not apply to particularly important or categorized civil defense organizations (paragraph 3 of Article 20 of the Law of the Republic of Kazakhstan dated April 11, 2014 No. 188-V "On Civil Protection"), including strategic facilities (military unit, international airport and others), if the disruption of the functioning of such an organization poses a threat to national security., the risk of emergency situations or may lead to significant socio-economic consequences.

The commission of an unlawful act by a structural subdivision of a legal entity that is not an independent taxpayer should be considered repeated if, earlier during the period provided for in Article 61 of the Administrative Code, the legal entity was held accountable for committing the same unlawful act by its other structural subdivision.

The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

Administrative arrest in accordance with Article 50 of the Administrative Code is appointed by a judge in exceptional cases within the limits provided for in the articles of the Special Part of the Administrative Code. When considering cases of administrative offenses for which an administrative penalty in the form of administrative arrest is provided, judges should carefully clarify the presence or absence of the circumstances provided for in the second parts of Articles 32 and 50 of the Administrative Code, excluding the use of administrative arrest.

One main or main and additional administrative penalties may be imposed for one administrative offense (part six of Article 55 of the Administrative Code).

If the sanction of an article of the Special Part of the Administrative Code provides for arrest with an additional penalty (for example, expulsion or deprivation of the right to drive vehicles), then courts should release persons to whom administrative arrest cannot be applied from arrest with reference to Article 50 of the Administrative Code and impose a second penalty provided for by the sanction of the article of the Special Part of the Administrative Code, if the second part of Article 42 of the Administrative Code allows the application of such a penalty as the main administrative penalty.

The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

An administrative penalty for committing an administrative offense is imposed within the limits provided for in the article of the Special Part of the Administrative Code for this administrative offense, in strict accordance with the provisions of the Administrative Code (part one of Article 55 of the Administrative Code). The imposition of penalties below the lowest limit of the sanction provided for in the relevant article of the Special Part of the Administrative Code is not allowed. Taking into account the establishment of the circumstances specified in the first part of Article 829-11 of the Administrative Code, the court has the right to reduce the amount of an administrative fine imposed on the person against whom an administrative offense case has been initiated and calculated in accordance with the first paragraph of the first part of Article 44 of the Administrative Code, but not more than thirty percent of the total amount of the fine (part two of Article 829-11 Administrative Code).

The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

14-1. When imposing administrative penalties on individual entrepreneurs and legal entities engaged in the production and (or) wholesale sale of excisable products, or other types of activities listed in paragraph 4 of Article 24 of the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the PC), the courts, when assessing the information of the authorized body on the category of a business entity, should take into account that this norm prohibits the recognition of such persons are small business entities and microenterprises.

When imposing an administrative penalty on non-profit organizations, the information of the authorized body on the category of a business entity in accordance with article 23 of the PC is not taken into account.

The footnote. The regulatory resolution was supplemented by paragraph 14-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

The limitation period for the imposition of administrative penalties for administrative offenses in the field of taxation is provided for in the second part of Article 62 of the Administrative Code. It is not allowed to calculate the limitation period for the imposition of administrative penalties for such offenses in accordance with the third part of Article 62 of the Administrative Code.

The term for imposing an administrative penalty for an administrative offense in accordance with part five of Article 62 of the Administrative Code is suspended from the moment the case is referred to a court or an official of a state body authorized to consider cases of administrative offenses. This provision also applies to cases where the case of an administrative offense is not referred for consideration to another State body under its jurisdiction. The beginning of the suspension of the limitation period is determined by the date of the actual referral of the case to the court or to an official for consideration on the merits (the date of delivery to the post office, receipt by courier, the date of registration in the register of relevant correspondence, etc.).

When an expert examination is appointed by the body in charge of the administrative offense case, the term for imposing an administrative penalty is suspended from the date of the actual appointment of the expert examination. When an expert examination is appointed or the court issues a ruling on the bringing of a person in respect of whom proceedings are being conducted, the court suspends the duration of the proceedings.

The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

Part six of Article 62 of the Administrative Code stipulates that in the event of termination of a criminal case, if there are signs of an administrative offense in the actions of the violator, the person may be brought to administrative responsibility no later than three months from the date of receipt of the decision to terminate it. This period for the imposition of an administrative penalty is calculated from the date of receipt of the decision to terminate the criminal case by the state body authorized to initiate proceedings on an administrative offense.

In cases where an administrative offense contributed to the commission of a criminal offense and this became known during the judicial review of a criminal case, the court considering the criminal case has the right, in accordance with the procedure provided for in part one of Article 405 of the Criminal Procedure Code of the Republic of Kazakhstan, to impose an administrative penalty if no more than one year has passed since the commission of the administrative offense.

