The Code of Administrative Offenses covers most spheres of society's life and involves a wide range of citizens in its scope. The optimization of the Code of Administrative Offenses allowed to regulate the procedure for protecting the rights of persons participating in administrative offense proceedings. Vice Minister of Justice Natalia Pan spoke about the main changes, the importance of optimization and the impact of amendments in an interview with PrimeMinister.kz.

— Tell us about the main changes in the Code of Administrative Offenses? Which areas have been cardinally optimized?

— December 28, 2017, the Head of State signed the law "On Amendments and Additions to the Code of the Republic of Kazakhstan on Administrative Offenses." The law was adopted in pursuance of the Address of the President to the people of Kazakhstan dated January 31, 2017, which instructs to take measures to humanize the administrative and tort legislation. The law contains three main directions: the humanization of administrative and delictual legislation (61% of all amendments), the improvement of individual institutes of proceedings for administrative offenses (8% of all amendments) and the codification of procedural norms of the Code (31% of all amendments), which provides for improving the procedure for reviewing cases and determines the procedural and legal status of the "order on the need to pay a fine."

Strengthening the norms of the Code is not envisaged by this draft law. At the same time, the bill sets the task of further improving the administrative and delictional legislation with a view to humanizing it and reducing repressiveness, including: transferring a number of administrative offenses to civil or disciplinary responsibility, reviewing administrative sanctions for possible mitigation and reduction .

In addition, the draft law provides for the improvement of procedures for dealing with cases of administrative violations, including the further transfer of production to electronic format and the review of the competence of the court and authorized state bodies to review cases.

— Regulation of administrative violations of which countries influenced the drafting of a new Code of Administrative Offenses?

— When developing a new Code, international experience was studied. In particular, the administrative and tort legislation of Germany, the Russian Federation, Belarus, Latvia, etc. was studied. The experience of France and Italy in applying the norms of reduced production was studied and used. At the same time, the provisions of the new Code of Administrative Offenses are developed based on Kazakhstan's law enforcement practice.

— What does the humanization of administrative and tort legislation mean?

— One of the most significant innovations of the new Code of Administrative Offenses is the introduction of a reduced production in the case of an administrative offense. This institution allows you to pay a fine of 50% of the imposed fine for seven days. Previously, it acted only with respect to individuals. The new institute has found its practical application. In this regard, the institute of shortened production, adopted in December, is distributed with respect to officials and legal entities, as well as on offenses recorded by special technical means operating in automatic mode.

Thus, this institution extended its action to 673 additional administrative offenses. In addition, earlier part two of Article 810 of the Code of Administrative Offenses prohibited the use of shortened proceedings in the case of an administrative offense in cases when other types of penalties are provided for by the sanction of the article. This restriction applies to those offenses whose sanctions, on an alternative basis, provide for a "fine" or "warning." After the adoption of the Law, the reduced production is extended to these cases.

— Are there amendments to mitigate sanctions?

— Yes, the sanctions have been softened on 339 administrative offenses. In particular, the Law reduced the amount of fines on 158 compositions. Thirty-one legal components are supplemented by the type of collection in the form of a "warning." In 150 offences, sanctions were reduces by replacing them with less repressive penalties. Along with this, a provision is made that obliges to impose a warning, if there are no aggravating circumstances. For example, for exceeding the set speed, the fines are reduced by half. If earlier, for a speeding off from 10 to 20 km / h, the penalty was just over 24,000 tenge (10 MCI), but now the fine is 12,000 tenge (5 MCI). Likewise, the amount of the fare for the prohibition of the traffic light from 20 MCI to 10 MCI, as well as for some other offenses in the traffic sphere, has been reduced.

One more example. If previously a non-included headlamp in the daytime provided for a fine of 12,000 tenge (5 MCI), now in the absence of aggravating circumstances, a warning can be assigned. Otherwise, the penalty is 7,215 tenge (3 MCI). This provision applies to all articles of the Code of Administrative Offenses. That is, where there is a warning in the sanction of an article and there are no aggravating circumstances, a warning is applied.

— In the case of a minor offense, can a citizen simply dispense with a verbal comment?

— The law resumed the institute of exemption from administrative responsibility with a minor offense. In accordance with Article 64-1 of the Code of Administrative Offenses, if a minor administrative offense is of minor significance, the judge, body (official) authorized to consider cases of administrative violations, may absolve the person who committed the administrative violation from administrative responsibility, limiting himself with an oral observation. It should be noted that this institution acted in the Code of Administrative Offenses in the version of 2001. However, considering that in practice there were corruption risks in the application, this institution was excluded. Now, in order to exclude these corruption factors, article 64-1 of the Administrative Code defines specific cases when this institution can be applied. So, when deciding whether to release a person from administrative responsibility, specific circumstances of the commission of an administrative offense, including the identity of the offender, as well as the object of infringement, will be taken into account, and if there is harm, its size.

