Protection of an Administrative offense (case) for failure to timely register at the place of temporary residence within five calendar days from the date of crossing the State border of the Republic of Kazakhstan
According to the protocol on an administrative offense, J., being a citizen of the Russian Federation, arrived in the territory of the Republic of Kazakhstan and failed to register in a timely manner at his place of temporary residence within five calendar days from the date of crossing the State border of the Republic of Kazakhstan. It follows from Zh.'s explanation that on March 05, 2012, he arrived in Petropavlovsk to visit relatives. On March 10, 2012, he left for the Russian Federation, but en route on the stretch between Petropavlovsk and Mamlyutka stations, he was disembarked from the train and a protocol on an administrative offense was drawn up against him. He does not consider himself guilty, because he left Kazakhstan within five days and did not violate the law. By the decree of the commander of the GU "V" of the Petropavlovsk Border Guard Service dated March 10, 2012, Zh. He was brought to administrative responsibility under part 1 of Article 394 of the Administrative Code and was subject to an administrative fine in the amount of 10 monthly calculation indices, which amounted to 16 180 tenge.
By the ruling of the specialized Administrative court of the city of Petropavlovsk dated April 13, 2012, the said resolution was left unchanged, and Zh.'s complaint was not satisfied. The Supervisory Judicial Board of the Supreme Court issued a resolution by the commander of the State Border Guard Service of Petropavlovsk and a ruling by the specialized administrative court of Petropavlovsk in respect of Zh. She cancelled and terminated the proceedings in connection with the absence of elements of an administrative offense in his actions, provided for in part 1 of Article 394 of the Administrative Code on the following grounds. An authorized official, involving J. The administrative responsibility was based on the fact that the registration period is calculated from the date of crossing the state border, i.e. from March 05, 2012 inclusive, therefore Zh. had to register before March 09, 2012 inclusive. Thus, Zh., having failed to register, left Petropavlovsk station in the North Kazakhstan region only on March 10, 2012, i.e. on the sixth day after crossing the state border of Kazakhstan. The specialized administrative court of Petropavlovsk agreed with these conclusions. The court's conclusions that J. in violation of the Rules, he failed to register after 5 days at the place of temporary stay and left the Republic of Kazakhstan on the 6th day, that is, on March 10, 2012, which does not correspond to the circumstances of the case. Issues related to administrative responsibility are contained in various regulatory legal acts of the Republic of Kazakhstan. Offenses committed by citizens and legal entities are combined by law into one codification act (CAO), which defines liability measures for non-compliance with certain norms of current legislation, as well as norms governing the calculation of time limits provided for by administrative legislation. In the event of a dispute over the presence or absence of an unlawful act, the norms of the code are basic, since by virtue of subparagraph 2-1 of paragraph 2 of Article 4 of the Law "On Normative Legal Acts", the codes of the Republic of Kazakhstan are legally lower than only laws amending and supplementing the Constitution, constitutional laws of the Republic of Kazakhstan and decrees of the President of the Republic of Kazakhstan, which have the force of constitutional laws.
At the time of drawing up the protocol on the administrative offense (March 10, 2012), the registration period at the place of residence in the Republic of Kazakhstan had not expired for Zh., that is, having entered Kazakhstan on March 05, 2012, Zh. had to leave the Republic of Kazakhstan without registration on March 10, 2012. He had the right to stay in the territory of the Republic of Kazakhstan without registration until March 10, 2012 inclusive. In such circumstances, Zh.'s actions, as correctly stated in the protest, lack the elements of an administrative offense provided for in part 1 of Article 394 of the Administrative Code. In accordance with subparagraph 1) of Article 665 of the Administrative Code, the grounds for revoking the decision on an administrative offense and issuing a new decision are the inconsistency of the conclusions of the judge, body (official) on the factual circumstances of the case set out in the decision on an administrative offense, examined during the examination of the complaint, protest evidence. According to subparagraph 2) of part 1 of Article 580 of the Administrative Code, proceedings on an administrative offense cannot be initiated, and those initiated are subject to termination in the absence of an administrative offense.
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