The case of an administrative offense was terminated for lack of evidence of an administrative offense.
The Zhitikarinsky district Court of the Kostanay region consists of: under the chairmanship of Judge Korchinskaya L.A., defense lawyer Nigmetov S.D., and official Sh.A.Zh. the person against whom proceedings on an administrative offense are being conducted, EN.S., considered in open court in Russian the case of an administrative offense against EN.S., date of birth: April 4, 1977, year of birth, place of residence: 20, Zhitikara city, K microdistrict, place of work: Kostanay Minerals JSC, driver, identity card No. 039480434 dated September 18, 2015, issued by the Ministry of Internal Affairs of the Republic of Kazakhstan, individual identification number:........ in the commission of an administrative offense provided for in part 1 of Article 463 of the Code of the Republic of Kazakhstan on Administrative Offenses, hereinafter referred to as the Administrative Code. According to the protocol on administrative offense No. 000142 dated April 20, 2022, compiled by the chief specialist of the UGD for the Zhitikarinsky district, A.Zh. Shinbulatova, it follows that "on April 19, 2022, in a passenger car belonging to EN.S. the fact of the transportation of passengers who followed the route Gitikara-Kostanay with passengers in the number of three people was established, the payment for one person amounted to 3,000 tenge, without appropriate documents, thus engaged in entrepreneurial activity without appropriate registration."
These actions of E.N.S. were qualified under Article 463 of Part 1 of the Administrative Code – engaging in entrepreneurial activity without appropriate registration. At the hearing, E.N.S. pleaded not guilty to committing an administrative offense, explaining to the court that he was not engaged in private passenger transportation. On April 19, 2022, in the evening, he and his wife went to the city of Kostanay on business. He took three passengers along the way to offset the cost of gasoline, not for profit. Outside the city, he was stopped by police officers. He explained to the police that he was not engaged in business activities, that is, he took passengers, but took them to compensate for the cost of gasoline. He did not manage to take money from the passengers. He himself works for Kostanay Minerals JSC as a driver. The official Sh.A.Zh. explained to the court that, based on the instructions of the prosecutor's office, an inspection was carried out to identify illegal business activities. On April 19, 2022, she, together with police officers, conducted a raid to identify illegal business activities. In the evening, a car driven by E.N.S. with three passengers was stopped at the exit from the city, which he was taking to the city of Kostanay for 3,000 tenge per person without appropriate documents. Thus, the fact of illegal business activity was established. She did not take explanations from the passengers. Having listened to the explanation of E.N.S., the official, the defender, who asked the case to be dismissed for lack of an administrative offense, having studied the case materials, the court comes to the following conclusion. In accordance with paragraph 4-1 of Article 19 of the Civil Code of the Republic of Kazakhstan, as well as Article 35 of the Entrepreneurial Code of the Republic of Kazakhstan, an individual who does not employ employees on a permanent basis has the right not to register as an individual entrepreneur upon receipt of the following income established by the tax legislation of the Republic of Kazakhstan: taxable at the source of payment; property income; other income. When drawing up the protocol on an administrative offense, income from entrepreneurial activity was not established, and monetary funds were not attached to the case file as material evidence. EN.S. explained at the hearing that he was not engaged in private transportation, on April 19, 2022, he took his wife to the city of Kostanay. He took passengers along the way to offset the cost of gasoline, not for profit. He did not manage to take the money from the passengers. These statements by E.N.S. were not refuted at the hearing. In addition, the materials of the administrative case do not contain any explanations from the persons who were in E.N.S.'s car on April 19, 2022, that is, it has not been clarified how they arranged with E.N.S. for him to take them to the city of Kostanay (either by taxi or along the way), for what amount, that is, the actual circumstances that took place on April 19, 2022, have not been established. In addition, E.N.S. explained that he works for Kostanay Minerals JSC, as a driver, he does not engage in private transportation, he took fellow travelers to justify gasoline. The fact of income extraction by E.N.S. It was not established at the court session. Moreover, after his arrest by police officers on the way out of the city, and there is no concept of "attempted administrative offense" in the administrative Code. From the written explanations of E.N.S., available in the case file, that he took passengers in order to compensate for the cost of gasoline. The guilt of committing an administrative offense must be confirmed by a set of other reliable evidence examined at the court session. However, no other reliable evidence of E.N.S.'s guilt was presented to the court. In accordance with Article 10 of the Administrative Code, a person against whom an administrative offense case has been initiated is considered innocent until his guilt is proven in accordance with the procedure provided for in this Code and established by a legally binding decision of a judge, body (official) who reviewed the case within the limits of his authority. No one has to prove their innocence. 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. Entrepreneurial activity was not confirmed at the court session, and income from entrepreneurial activity was also not established. In accordance with Article 781 and Part 7 of Article 784 of the Administrative Code, the obligation
proving the existence of grounds for administrative responsibility and the guilt of an offense lies with the body (official) authorized to conduct proceedings on cases of administrative offenses. The totality of evidence is considered sufficient to resolve a case if all relevant admissible and reliable evidence has been collected that indisputably establishes the truth about each and every one of the circumstances to be proved. According to paragraph 2 of Part 1 and Part 5 c
Article 821 of the Administrative Code, having considered the case of an administrative offense, the judge, the body (official) issue one of the following decisions - to terminate the proceedings in the case. A decision to terminate the proceedings in a case is made in the event of circumstances precluding the proceedings provided for in Article 741 of this Code.
By virtue of Article 741, part 1, paragraph 2 of the Administrative Code, proceedings on an administrative offense cannot be initiated, and what has been initiated is subject to termination in the absence of an administrative offense. In such circumstances, the actions of EN.S. lack the elements of an administrative offense provided for in Article 463 of part 1 of the Administrative Code, therefore, in accordance with paragraph 2 of part 1 of Article 741 of the Administrative Code, the case is subject to termination, and the offender is released from liability. Guided by Articles 741, part 1, subitem 2), 829-14, part 1, subitem 2) of the Administrative Code, the court RULED: Proceedings in the case of an administrative offense against E.N.S. under Article 463 of part 1 of the Administrative Code should be terminated due to the absence of this element of an administrative offense in his actions. The case of an administrative offense was terminated for lack of evidence of an administrative offense.
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