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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