On an administrative offense involving evasion from traveling outside the Republic of Kazakhstan for more than ten days after the expiration of the statutory period

Case No. 6212-23-00-3/1477 dated December 7, 2023      

Specialized Court for Administrative Offenses of Zhezkazgan city, Ulytau region, composed of the presiding judge Esibayeva R.M., with the secretary of the court session Nugerbekova A.B.,

with the participation of the prosecutor, Zhakanbai A.D., the person against whom the administrative offense case was initiated, D.I.N.,

his defenders are lawyers K.K.B., Sarzhanova G.T., Nigmetov S.D.,

Representative of the Migration Service Department of the Zhezkazgan city Police Department A.A.D.,

reviewed in open court in Russian the case of an administrative offense against: D.I.N. (D.I.),

in the commission of an administrative offense provided for in Part 4 of Article 517 of the Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter CAO),

According to the protocol, on November 20, 2023, employees of the Migration Service department of the Zhezkazgan city Police Department revealed a violation by a citizen of the Republic of Tajikistan, D.I.N., of the legislation of the Republic of Kazakhstan in the field of population migration, which resulted in evasion from departure for a period exceeding ten days after the expiration of the statutory period, that is, after October 27, 2023, so, D.I.N. he entered the Republic of Kazakhstan on June 30, 2023, was registered before October 24, 2023, upon expiration of the temporary residence permit, he applied to the Public Service Center (hereinafter PSC) on October 26, 2023 for an extension of the temporary residence permit, which was issued to him before November 24, 2023, however, this temporary residence permit The residence was cancelled on October 27, 2023 due to a violation of the deadline for submitting an application for its issuance.

At the hearing, D.I.N. partially admitted guilt, explained that he was a citizen of the Republic of Tajikistan. He arrived in the territory of the Republic of Kazakhstan on June 30, 2023, and received a work permit and a temporary residence permit until October 24, 2023. On October 10, 2023, he bought a plane ticket home to the Republic of Tajikistan for November 10, 2023, because when buying a ticket in advance, its cost is cheaper, and therefore, he planned to extend his temporary residence permit. Since in order to obtain a temporary residence permit, it is necessary to apply to the employer, before the expiration of his stay in the territory of the Republic of Kazakhstan, on October 20, 2023, he applied to the PSC with an application for a work permit. The receipt for the application stated that the date of the planned issue was October 26, 2023. However, on October 23, 2023, he received an SMS notification to his cell phone number that the work permit was ready. Despite this, knowing that on October 24, 2023, his legal stay in Kazakhstan would expire, it was not until October 26, 2023, that he and a relative of his employer, S.G.A. – N.A.M., went to the PSC to apply for a temporary residence permit. The next day, he learned from his employer that his temporary residence permit had been extended until November 24, 2023. He did not know that the specified permit had been issued to him illegally and that it had been revoked, no one had notified him about it, neither he nor his employer had received SMS messages to his cell phone number, and therefore he pleads guilty to having been in the territory of the Republic of Kazakhstan illegally since October 25. From October 2023 to October 26, 2023, however, he does not admit that he was in Kazakhstan illegally for more than ten days.

At the hearing, D.I.N.'s defenders, lawyers K.K.B., Sarzhanov G.T., Nigmetov S.D., supported D.I.N.'s arguments and asked the court to change the qualification of D.I.N.'s actions from part 4 of Article 517 to paragraph 1) of Part 3 of Article 517 of the Administrative Code.

At the hearing, a representative of the Migration service department of the Zhezkazgan city Police Department, A.A.D, testified to the court that on November 20, 2023, a citizen of the Republic of Tajikistan, D.I.N., contacted the migration service department, who explained that he had a temporary residence permit in the Republic of Kazakhstan until November 24, 2023, but when boarding the plane He was taken off the flight from Almaty to Dushanbe, explaining that his permit had been revoked.

When checking this fact, they found that D.I.N. entered the Republic of Kazakhstan on June 30, 2023, was registered until October 24, 2023, upon expiration of the temporary residence permit, he applied to the PSC on October 26, 2023 for an extension of the temporary residence permit, this application was automatically received by them. to the database, where a specialist from the migration service of the Zhezkazgan City Police Department, A.K.A., issued a permit.

However, on October 27, 2023, this permit was revoked, he believes that the cancellation occurred automatically, or by employees of the Ministry of Internal Affairs, due to the fact that the application was submitted after the expiration of the permitted period of stay in Kazakhstan.

She explained that since the permit was revoked on October 27, 2023, D.I.N. was in Kazakhstan illegally from October 27, 2023 until the discovery of this offense, until November 20, 2023, that is, more than ten days after the expiration of the permitted period, in connection with which they drew up a protocol under Article 517 part 4 Administrative Code.  