— What do you mean by the direction you mentioned, concerning the improvement of individual institutes of production in cases of administrative offenses?

— The Administrative Code introduced an amendment providing for the deprivation or suspension of the validity not of the entire permit document, but only of its individual subspecies. If the activity in the course of which an administrative offense is committed is a subspecies of the licensed type of activity, the administrative penalty in the form of deprivation or suspension of the permit is applied only to a specific sub-type of the licensed type of activity.

For example, earlier the violation of the law in the manufacture of construction and repair and restoration works, the license of the entrepreneur was suspended completely. Now, not all of its licensed activities can be suspended, but only a separate subspecies. Suppose, suspension of the permit only for the performance of drilling operations in the ground, the installation of monolithic structures,

At the same time, an early resumption of the validity of the permit is provided for the elimination of violations that are grounds for suspension. Let's return to our example in the field of construction and installation works. So, previously suspended license in this sphere could be renewed after the expiration of the term established by the court decision. With the new amendments, this license can be renewed ahead of schedule as soon as the violation is rectified. The mechanism of early resumption allows to ensure the stability of the work of enterprises and minimizes the risk of illegal activities of an entrepreneur for the period of suspension of the permit.

— Please tell us about the importance of systematization of procedural norms of the Code of Administrative Offenses? As far as we know, a number of changes have been made aimed at delineating the procedure for reviewing cases considered by state bodies and courts.

— Yes, before the adoption of the law, the entire procedure for handling cases of administrative violations, both by authorized bodies and courts, was regulated in one chapter of the Code of Administrative Offenses — 43. The issues of reviewing unenforceable decisions on cases of administrative violations were also regulated in one chapter of the Code of Administrative Offenses — 45. In order to systematize these procedures, cases considered by state bodies and courts are settled by independent heads. This is due to the need to simplify and ease the use by law enforcement of the procedural rules of the Code of Administrative Offenses. In this connection, the 43 and 45 heads of the Code are divided into separate six chapters.

— In what cases is the fine issued in the form of an order for the payment of a fine?

— If an administrative offense is fixed by certified special instrumentation, and devices that work in automatic mode, for example, the Serghek system, the penalty is formalized in the form of an order to pay a fine. Prior to the adoption of the Law, the procedural and legal status of such a document and the mechanism for making such decisions were not regulated.

Now the Code of Administrative Offenses specifies the procedure for appealing, the order of entry into force, the procedure for execution, as well as the procedure for exemption from execution of the order on the need to pay a fine.

— According to the document, the Law reduced the amount of administrative fines for 40 administrative offenses. What is the reason for such a decision? What is the purpose of the state, optimizing administrative fines?

— First, the mitigation of sanctions is dictated by the need for the formation of administrative and legal sanctions, which must strictly comply with the principle of proportionality of the degree of their public danger and the nature of the offense.

Second, as is known, one of the important tasks of the Code of Administrative Offenses is the prevention of offenses, the education of citizens in the spirit of precise and unswerving observance of laws. However, as practice shows, the preventive potential of the law is not used enough. This is largely due to an underestimation of the real possibilities of the administrative and tort law.

The Administrative Code covers the majority of spheres of society's life and involves a wide range of ordinary citizens in its scope. As a consequence, excessive repressiveness of the Code of Administrative Offenses can adversely affect the efficiency of the state apparatus and the attractiveness of the investment environment. In identifying administrative violations committed for the first time, it would be better to use the practice of clarifying the law, the need for its compliance, the possibility of smoothing out the harm caused, instead of bringing to real accountability. Despite the fact that with the adoption of the new Code, excessive repressiveness of the administrative law was reduced, the potential for humanization is available.

Third, high fines are also a prerequisite for corruption manifestations, creating conditions under which the offender is easier to "pay off" by giving a bribe in a smaller amount than a possible fine.

— What changes in the norms of the Administrative Code affect the small and medium-sized businesses?

— The innovations of the Administrative Code directly affect the interests of small and medium-sized businesses.

First — the legal entities obtained the possibility to pay 50% of the fine within seven days.

Second — the deprivation or suspension of the action is not for the whole authorization document, but only its individual subspecies.

Third is the introduction of the institution of early resumption of the validity of the permit in the event of the elimination of violations that were grounds for suspension.

