On the decision of the court in the case of an administrative offense
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 5.
A court decision in an administrative offense case is a procedural document that reflects the outcome of the proceedings in an administrative offense case based on the results of the consideration of the case.
In order to determine the location and specifics of judicial acts adopted by the court in connection with the consideration of cases of administrative offenses by the court, to ensure, along with the legality and validity of the decision on the case of an administrative offense, its clarity and conciseness, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications:
To draw the attention of the courts to the fact that the issuance of a ruling on an administrative offense case, designed to ensure the fulfillment of the tasks of the proceedings on administrative offenses, requires special responsibility for its legality and validity.
A resolution is lawful if it complies with the requirements of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), as well as complies with the provisions of other legislation.
The validity of the ruling means that the ruling must reflect the circumstances relevant to the case, confirmed by evidence examined by the court that meets the requirements of the law on their relevance, admissibility and reliability.
Having considered the case of an administrative offense, complaint, protest, the court issues one of the rulings provided for in the first part of Article 829-14 of the Administrative Code.
When making a decision, the information must be indicated, as well as the issues provided for in Articles 829-14 of the Administrative Code.
The resolution should have a strict logical structure consisting of relatively separate parts that together form a single legal document.
The resolution includes three components – introductory, descriptive, motivational and resolute parts.
In accordance with the eighth part of Article 829-14 of the Administrative Code, the decision is made in writing or in the form of an electronic document.
The resolution, made in the form of an electronic document, must comply with the provisions of the Law of the Republic of Kazakhstan dated January 7, 2003 No. 370 "On electronic document and electronic digital Signature". The procedure for electronic document management is determined by the Government of the Republic of Kazakhstan.
The resolution can be produced in handwritten, typewritten or computer-generated form in one copy.
When drafting a resolution, it is necessary to be guided by the internal documents of the judicial system regulating the issues of legal technique and the parameters of drafting judicial acts.
The introductory part of the resolution begins after the name of the document and includes the information provided for in the sub-paragraphs 1), 2), 3), 4), 5) part one of Article 822 of the Administrative Code.
The resolution indicates the date, month and year of the resolution.
The date of the ruling is the day, month and year of its announcement by the judge.
The place of consideration of the case is the city or other locality where the decision was actually made.
The name of the court should be indicated in accordance with the regulatory legal act on its formation.
In the introductory part of the resolution, it is necessary to indicate the surname and initials of the judge, the secretary of the court session, the prosecutor and other participants in the proceedings listed in the articles. 744, 745, 746, 747, 748, 758 Administrative Code, who participated in the court session in which the decision was made.
The provisions of subparagraph 3) of the first part of Article 822 of the Administrative Code contain a list of information about the person in respect of whom the case is being considered, which should be reflected in the introductory part of the resolution in full, is exhaustive and cannot be interpreted broadly.
Information about the person against whom the case is being considered is essential for the proper resolution of the case (in particular, to establish whether this person is the subject of this administrative offense), for the appointment of a fair measure of administrative punishment, the execution of the decision, and the resolution of other issues.
The surname, first name and patronymic (if any) of the person in respect of whom the proceedings are being conducted are indicated in the language of the proceedings, taking into account the rules of practical transcription.
In cases where the proceedings are conducted in Russian, and the surname, first name, patronymic of the person indicated in the identity documents are in the official language, the resolution must state the personal data of the person, without bending, in exact accordance with the entry in the official identity document.
The surname, first name and patronymic of the foreign person in the resolution must be indicated both in the language of production and in the transcription used in the identity document. (For example, Toyimbaev Ravshan Mavlankulovich.
In cases where a foreign person does not have an identity document, a certificate of a stateless person or a refugee, the person against whom the proceedings are being conducted is indicated on the basis of a written confirmation received from his country of origin.
