NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of May 31, 2019 No. 1

About court practice of application of the legislation on administrative supervision

Due to the questions which arose at courts by hearing of cases about application of the legislation of the Republic of Kazakhstan on administrative supervision, for the purpose of ensuring uniformity of court practice on the specified cases the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. The legislation on administrative supervision is based on the Constitution of the Republic of Kazakhstan and consists of the Criminal Code of Kazakhstan (further - UK), the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), the Penitentiary code of the Republic of Kazakhstan (further - WICK), the Code of the Republic of Kazakhstan about administrative offenses (further - the Administrative Code), the Law of the Republic of Kazakhstan of July 15, 1996 No. 28-I "About administrative supervision of persons exempted from places of detention" (further - the Law) and other regulatory legal acts of the Republic of Kazakhstan.

2. Administrative supervision represents the measure directed to prevention of repeated making of crimes by the persons exempted from places of detention, having criminal record for the certain types of crimes provided by the Law by means of establishment by court of temporary restrictions of their rights and freedoms, assignment of obligations on them (further - administrative restriction) and implementation by law-enforcement bodies of observation of observance by specified persons (persons under surveillance) of administrative restrictions. Administrative supervision is not punishment for making of criminal offense.

3. In case of the solution of question of establishment of administrative supervision courts need to check whether the face is subject concerning which according to the Law administrative supervision can be established.

Courts should mean that operation of the Law extends only to persons serving custodial sanction, at the same time administrative supervision can be applied to foreign citizens or stateless persons on condition of their accommodation (stay) in the territory of the Republic of Kazakhstan on legal causes.

Resolving issue of whether treat to terrorist either extremist crimes or crimes against sexual integrity of minors of act for which making person served sentence, courts shall be guided by Items 30), 39) and 42) of article 3 UK (the subitem and) article 2 of the Law).

In case of establishment of administrative supervision concerning persons who served sentence for making of heavy and (or) especially serious crimes or offenders two and more times to imprisonment for intentional crimes it must be kept in mind that behind the called persons administrative supervision is established only in case of recognition their having the third negative degree of behavior at the time of the termination of term of punishment (the subitem) article 2 of the Law).

4. Administrative supervision of persons who served sentence for heavy and (or) especially serious crimes or offenders two and more times to imprisonment for intentional crimes according to the subitem in) article 2 of the Law can be established in case of set of the following circumstances:

person served sentence for the crimes relating at the time of establishment of supervision to heavy and (or) especially serious crimes or two and more times to imprisonment were condemned for intentional crimes;

concerning it after serving sentence warnings were issued by law-enforcement bodies;

person systematically disturbs the public peace, the rights and legitimate interests of man and citizen, makes other offenses.

The prevention of person who served sentence for heavy and (or) especially serious crimes or the offender two and more times to imprisonment for intentional crimes consists in official caution by its law-enforcement body about inadmissibility of delinquent behavior, disorderly conduct, the rights and legitimate interests of man and citizen, making of other offenses. The warning is issued in writing.

Systematic disorderly conduct, the rights and legitimate interests of man and citizen committing by person after serving sentence of two and more administrative offenses encroaching on the rights of the personality, the right of minors, public safety and health of the population, and also to public order and morality (the subitem in) article 2 of the Law, Chapter 10, of 12, of 24, 25 Administrative Code), within one year estimated from the moment of making of the first administrative offense is.

It is necessary to understand condemnation of specified persons for criminal offense for which it appoints the punishment measure which is not connected with imprisonment and without establishment of control of their behavior as making of other offenses or concerning them proceeedings are stopped on not rehabilitating bases.

5. The stipulated in Clause 2 Laws the list of persons behind whom administrative supervision can be established is exhaustive and is not subject to extensive interpretation.

In this regard administrative supervision cannot be established behind persons having criminal record for criminal offenses:

the decriminalized and not attracting criminal records in connection with change of the penal statute;

belonging to the category of heavy or especially serious crimes for which making they did not serve sentence in places of detention.

The persons judged two times to imprisonment for intentional crimes and who were not serving sentence in places of detention, and also having removed or extinguished in the procedure for criminal record established by the penal statute cannot be exposed to administrative supervision.

According to requirements of article 6 UK about retroactive effect of the penal statute mitigating punishability of act, administrative supervision cannot be also established concerning the person judged and who served sentence for serious crime which in subsequent in connection with change of the penal statute is referred to crime of smaller weight.

If administrative supervision was established, but act for which person served sentence, is decriminalized afterwards, then court according to the petition of the person under surveillance or his defender, or on representation of law-enforcement bodies or the prosecutor repeals the resolution on establishment of administrative supervision about what issues the decree.

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