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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 22, 2016 No. 12

About some questions of application by courts of regulations of the General part of the Code of the Republic of Kazakhstan of administrative offenses

(as amended on 07-12-2023)

For the purpose of uniform application in court practice of some regulations of General provisions and the General part of the Code of the Republic of Kazakhstan about administrative offenses the plenary session of the Supreme Court of the Republic of Kazakhstan

decides:

1. The legislation on administrative offenses consists of the Code of the Republic of Kazakhstan about administrative offenses (further - the Administrative Code) which is based on the Constitution of the Republic of Kazakhstan (further - the Constitution), the conventional principles and rules of international law, determines conditions and the bases of the administrative responsibility, types of administrative punishments, procedure for production on cases on administrative offenses, including jurisdiction and cognizance of these cases.

Courts when implementing justice should recognize that the international contractual and other commitments of the Republic of Kazakhstan are component of its law in force according to Item 1 of article 4 of the Constitution. When considering the case the court has no right to apply regulations of the legislation of the Republic of Kazakhstan on administrative offenses if other rules are established by the international treaty, the decision on which consent to be bound for the Republic of Kazakhstan was made by means of ratification or accession. In these cases rules of the international treaty are applied.

The decisions of the international organizations and their bodies breaking Constitution regulations on sovereignty of the country, the inadmissibilities of change established by the Constitution of unitarity and territorial integrity of the state the Republic forms of government, and also the restraining constitutional rights and freedom of man and citizen cannot be acknowledged as obligatory for Kazakhstan (item 4 of the normative resolution of the Constitutional Council of the Republic of Kazakhstan of November 5, 2009 No. 6 "About official interpretation of regulations of article 4 of the Constitution of the Republic of Kazakhstan in relation to procedure for execution of decisions of the international organizations and their bodies").

2. For implementation of tasks of protection of the rights, freedoms and legitimate interests of man and citizen, public order and safety and others, listed in part one of the article 6 Administrative Code, from administrative offenses, and also the prevention of their making the legislation on administrative offenses establishes the bases and the principles of the administrative responsibility which violation depending on nature and importance attracts recognition of the taken place proceeedings invalid, cancellation of the decisions passed during such production or recognition of the materials collected at the same time which do not have strength of evidence.

In the presence of gaps in procedural provisions Administrative Code courts should be guided by the constitutional regulations about the principles of justice and about rights of man and citizen, the principles of the legislation on administrative offenses.

3. By hearing of cases about administrative offenses the principle of presumption of innocence enshrined in the article 10 Administrative Code shall be observed strictly.

Any doubts in guilt, including the doubts arising in case of application of the legislation on administrative offenses shall be interpreted and be permitted for benefit of person against whom proceedings on administrative offense are initiated.

4. Purpose of new collection after cancellation or change of the illegal resolution on the case of administrative offense on which collection is already performed is not repeated administrative prosecution.

5. Courts should create necessary conditions for ensuring openness and publicity of proceeedings about administrative offense and realization of the right of citizens and the organizations on receipt of information on such activity of the courts and bodies (officials).

According to Item 1 of article 14 of the International Covenant on Civil and Political Rights (New York, on December 16, 1966, is ratified by the Law of the Republic of Kazakhstan of November 28, 2005 No. 91-III, became effective for the Republic of Kazakhstan on April 24, 2006) restriction of publicity of legal proceedings or part it is admissible "for reasons of morals, public order or state security in democratic society or when that is required by interests of private life of the parties, or - in that measure in what it, according to court, is strictly necessary, - in case of special circumstances when publicity would violate the interests of justice".

Trial of case in the closed production for the purpose of preserving the state secrets is conducted only in the presence in case papers of data which are carried to the state secrets. Petitions of persons participating in case on need of providing the secret protected by the law, data on intimate aspects of life of physical persons, in case of satisfaction them with court are also the basis for trial of case in the closed production.

About conducting trial of case in the closed production it is specified in the minutes if it is kept, and also in the prolog accepted in the matter of the resolution.

6. The prevention can be applied only as the main administrative punishment (part one of the article 42 Administrative Code) and is subject to appointment independently without any additional penalties. On cases on administrative offenses for which making collection in the form of the prevention or penalty with confiscation of the subject which was the tool or subject of making of administrative offense or with suspension of operations is provided additional administrative punishment is appointed only together with administrative penalty.

6-1. According to parts one, the second article 45 Administrative Code, confiscation of the tool or subject of making of administrative offense, and also the property received owing to making of administrative offense consists in their forced non-paid address to property of the state in the procedure established by the legislation. Only the subject which is property of the violator is subject to confiscation if other is not provided by the Special part the Administrative Code.

Courts should mean that confiscation can be applied only when the sanction of the article Administrative Code according to which person is brought to the administrative responsibility, provides it as additional measure of administrative punishment.

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