At the hearing, witness S.G.A. testified to the court that an employment contract had been concluded between her and D.I.N. to carry out work in her apartment until October 24, 2023. Due to the fact that Davlatov I.N. did not have time to finish the renovation of her apartment, he needed to extend his temporary residence permit, and since she had been in a hospital in Astana since October 15, 2023 and could not send an application online via phone, she asked her relative about it on October 22, 2023. N.A.M. That the issued D.I.N. She did not know that her temporary residence permit had been revoked on November 27, 2023, and she had not received an SMS notification to her cell phone number.

At the hearing, witness N.A.N. testified that on October 26, 2023, at the request of her relative S.G.A., she applied to the PSC for an extension of the temporary residence permit for her employee, a citizen of the Republic of Tajikistan, D.I.N. On October 27, 2023, she received a message to her cell phone number stating that the document is ready, they have printed it out. She has not received any reports that the permit has been revoked.

Having listened to the participants in the trial, having examined the case materials, having listened to the conclusion of the prosecutor, who believed that the proceedings against D.I.N. should be terminated under Article 517, part 4 of the Administrative Code, due to the absence of an administrative offense, assessing the evidence collected and presented in terms of their relevance, admissibility and reliability, recognizing it sufficient to make a lawful and Based on the reasoned ruling in the case, the court came to the following conclusion.

          Part 4 of Article 517 of the Administrative Code provides that a violation by a foreigner or a stateless person of the legislation of the Republic of Kazakhstan in the field of population migration, expressed in evasion from departure for a period exceeding ten days after the expiration of the period established by law, entails a fine in the amount of twenty-five monthly calculation indices or administrative expulsion from the Republic of Kazakhstan.

According to Article 2 of the Administrative Code, the basis of administrative responsibility is the commission of an act containing all the elements of an offense provided for in the special part of this Code.

According to Article 11 of the Administrative Code, an individual is subject to administrative responsibility only for those offenses for which his guilt has been established. Objective imputation, that is, administrative responsibility for the innocent infliction of harm by an individual, is not allowed.

According to paragraph 6 of the "Rules of Entry and Stay of Immigrants in the Republic of Kazakhstan, as well as their departure from the Republic of Kazakhstan", approved by Resolution of the Government of the Republic of Kazakhstan dated January 21, 2012 No. 148 (hereinafter referred to as the Rules), the permitted period of stay of immigrants in the Republic of Kazakhstan ends for immigrants who have issued a temporary residence permit – upon expiration the validity of this permission.

The court found that D.I.N. entered the Republic of Kazakhstan on June 30, 2023, and received a temporary residence permit until October 24, 2023.

On October 20, 2023, D.I.N. applied to the PSC for a work permit, since according to paragraph 10 of the Rules, a temporary residence permit is issued on the basis of applications from individuals and legal entities who have concluded an employment contract with an immigrant in accordance with the procedure established by law.

On October 23, 2023, he received an SMS notification to his cell phone number from the number 1414 of the unified contact center of the electronic government portal, stating that the work permit was ready, which was confirmed by his testimony in court, as well as a screenshot from the cell phone message from the number 1414.

On October 26, 2023, that is, after two days from the date of expiry of the permitted period of stay in Kazakhstan, D.I.N. applied with his employer to the PSC for a temporary residence permit.

Despite the expiration of the temporary residence permit of D.I.N. in the Republic of Kazakhstan on October 24, 2023, an employee of the Migration service department of the Zhezkazgan city Police Department A.K.A. on October 27, 2023, D.I.N. was issued a temporary residence permit from October 26, 2023 to November 24, 2023, about which the employer received SMS notification, which is confirmed by the testimony of D.I.N. and witness N.A.N.

According to the response of the Migration Service Committee of the Ministry of Internal Affairs of the Republic of Kazakhstan dated December 7, 2023 to the court's request, according to the information system, the temporary residence permit in the name of D.I.N. became invalid due to the fact that the validity period of the permit was shortened by an employee of the Migration Service Department of the Zhezkazgan city Police Department, A.K.A. temporary residence due to "violation of the rules of stay" for a period until October 27, 2023. Due to the lack of a phone number, D.I.N. It was not possible to notify about the reduction of the validity period of the permit.

In this regard, the court considers the arguments of the representative of the migration service department, A.A.D., that they were not aware that D.I.N. had expired his stay in Kazakhstan on October 26, 2023, and the permit they issued from October 26, 2023 to November 14, 2023 was automatically revoked to be untenable.

Thus, the court found that Inspector A.K.A., on October 27, 2023, having reduced the permitted period of stay of D.I.N. to October 27, 2023, knowing that he violated the period of stay for two days, namely from October 24, 2023 to October 26, 2023, did not take measures to involve him. He was brought to administrative responsibility under paragraph 1) of part 3 of Article 517 of the Administrative Code, did not inform him about the reduction of the period of stay, and D.I.N. was in the territory of the Republic of Kazakhstan in accordance with the issued permit.

In accordance with part 3 of Article 10 of the Administrative Code, any doubts about guilt are interpreted in favor of the person against whom an administrative offense case has been initiated. Doubts arising from the application of legislation on administrative offences should also be resolved in his favor.

