Theoretical and conceptual principles of the code of administrative offences as of July 5, 2014

Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014

Author: Kozhuganova Dinara, Kazakh-American Free University, Kazakhstan

Improving the administrative law of the Republic of Kazakhstan is one of the important tasks of the state. The Republic of Kazakhstan conducts different legal reforms and works for compliance with the Basic Law of the state. In this regard, it should be emphasized that problems of administrative law arise from the norms of the Constitution.

In his address to the people of Kazakhstan “Strategy 2050: A New Policy of the Established State” the President instructed the Government to start with the reform of criminal law. However, the foundations of the next stage of improving the legislation of the country were based in the Concept of Legal Policy for 2010-2020, approved by Presidential Decree of August 24, 2009, which defined the strategic directions of criminal policy development and a new stage of criminal law modernization. More than 50 administrative offenses were transferred from the Administrative Code to the Criminal Code.

One of the reasons for law modernization was excessive repressive administrative penalties, which in some cases exceeded the penal sanctions. The Administrative Code renewal is related to the reform of criminal law. The adoption of a new version of the Criminal Code could not influence the content of the Administrative Code, as it introduced a new type of wrongful act – “a criminal offense”, which is intermediate between an administrative offense and a crime.

Reasons for frequent changing of code standards are both objective and subjective. The former (objective reasons) include a vast array of relationships regulated by the Code of Administrative Offences. Political, economic, social, spiritual, and other changes in the national and international spheres cause the need to make amendments to the administrative law. In other words, the adoption of a new legislation or amendments to branch laws that change the mechanism of legal regulation in the area objectively implies the need for changes and amendments to the Code of Administrative Offences. The latter (subjective reasons) include the fact that current authorities-developers see an opportunity to effectively solve various problems through the introduction of administrative responsibility for certain violations and the increase of penalties for existing administrative offenses. This can be explained by the fact that more stringent penalties will force the administrative relations participants to bear more responsibility to comply with current legislation.

Since the adoption of the current Code of Administrative Offences in 2001, it has been amended for a number of times, which led to the systematic violation of the Code, the contradiction of some norms, as well as the violations of its General and Specific Parts. As it was mentioned above, the severity of penalties for an administrative offence in some cases exceeds the penal sanctions. Thus, today's realities have prompted the need for a new legislation able to respond to current challenges.

760 of the existing 970 articles of the code were amended: new norms were introduced and the existing ones were renewed. The procedure of cassation revision of the administrative offenses decisions entered into force was also reformed. Now the decision is to be considered on the complaint of the person subjected to administrative liability, the injured or their legal representatives. The valid code provides reconsidering only by the objection of the Prosecutor General and the Prosecutor General Deputies [1].

Administrative law is also reformed by means of humanization and reduction of the courts burden. In this regard, the competence of the courts, bodies, and officials authorized to consider administrative offense cases is also revised. The jurisdiction of the authorized state bodies includes cases on administrative offenses for which fine is prescribed, except for some articles.

Courts will consider cases on administrative offenses for which the following penalties are provided: administrative deportation of foreigners or stateless persons; confiscation of the object which appeared instrument or subject of an administrative offense, as well as property obtained as a result of an administrative offense; deprivation of special rights, licenses, special permit, qualification certificate to a specific activity or performing certain actions; suspension or prohibition of activities or certain types of activities.

The Code provides absolutely certain amount of the fine that would eliminate the corruption factor in making administrative punishment.

Deputies made amendments relating to the institution of administrative detention used as a measure of administrative penalty for the commission of certain offenses. In this context, at the discussion stage of the Criminal Code project some norms stipulating penalty in the form of administrative detention, such as committing illegal acts in family relations, bringing a minor to a state of intoxication, disorderly conduct, violation of administrative supervision law, and driving while intoxicated were excluded from the Criminal Code [3].

It should be noted that in order to humanize the law the Code provides for measures to support small businesses, which was emphasized in the Address of the President to the People of Kazakhstan on January 17, 2014. In particular, compared to the current Code, the amount of penalties for small businesses reduced on average by 50%; the maximum period of administrative detention also reduced to 30 days, in exceptional cases - in a state of emergency - up to 45 days, whereas in the old code the maximum period of administrative detention was 45 days. Thus, the new code provides arrest only in 29 articles, the current - in 69. The exception of the norm “Application of compulsory medical measures to patients suffering from alcoholism, drug addiction or substance abuse and committed an administrative offense” is of great importance too as compulsory medical treatment significantly restricts the rights and freedoms of citizens [2].

