NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of November 26, 2004 No. 18

About some questions of application by courts of the legislation on administrative offenses

For the purpose of uniform application in court practice of some regulations of the legislation on administrative offenses the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. By hearing of cases about administrative offenses it must be kept in mind that according to article 8 of the Code of the Republic of Kazakhstan about administrative offenses (далееКоАП) non-compliance with the principles of the legislation on administrative offenses depending on nature and importance attracts recognition of the taken place proceeedings about administrative offense invalid, cancellation of the decisions passed during such production or recognition of the materials collected at the same time not having strength of evidence.

2. It is necessary to carry persons to officials, it is permanent, temporary or on special power the right to issue on behalf of the state or its bodies legally significant acts either having administrative powers, or performing organizational and administrative or administrative functions in state bodies, local government bodies, and also in Armed Forces of the Republic of Kazakhstan, other troops and military forming of the Republic of Kazakhstan performing functions of the public agent, given in the procedure established by the law.

Individual entrepreneurs without formation of legal entity, private notaries, private legal executives, lawyers, heads of the legal entity, and equally in the workers of the individual entrepreneur and the legal entity performing organizational and administrative or administrative functions, in case of making of administrative offense in connection with accomplishment of the specified functions, bear the administrative responsibility as officials. It is necessary to understand person entering in individual or collegiate executive body of the legal entity as the head of the legal entity.

If the special part the Administrative Code for making of administrative offense provides responsibility of both the official, and legal entity, responsibility of the last comes only if act was made, authorized, approved by the body or person performing management functions by the legal entity (part two of the article 36 Administrative Code).

By hearing of cases about the administrative offenses made by officials it is necessary to consider provisions of the constituent documents, orders and other acts regulating office powers of persons made responsible in each case.

3. Suspension or prohibition of activities of the individual entrepreneur or legal entity can be applied as as the main, and additional measures of administrative punishment (part two of the article 46 Administrative Code).

In cases when the sanction of the relevant article of the special part the Administrative Code provides such disciplinary measures, case is subject to consideration according to the procedure of administrative legal proceedings.

Application of the specified measures of administrative punishment is possible in cases when violation is removable carrying out necessary actions (actions) in time, established by court for their elimination - in the form of suspension of operations, or violation was not eliminated at the scheduled time or its elimination is impossible - in the form of activities prohibition.

Instruction of specific term of suspension of operations of the individual entrepreneur or legal entity is obligatory (part three of the article 53 Administrative Code).

If the sanction of Article of the special part the Administrative Code does not provide the specified disciplinary measures, the question of suspension or prohibition of activities of the individual entrepreneur or the legal entity is subject to consideration by court according to the procedure of claim production. The corresponding action for declaration of body (official), representative to consider case on administrative offense, is considered by court in ten-day time with participation of all interested persons (part two of the article 53 Administrative Code). At the same time the relevant organ (official) shall enclose the protocol on administrative offense constituted concerning person to the action for declaration, the question of suspension or prohibition of activities of which is subject to permission court or the resolution on administrative prosecution.

4. Owing to requirements of part six of the article 60 Administrative Code for one administrative offense one basic or the main and additional (additional) administrative punishments can be imposed. Therefore courts should consider that in case of release of person from responsibility for making of administrative offense it is subject to release, as from the basic, and additional (additional) penalties.

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