The identity of an individual in respect of whom proceedings are being conducted is certified on the basis of documents, the list of which is provided for in paragraph 1 of Article 6 of the Law of the Republic of Kazakhstan dated January 29, 2013 No. 73-V "On Identity documents".
If proceedings have been initiated against a legal entity, the name should be indicated in accordance with the document on the state registration of the legal entity.
The circumstances established during the consideration of the case are subject to presentation in the descriptive and motivational part of the resolution. These circumstances include:
the circumstances of the committed administrative offense (establishment of the event of an administrative offense), as well as a description of the time and place of the commission of the administrative offense, the consequences resulting from its commission;
description of the unlawful actions (inaction) of the person being held administratively liable, the form of his guilt in committing an administrative offense;
presentation of evidence confirming or refuting the guilt of a person in committing an administrative offense, their assessment in terms of relevance, admissibility and reliability;
the analysis of other information of legal importance for the correct qualification of the offense, the imposition of a fair penalty for an administrative offense and the execution of the decision.
When drafting the descriptive and motivational part of the resolution, the completeness of the description of the administrative offense recognized as proven must be ensured.
If a person is found guilty of committing an offense, the relevant part of the resolution contains a description of the action or omission, the commission of which is directly prohibited by both the norms of the Special Part of the Administrative Code and laws and regulations - if there is a direct reference to this circumstance in the article of the Special Part of the Administrative Code (reference norms) - indicating the place, time, method its commission, the form of guilt, motives and consequences of the committed offense.
The descriptive and motivational part of the resolution is the justification of the decisions set out in its operative part and should not contradict it.
Certain norms of the Special part of the Administrative Code are presented in a form-based manner. For such compositions, the court's decision should contain an indication of which specific provisions of regulatory legal acts have been violated, as well as the content of these violations. It should be borne in mind that violations of regulatory legal acts that are not causally related to the consequences that have occurred cannot form the objective side of the offense and are subject to exclusion.
An indication in the descriptive and motivational part of the resolution on the fact of drawing up a protocol on an administrative offense against a person being held administratively liable is superfluous.
The following are prohibited in the text of the resolution: excessive detailing of events and circumstances; quoting legal norms unrelated to the offense; the use of abbreviations and words that are not used in official documents.
It is incorrect to state the essence of the offense in a court decision by copying the text from the protocol in full, since only the circumstances of the offense established in court are fully set out in the descriptive and motivational part of the decision.
The descriptive and motivational part of the resolution should indicate which evidence was examined in court, its content was disclosed and an assessment was given.
The analysis of evidence does not imply a simple enumeration of procedural and other documents, but the disclosure of their contents, indicating which circumstances confirm these proofs.
The courts should indicate in their decision which evidence examined at the court session was found to be unreliable, and which factual data was found to be inadmissible as evidence, and motivate their conclusions.
The resolution should set out the position of the person in respect of whom proceedings are being conducted on an administrative offense against the offense imputed to him.
An admission of guilt can be used as the basis for bringing to administrative responsibility only if the guilt is confirmed by a set of other evidence established in the case.
If the person being held administratively liable changes his explanations given by him during the pre-trial proceedings, the court is obliged to check all the explanations, find out the reasons for their change and, as a result of the study, together with other evidence collected in the case, give them an appropriate assessment.
The explanations of the person in respect of whom the protocol on an administrative offense was drawn up, the victims, other persons participating in the case, the testimony of witnesses, the explanations of the expert, specialist are given in the resolution from a third party.
In case of lengthy explanations, indications and explanations, it is allowed to make references to audio and video recordings with an accurate indication of the time interval.
The courts should keep in mind that the reference in the resolution to the explanations of the victims and witnesses who were not interviewed at the court session is possible if these persons were absent from the trial for valid reasons that exclude the possibility of their appearance in court, and their earlier explanations were announced and examined at the court session.
In the resolution, it is necessary to indicate not only the names of witnesses, victims and other persons whose testimony confirms certain factual circumstances, but also to state the essence of these testimonies.