Humanization of law is evidenced by the introduction of a provision allowing the judge, body or official to reduce the amount of the fine to 30% for individuals under mitigating circumstances. This innovation was introduced due to the fact that both the old Code and the new Code provide a rule that allows softening the administrative responsibility under such circumstances.

However, it should be noted that the current Code provides neither mitigating nor aggravating circumstances, since over 50% of the articles provide fixed fines.

Adopted provisions are aimed at:

- establishing fixed fines;

- enlarging the number of offences with warning as the first penalty;

- changing the number of persons belonging to officials;

- enlarging the number of provisions establishing the possibility of reducing the fine by 30% under extenuating circumstances;

- introducing a shortened way of considering administrative cases;

- introducing a possibility of reconsidering valid decisions based upon newly discovered evidence and others.

Shortened considering will encourage citizens to voluntarily pay the fines imposed. A citizen, who is fined, can reduce the fine by 50 per cent if pays within seven days from the date of the minutes. This encourages citizens to timely pay the fines, which in its turn will increase the level of fine exaction. This innovation makes it easier to provide the principle of inevitability of punishment inherent in the law. A total reduction of fines affected about 300 articles of the Code.

The institute of administrative proceedings participants’ notification was also improved. Now administrative proceedings can be conducted without the participation of offenders. This minimizes contacts of offenders with police officers thus reducing conditions for corruption.

A new version of the Code of Administrative Offences systematized the following norms: Article 26 of the Civil Procedure Code “Proceedings challenging the decisions of bodies or officials authorized to consider administrative cases” are excluded and its provisions are transferred to Article 45 of the Code of Administrative Offences on reconsideration of administrative decisions which have not yet become effective in law.

A number of provisions of Article 27 of the Code of Civil Procedure “Proceedings against decisions and action (or inaction) of state authorities, local government, public associations, organizations, officials and civil servants” moved to Article 44 of the Code of Administrative Offences against the action or inaction of state authorities or officials carrying out administrative proceedings [4].

The institute of reconsidering valid administrative decisions on newly discovered evidence is introduced. Citizens are better able to protect their rights as according to the current Code, the reconsidering of valid decisions was only possible on the protest of the Prosecutor.

Since January 1, 2015 in accordance with Article 449 of the Code of Administrative Offences “stalking appeal to the public for purchase, sale, exchange or getting things in a different way of a person who is not the subject of entrepreneurship, as well as fortune-telling, begging, sexual services or imposing other services” may be fined in the amount of five monthly calculation indices; for a second offense within a year - in the amount of ten monthly calculation indices or administrative arrest for up to five days. Foreigners or stateless persons may be subjected to administrative detention for up to five days with an administrative expulsion from the Republic of Kazakhstan.

The new Code makes it possible to more effectively protect the rights of citizens and simplifies the provisions of excessively complex law.

New formulations of offenses involving liability for violation of labor rights of workers, for failure of the leave within 2 years, and discrimination against workers with the right to equal working conditions and equal pay are introduced to the new Code.

In order to prevent corruption and to ensure the reduction of production the Code draft sets a certain amount of the fine (in percentage) which is used only in certain cases for violations of environmental, tax, economic legislation, and legislation in electric power engineering.

Humanization is also to expand the application of prevention as a form of administrative punishment.

The new Code of Administrative Offences saved exceptions for a current special order to prosecute for tax offenses and offenses recorded by certified special gauging technical means and devices operating in automatic mode.

The new Code of Administrative Offences determined the order of interaction of state bodies and officials authorized to consider administrative proceedings with the competent state bodies and officials of foreign countries, which will increase the possibility of law enforcement.

In addition, the new version of the Code expanded the use of prevention as a form of administrative punishment, revised competence of bodies authorized to consider administrative proceedings. In particular, 90 articles and 52 clauses of articles providing administrative fines were transferred from the court jurisdiction to public authorities.

REFERENCE

1. Borchashvili I. Emphasis on a new Code of Administrative Offences. http: // www.online.zakon.kz

2. Kurbanova S. Renewal of the Code of Administrative Offences. http: // www.adilet.kz

3. File on the Draft of the Code of Administrative Offences. http:// www. online. zakon. Kz

4. Lepekha I. New Administrative Code allows to effectively protect the rights of citizens. http: // www/zanmedia.kz



Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014

  
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