No evidence has been presented to the court that D.I.N. intentionally evaded departure for a period exceeding ten days after the expiration of the time limit established by law, and no evidence has been obtained at the court session.

After the expiration of the temporary residence permit on October 24, 2023, D.I.N. was granted a temporary residence permit from October 26, 2023 to November 24, 2023, and D.I.N. was in the Republic of Kazakhstan in accordance with the issued permit, he was not notified about the reduction of the period of stay until October 27, 2023.

Thus, the court considers that D.I.N.'s actions lack the elements of an administrative offense provided for in part 4 of Article 517 of the Administrative Code.

At the same time, the court found that D.I.N., knowing that on October 24, 2023, his temporary residence permit expired, did not leave the Republic of Kazakhstan for two days from October 24, 2023, until October 26, 2023, that is, until he was granted a temporary residence permit..

According to the explanations of D.I.N. and the screenshot from his cell phone provided by him, on October 23, 2023, an SMS notification was sent to his cell phone about the readiness of a work permit, giving the employer the right to apply for a temporary residence permit for a foreign citizen, but they did not take measures to obtain a temporary residence permit., applied with the employer to the PSC to receive it only on October 26, 2023.

Thus, the court considers that D.I.N.'s actions constitute an administrative offense provided for in paragraph 1) part 3 of Article 517 of the Administrative Code, as a violation by a foreigner or a stateless person of the legislation of the Republic of Kazakhstan in the field of population migration, expressed in not leaving the Republic of Kazakhstan after the expiration of the period established by the legislation of the Republic of Kazakhstan within three days.

In accordance with part 4 of Article 829-14 of the Administrative Code, having recognized as a result of consideration of the case an incorrect legal assessment of the deed, the court is obliged to change the qualification of the offense to an article of the law providing for a less severe administrative penalty.

In this regard, the court considers it necessary to change the qualification of D.I.N.'s actions from part 4 of Article 517 of the Administrative Code to paragraph 1) of part 3 of Article 517 of the Administrative Code, which provides for a less severe administrative penalty.

D.I.N.'s guilt in committing the offense provided for in paragraph 1) Part 3 of Article 517 of the Administrative Code, in addition to his confessions, is confirmed by a temporary residence permit from July 26, 2023 to October 24, 2023, an application for a temporary residence permit in the Republic of Kazakhstan dated October 26, 2023; a temporary residence permit from October 26, 2023 to November 24, 2023.

When imposing an administrative penalty, the court takes into account that the sanction of paragraph 1) of part 3 of Article 517 of the Administrative Code has no alternative, and therefore imposes an administrative penalty in the form of a warning on D.I.N.

Based on the above and guided by Articles 829-11, 829-14, 829-16 of the Code of the Republic of Kazakhstan "On Administrative Offenses", the court RULED:

D.I.N. (D.I.) to find guilty under paragraph 1) of part 3 of Article 517 of the Code of the Republic of Kazakhstan on Administrative Offenses and subject him to administrative punishment in the form of a warning under this article.

In addition, the court issued a Private ruling in accordance with Article 829-19 of the Administrative Code, in identifying cases of violations of the rule of law, as well as establishing the causes and conditions conducive to the commission of administrative offenses, the court issues a private ruling and submits to the relevant organization and officials a submission on taking measures to eliminate them.

The court found that D.I.N.'s temporary residence permit expired on October 24, 2023, and the application for a new permit for temporary residence in the Republic of Kazakhstan was filed on October 26, 2023, two days after the expiration of such a permit. Despite the expiration of the temporary residence permit of D.I.N. in the Republic of Kazakhstan on October 24, 2023, an employee of the Migration service department of the Zhezkazgan city Police Department A.K.A. on October 27, 2023, D.I.N. A temporary residence permit was issued from October 26, 2023 to November 24, 2023. At the same time, on October 27, 2023, A.K.A. shortened the period of D.I.N.'s temporary residence permit until October 27, 2023, due to a violation of the rules of stay, while knowing that D.I.N. had violated the period of stay in Kazakhstan for two days, she did not take measures to bring him to administrative responsibility under the paragraph 1) part 3 of Article 517 of the Administrative Code.

In addition, despite these violations, the official Z.S. in relation to D.I.N. drew up a protocol under Article 517, part 4 of the Administrative Code.

These violations indicate an inadequate level of knowledge of the norms of legislation on administrative offenses by officials of the Migration Service Department of the Zhezkazgan City Police Department.

Having identified these violations, in accordance with Article 829-19 of the Administrative Code, the court considers it necessary to issue a private ruling in order to take measures to eliminate them and prevent such facts from occurring in the future.

On the basis of the above, guided by Articles 829-19 of the Administrative Code, the court RULED: To bring the above to the attention of the head of the Ulytau Regional Police Department in order to take measures to eliminate violations of the rule of law. Report the measures taken within one month to the court that issued the private decision.

The parties have not appealed the judicial act to the Court of Appeal, and the court's decision has entered into legal force.

 

 

 

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