If several witnesses have been interviewed in the case who have given similar testimony, it is sufficient to present the testimony of one of the witnesses, limiting it to indicating the identity of the testimony of other witnesses.
The case of an administrative offense is subject to consideration with the mandatory participation of the victim. In his absence, the case may be considered only in the cases provided for in the second part of Article 744 of the Administrative Code. The reasons for considering the case in the absence of the victim should be reflected in the descriptive and motivational part of the decision.
Courts should keep in mind that the expert opinion, like other evidence, is subject to evaluation in conjunction with other materials collected in the case and examined at the court session.
The court's assessment of the expert's opinion should be fully reflected in the decision.
The court should not limit itself to referring only to the expert's opinion in the decision, but should indicate which facts relevant to the case are confirmed by this conclusion.
If the examination is entrusted to several experts who have given separate conclusions, the reasons for agreeing or disagreeing with them should be given separately for each conclusion.
Conclusions regarding the qualification of an offense under a particular article of the Special Part of the Administrative Code, its part or paragraph should be motivated in the resolution.
Despite the indication in the protocol on an administrative offense of a specific article of the Administrative Code, a law or other regulatory legal acts providing for administrative liability for an offense committed by a person, the Administrative Code assigns the right to the final legal qualification of a person's actions (inaction) to the powers of the court.
If, during the consideration of the case, it is established that the protocol on an administrative offense contains an incorrect qualification of the committed offense, the judge is obliged to reclassify the actions (inaction) of the person to another article providing for the composition of the offense having a single generic object of encroachment, provided that the sanction of this article provides for a less severe administrative penalty than imposed by the protocol, which should be it is motivated in the resolution.
In the same manner, the issue of reclassification of a person's actions (inaction) during the review of a decision on an administrative offense case may be resolved.
When describing the event of an offense, it is necessary to indicate all the qualifying signs of the offense, based on the disposition of the article of the Special Part of the Administrative Code imputed to the offender, including the repetition of actions.
A copy of the effective court order (official) confirming the fact of repeated commission of the offense, or information from the bodies of the Committee on Legal Statistics and Special Records of the General Prosecutor's Office of the Republic of Kazakhstan, must be attached to the materials of the administrative offense case.
When determining the repetition, the court must proceed from the provisions of the general part of the Administrative Code on the period during which a person is considered to have been subjected to an administrative penalty provided for in Article 61 of the Administrative Code.
The disposition of certain articles of the Special Part of the Administrative Code provides for liability for the commission of several actions by various subjects of the offense (for example, the first part of Article 282 of the Administrative Code is the failure or late submission of an accompanying invoice, declaration for ethyl alcohol and (or) alcoholic products). In this case, the courts need to indicate only those actions that resulted in bringing a person to administrative responsibility and proved by the case materials, rather than listing all the actions specified in the disposition of the article, as well as identify the subject of the offense.
When determining the measure of administrative punishment, the court is obliged to provide the reasons for the chosen measure of administrative punishment in the descriptive and motivational part of the resolution.
When imposing an administrative penalty on an individual, the nature of the administrative offense committed, the identity of the perpetrator, including his behavior before and after the offense, property status, circumstances mitigating and aggravating liability are taken into account.
To draw the attention of the courts to the need for strict observance of the principle of individualization of administrative penalties when making a decision, if there are alternative penalties in the sanctions of articles of the Special Part of the Administrative Code. The resolution must specify which specific circumstances, indicating the nature and degree of public danger of the offense, as well as the identity of the perpetrator, are taken into account when choosing a penalty measure. The reference in the resolution only to the fact that the administrative penalty was imposed "taking into account the identity of the perpetrator" is insufficient.
The court has the right to refer as a motive for choosing a certain measure of punishment only to such circumstances that were investigated at the court session.