— Tell us about the package of amendments to the tax legislation?

— As of 01.01.2018, the new Tax Code of the Republic of Kazakhstan was put into effect. It should be noted that the developer of the Tax Code is the Ministry of Finance. In order to reduce the burden on the wage fund from 2018 to 2025, the social tax rate was reduced by 1.5%.

For the development of SMEs, the existing special tax regimes are envisaged. There is a reduction in the tax rate of the patent value — from 2% to 1% to the object of taxation (excluding trading activity — 2%).

The limits of the special tax regime on the basis of the simplified declaration on the number (30 people) and the marginal revenue (2044-fold minimum wage) are revised.

In return, 70% of the VAT exemption (in connection with accession to the WTO) provides for adjustment of VAT offset for producers of agricultural products and agricultural cooperatives.

Along with this, for the development of small and medium-sized businesses, a new alternative regime is also introduced based on a fixed deduction, on a voluntary basis. The maximum income per year is 300 million tenge and the number of employees is 50 people. Thirty percent can be deducted without confirmation. In order to exclude the burden on small businesses, the current threshold for VAT in the amount of 30,000 MCI is retained.

— Since 2019, the mechanism for returning debit balances on purchased goods inside the country is provided, by introducing a control account for VAT, the application of which will be voluntary. Please tell us what this means?

— It is envisaged since 2019 by introducing a control account for VAT, the application of which will be voluntary. At the same time, revenues from e-commerce are exempted from corporate income tax and private income tax. Concerning special economic zones, the provisions on separate accounting of income, land tax and property tax (payment) for all SEZ, social tax and extraterritoriality regime for PIT SEZ, exemption from VAT for imports of goods as part of finished goods produced in the free warehouse. Subsoil users are exempt from CIT of dividends and a gain in value at processing indices. Since 2018, it is 35%, and since 2022 —70% of processed raw materials. The commercial discovery bonus for all contracts is canceled.

The subsoil user will be entitled to compensate for the exploration costs for one deposit under another contract, where production began. An alternative tax on subsoil use was introduced for sea and deep oil fields. The super-profit tax is abolished with the transfer of the load to the rental tax on coal exports. The MET rate for tin was revised (from 6 to 3%). The principle of good faith is introduced: all ambiguities and inaccuracies of the Tax Code will be interpreted in favor of entrepreneurs. From 2020, it is planned to reduce the limitation period for SMEs from five to three years, for the remaining five years.

A norm was introduced to abolish the fine and penalties, if the entrepreneur acted in accordance with the explanation of the tax authority, and on which the position subsequently changed. There will be less reason to appoint unscheduled tax inspections. Since 2020, amendments and additions to the tax legislation are possible only by one law on taxation.

— Since the entry into force of the updated Code, a little over six months have passed, what is the statistics of administrative offenses and the stability of timely payment?

— According to the statistics of the Committee on Legal Statistics and Special Accounts, for the first half of 2018, 2,295,284 persons were involved, which is 7% more than in the second half of 2017 (2,143,027). The growth of the indicator is seen in connection with the increase in the number of persons involved for violations in the sphere of transport and road facilities (in the second half of 2017 — 1,418,560 persons, in the first half of 2018 — 1,461,337 persons). In our opinion, this was facilitated by a clear regulation of the procedural and legal status of the law on the need to pay a fine and the improvement of the mechanism for making such decisions. The fact of an increase in the number of technical means and instruments operating in automatic mode installed on the roads is not excluded.

Meanwhile, the expansion by the Law of the Institute of Reduced Production also affected the legal statistics. So, in comparison with last year's indicator in the first half of 2018, the amount of the collected fine for reduced production increased by 25%.

— In your opinion, how did the updated Code affect the society and the state as a whole?

— In his Address to the people of Kazakhstan dated January 31, 2017, as well as at the opening of the current session of the Parliament, the Head of State focused on the need for humanization of administrative legislation. The adopted changes together with the extension of the warning institute, the reduction in the amount of penalties, as well as the exclusion of a number of administrative offenses, made it possible to significantly reduce the repressiveness of the legislation on administrative violations. The provisions of the Law on the exclusion of legal gaps and conflicts in the Administrative Code, in our opinion, have made it possible to improve the effectiveness of the legislation of Kazakhstan. The introduced mechanisms for the relaxation of liability make it possible to apply penalties taking into account the individual characteristics of each offender. In addition, the improvement of the procedural rules of the Code of Administrative Offenses will clearly regulate the procedure for protecting the rights of persons participating in proceedings in the case of an administrative violation.

— Thanks for the interview!

 

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