Upon termination of proceedings on an administrative offense due to the expiration of the limitation period for administrative liability (subparagraph 5) of the first part of Article 741 of the Administrative Code), the courts, by virtue of subparagraph 6) of the first part of Article 822 of the Administrative Code, should indicate in the decision all the circumstances established during the consideration of the case, as well as conclusions about the guilt or innocence of the person in committing an offense. Conclusions about guilt are important in resolving the issue of compensation for damage caused by an offense, and by virtue of part five of article 76 of the Civil Procedure Code of the Republic of Kazakhstan, they are not proven again when considering the case of the civil consequences of the same offense committed by this person.

Verification of compliance with the limitation periods for administrative liability established by Article 62 of the Administrative Code is carried out at the time of resolution of the issue of imposing an administrative penalty. When reviewing decisions on the imposition of administrative penalties, compliance with these deadlines is subject to verification at the time of the decision on the imposition of penalties.

The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

18-1. In accordance with the note to Article 62 of the Administrative Code, an offense is considered to be ongoing, which is characterized by the continuous implementation of a single composition of a certain act provided for in the article of the Special Part of the Administrative Code, and has not been completed by the time it is discovered. In this case, the moment of detection should be considered the discovery of an offense by an official of an authorized state body authorized to draw up protocols on administrative offenses in accordance with Article 804 of the Administrative Code.

The footnote. The regulatory resolution was supplemented by paragraph 18-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication). 19. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

The involvement of a minor in the commission of an administrative offense in accordance with subparagraph 3) of Article 57 of the Administrative Code should be considered as an aggravating circumstance if the perpetrator is not brought to administrative responsibility under Article 128 of the Administrative Code.

A protocol on an administrative offense committed by a minor between the ages of 16 and 18 is drawn up in relation to such a person, indicating information about his parents or persons replacing them, who are to be involved in the consideration of the case as legal representatives.

A protocol on an administrative offense committed by a person between the ages of 14 and 16, in cases where the norms of the Administrative Code provide for the responsibility of parents or persons replacing them, is drawn up in relation to these persons. The decision issued in the case of an administrative offense against such persons should indicate how their guilt in the offense is expressed.

An administrative penalty in the form of a fine may be applied to minors who have reached the age of 16 at the time of the commission of an administrative offense, if they have independent earnings or property that can be levied. The amount of the fine imposed on a minor may not exceed ten monthly calculation indices. If a minor does not have such earnings or property, a fine is imposed on the parents or persons replacing them, in compliance with the requirements of Article 66 of the Administrative Code, as indicated in the resolution.

Information about the presence or absence of independent earnings or property from a minor, at the expense of which a fine can be paid, is submitted together with the administrative offense case by the official who drew up the protocol on the administrative offense.

Measures of educational influence in accordance with Article 68 of the Administrative Code may be imposed on a minor who has committed an administrative offense for the first time by a court, an authority (official) authorized to consider cases of administrative offenses, upon release from administrative responsibility or from the execution of an administrative penalty. At the same time, the restriction of leisure time and the establishment of special requirements for the behavior of a minor in accordance with the third part of Article 69 of the Administrative Code is set for a period of three to six months.

The prohibition provided for in subparagraph 3) of the first part of Article 54 of the Administrative Code for minors to visit certain places or travel to other areas without the permission of the Commission for the Protection of minors' rights may be imposed by a court for a period of three months to one year only at the request of participants in the proceedings on an administrative offense or law enforcement agencies during the consideration of the case. Such a prohibition is established as a special requirement for the behavior of a person who has committed an administrative offense provided for in articles 73, 73-1, 73-2, 127, 128, 131, 434, 435, 436, 440 ( parts four and five), 442 (part three), 448, 461, 482, 485 ( part two) The Administrative Code is applied regardless of the purpose of the penalty.

The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 05/31/2019 No. 3 (effective from the date of the first official publication).

The reduction by half of the limitation periods provided for in Article 71 of the Administrative Code, established by Article 62 of the Administrative Code, is subject to application when releasing minors from administrative responsibility or executing administrative penalties.

In cases of administrative offenses for which the parents of juvenile offenders or persons replacing them are liable, the provisions of Article 71 of the Administrative Code are not applicable when resolving the issue of applying the time limits for imposing administrative penalties provided for in Article 62 of the Administrative Code.

According to article 4 of the Constitution, this normative resolution is included in the current law, and is also generally binding and effective from the date of the first official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

Judge

The Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

K. MAMIE

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