In the absence of an alternative administrative penalty in the sanction of the article of the Special Part of the Administrative Code, a reference to Articles 56 and 57 of the Administrative Code, as well as justification of the motive for choosing this administrative penalty measure, is not required. In this case, the resolution should reflect that the sanction of this rule of the Administrative Code provides for only one specific type of administrative penalty.
Based on the first part of Article 54 of the Administrative Code, when considering a case of an administrative offense, at the request of participants in the proceedings on an administrative offense and (or) internal affairs bodies, the court may establish special requirements for the behavior of a person who has committed an administrative offense.
The list of these requirements is exhaustive and is not subject to extensive interpretation.
Special requirements for the behavior of a person who has committed an administrative offense may be applied in full or separately, depending on the lifestyle, behavior in the family and at the place of residence, and other circumstances characterizing the personality of this person.
The establishment of such requirements is the right, not the duty, of the court, therefore, the reasons for the decision taken by the court to establish such requirements or to refuse to establish them should be motivated in the decision.
In the operative part of the resolution, it is necessary to indicate exactly what requirements for the behavior of a person who has committed an administrative offense are established by the court, and for how long.
The resolution of petitions filed during the trial does not require the issuance of a separate ruling, except in cases where the issuance of a separate document is necessary for the commission of a separate procedural action (appointment of an expert examination, court order, demand for evidence, etc.). The grounds for rejecting petitions are subject to reflection in a court decision in cases where it is related to the assessment of evidence or has another essential to the consideration of the case on the merits.
Disagreement of the persons mentioned in the articles 744, 745, 746, 747, 748, 759 The Administrative Code, with a court ruling on the satisfaction or rejection of the application, may be set out in a complaint, an appeal against a court decision issued based on the results of consideration of an administrative offense case, and is subject to mandatory investigation by the court of appeal when considering the said complaint., the appeal petition.
The court's decision should address the issues of compensation for property damage to the perpetrators, indicating the amount of damage to be recovered.
When resolving the issue of compensation for damages in the framework of administrative proceedings, the relationship characteristic of the plaintiff and the defendant does not arise between the victim and the offender. The damage is subject to recovery in accordance with the first part of Article 59 of the Administrative Code in the absence of a dispute about its amount, which must be indicated in the descriptive and motivational part of the resolution.
The reasons for the decision to compensate for the damage and the fate of the material evidence are given by the court in the descriptive and motivational part of the decision.
If there are disputes about compensation for material damage, these issues are resolved in civil proceedings, which must be explained to the participants in the proceedings on an administrative offense.
Based on the second part of Article 829-11 of the Administrative Code, the right to reduce the amount of an administrative fine imposed on a person against whom an administrative offense case has been initiated is provided, subject to a restrictive reduction limit (no more than 30% of the total amount of the administrative fine).
In the descriptive and motivational part of the resolution, the reasons for the decision to reduce the amount of the administrative fine should be given, taking into account the established circumstances provided for in the first part of Article 829-11 of the Administrative Code.
In the case of a reduction in the amount of an administrative fine, it is sufficient in the operative part of the resolution to indicate the final amount of the administrative fine to be levied, without providing a calculation, which is reflected in the descriptive and motivational part of the resolution.
In the case of an administrative penalty, the operative part of the resolution indicates the decision on the case. It should consist in finding guilty an individual against whom proceedings are being conducted on an administrative offense, bringing a legal entity to administrative responsibility and imposing an administrative penalty on it.
When presenting the operative part, the surname, first name and patronymic (if any) of the person found guilty of committing an administrative offense are indicated. When bringing a legal entity to administrative responsibility, the full name and organizational and legal form of the legal entity are indicated, as well as the article, part, paragraph of the Special Part of the Administrative Code, according to which the individual was found guilty or a legal entity, the type and amount of the main and additional administrative penalties are subject to administrative liability.
The decision to terminate the proceedings in the case is made in the cases provided for in Articles 741, 742 of the Administrative Code, as well as in the case of transfer of the case file to the appropriate authorities to resolve the issue of bringing a person to disciplinary responsibility in accordance with Articles 32, 64-1 of the Administrative Code (exemption from administrative liability for minor offenses), 68 of the Administrative Code (exemption of minors from administrative liability liability and administrative penalty).
The descriptive and motivational part of the decision to dismiss the case sets out:
the circumstances of the offense specified 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.
When imposing an administrative arrest, the operative part of the resolution indicates its duration - the number of days in figures and in words.
To draw the attention of the courts that in the decision on the imposition of an administrative penalty in the form of arrest, the judge should indicate the moment from which the period of arrest is to be calculated, taking into account the time of actual detention, to the nearest hour and minute.
The seizure from the illegal possession of a person who has committed an administrative offense of items of an administrative offense that have been withdrawn from circulation and are subject to conversion to State revenue or destruction does not constitute confiscation. When making a ruling on an administrative offense case, the court must decide on the fate of these facilities, regardless of whether the person is brought to administrative responsibility, including when making a decision to terminate the proceedings.
By assigning an additional penalty in the form of confiscation of property, the court in the operative part of the resolution indicates the amount of property to be confiscated and lists the items to be confiscated.
When specifying vehicle brands, it is necessary to adhere to the official name, in exact accordance with the certificate of state registration.
If the brand of the vehicle is indicated in two languages, it must be stated in full accordance with the certificate of state registration of the vehicle.
When making a decision on administrative expulsion from the Republic of Kazakhstan, the resolution specifies a reasonable period during which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan.
A reasonable period of time begins from the moment the expulsion order enters into force. In accordance with subparagraph 4) of Article 883 of the Administrative Code, a court decision on the expulsion of a foreigner or stateless person from the Republic of Kazakhstan comes into force after the announcement. If the expulsion is imposed as an additional penalty to the main measure of punishment, the court decision shall enter into force after the expiration of the time limit set for appealing the decision in the case of an administrative offense, if it has not been appealed or an appeal has not been filed.
The courts should determine the reasonable period during which a foreigner or a stateless person must leave the territory of the Republic of Kazakhstan, taking into account the provisions of paragraphs 9, 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 4 "On judicial practice of considering cases of expulsion of foreigners or stateless persons from the Republic of Kazakhstan.";
According to Article 829-18 of the Administrative Code, the court that issued the decision, at the request of the participants in the proceedings, the bailiff, the body (official) executing the decision in the case of an administrative offense, or on its own initiative, has the right to correct the typos, typos and arithmetic errors made in the decision without changing the content of the decision. At the same time, correction of descriptions, typos and arithmetic errors made in the resolution without changing the content of the resolution is permissible after the resolution is issued, regardless of whether it has entered into legal force or not.
The operative part must specify the time limit and procedure for appealing the decision.
The written decision is signed by the judge who issued it. A decision made in the form of an electronic document is certified by means of an electronic digital signature of the judge who issued such a decision.
Based on the first part of Article 829-16 of the Administrative Code, the decision is announced immediately after its issuance.
After the announcement, the judge orally explains the substance, motives and legal consequences of the decision, which is noted in the minutes of the court session.
The judge also explains the right, procedure and time limit for appealing the decision, these actions are subject to reflection in the minutes of the court session.
A court decision within three days after its issuance is handed over or sent to the person against whom the decision was issued in the case, and to the victim, if he files a complaint or at his request, to the prosecutor who brought the protest, with the exception of cases of administrative offenses, the sanction of which provides for administrative punishment in the form of administrative arrest, expulsion.
Courts should keep in mind that when making a decision on the results of a complaint or protest, along with the information and issues to be resolved provided for in Article 822 of the Administrative Code, the descriptive and motivational part of the decision should contain a legal assessment of the arguments of the complaint or protest provided for in the second part of Article 829-10 of the Administrative Code.
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, with the exception of paragraph four of paragraph 30, which enters into force on September 1, 2018.
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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