7th Symposium of Lawyers - Alexandr Denisenko

“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications”

Comments on the speech made by the Assistant Secretary General of KAZATO Alexandr .A. Denisenko
at the seventh symposium of legal practitioners “Level of harmonisation of the policy of inspection and sanctions against carriers transporting goods by road”
Saint Petersburg, 30th April 2008.

“Policy of inspection and sanctions regarding the conditions for admission to the profession”

National regulation of road transport in the Republic of Kazakhstan has been implemented, as in many countries around the world, on the basis of licences granting permission to engage in international road transport of passengers and goods.

With the coming into force of the new law in the Republic of Kazakhstan “governing the issuing of licences” on 11th January 2007 (no 214-III ZRK), within the road transport sector only the transportation of hazardous goods has required a licence since August of last year.

Licences granting permission to engage in international transportation of hazardous goods are issued by local officials working for the Transport Inspection committee of the Ministry of Transport and Communication for the Republic of Kazakhstan, in accordance with the resolution passed by the Government of the Republic of Kazakhstan on 27th June 2007 (no 534 - Rules for issuing licences for the transportation of hazardous goods).

In order to obtain a licence, individuals and corporate entities submit to the person issuing the licence all of the following documents:

1. copies, certified by a notary, of the memorandum of association and registration certificate showing the status of the applicant as a legal entity – for a legal entity,
2. a copy of the identity certification document – for an individual,
3. a copy, certified by a notary, of the registration certificate showing the status of the applicant as an individual entrepreneur – for an individual entrepreneur,
4. a copy, certified by a notary, of the applicant’s registration with the tax authorities,
5. information and documents confirming that the applicant meets the requirements in terms of qualifications, including the presence of:

• road vehicles, in the form of property, on the basis of a lease agreement or an authorisation, designed to transport hazardous goods,
• continuous professional experience of the vehicle’s driver as a driver in the appropriate category of no less than 3 years,
• the certificate of authorisation for the driver to transport hazardous goods,
• the certificate of authorisation for the vehicle to transport hazardous goods,
• the conclusions of the health and safety inspection and the fire inspection relating to the capacity of the vehicle to undertake licensed activities,
• the mandatory insurance policy covering the legal civil liability of the owners of vehicles.

When a licence is used, a document is drawn up for each vehicle, confirming the presence of a licence (see below – registration document). The registration document also represents a certificate authorising the use of the vehicle in question to engage in the activity covered by the licence.

Following the abolition of licences for international transportation of passengers and goods (except for hazardous goods), the republic is currently devising a normative document, governing the procedure for the authorisation of national carriers to engage in international transport, in accordance with national and international legislative standards.

This document includes requirements in terms of the reputation, solid financial position and professional expertise of carriers.

Documents needed on board the vehicle:

I. For national carriers:
- Authorisation, granting the right to operate in a foreign country.

II. For foreign carriers:
- Authorisation, granting the right to operate within the Republic of Kazakhstan.
If, when registering a road vehicle in a foreign country, a system not requiring authorisation is practiced in the international road transport sector in accordance with international agreements, ratified by the Republic of Kazakhstan, operation of this type of foreign vehicle within the Republic of Kazakhstan is undertaken on the basis of a registration stub for entry of the foreign road vehicle into the Republic of Kazakhstan, issued at transport checkpoints when entering the Republic of Kazakhstan.
- Authorisation to engage in transport operations for (from) other countries.
The transfer of road vehicles, including with goods, in transit within the Republic of Kazakhstan or from the Republic of Kazakhstan, is undertaken in accordance with the procedure specified by the agreements for international transportation of passengers and goods with the foreign country, on whose territory the transfer takes place.

In the case of the transfer of road vehicles intended for use within the Republic of Kazakhstan, including with goods, authorisation documents are not necessary.

On national authorisation documents, confirming the right to operate within the Republic of Kazakhstan, the transport inspection bodies mark the date for the road vehicle in question to leave the Republic of Kazakhstan (no more than 30 days), as well as the route within the Republic of Kazakhstan, on the basis of clauses of the Rules for the entry and residence of foreign citizens within the Republic of Kazakhstan, as well as their departure from the Republic of Kazakhstan, ratified by the resolution passed by the Government of the Republic of Kazakhstan on 28th January 2000 (no 136 – Specific questions of the legal regulation of residence by foreign citizens within the Republic of Kazakhstan”, goods transport documents and a definition of the route (mainly on major roads).

III For foreign and national carriers:
- Special authorisation for international transportation of abnormal loads and heavy goods.
- Licence (authorisation) to operate with known hazardous goods, issued by the relevant body, with the route forms for transporting hazardous goods, accident forms, driver and specialist training certificates, certificates authorising the driver to transport hazardous goods, authorisation for the vehicle to transport hazardous goods.
- The corresponding authorisation for refurbished vehicles.
- Confirmation of payment, in the specified cases, of road duty for operation of vehicles on the roads in the Republic of Kazakhstan.
- Road waybill and other documents, stipulated in international agreements for the Republic of Kazakhstan.
- Insurance policy for mandatory insurance covering the legal civil liability of the owners of vehicles, insurance policy for mandatory insurance covering the legal civil liability of the carrier as regards passengers and compliance with other rules stipulated in national legislation and international agreements for the Republic of Kazakhstan.
- Lease agreement for the vehicle.
- Employment/hiring contract for the driver.
- Authorisation to drive the vehicle.

In Kazakhstan, transport inspections regarding compliance with the procedure for engaging in international road transport are carried out by the Transport Inspection Committee of the Ministry of Transport and Communication for the Republic of Kazakhstan.

Where an infringement is discovered, an official fine is imposed on the carrier, a corresponding duty is collected, and the carrier is obliged to undertake measures to remedy the infringements in question.

In the case of an infringement of the clauses of agreements relating to international road transport, the relevant bodies in the Republic of Kazakhstan, on the request of the relevant body in the country where the infringement has taken place, may warn the carrier who committed the infringement or take the decision to temporarily, partially or completely, suspend the carrier’s rights to engage in transport within the country where the infringement took place.

The clauses of this article do not release the carrier from his liability in the event of an infringement of legislation in a country where he/she is operating.

The amount of any fine in Kazakhstan is defined by the laws of the Republic of Kazakhstan “governing administrative offences”.

Infringement of the rules for transporting passengers, luggage and goods by road results in a fine for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between ten and fifteen, and for corporate entities in the form of large companies, of between twenty and twenty five monthly assessment indicators (article 447 section 2).

The infringements outlined in section 2 of this article, committed for a second time during the year following an official punishment, result in a fine for individual entrepreneurs, for corporate entities in the form of small or medium sized companies, of between fifteen and twenty, and for corporate entities in the form of large companies of between twenty five and fifty monthly assessment indicators (article 447 section 3).

Use of a vehicle without systems for monitoring drivers’ working hours and breaks (tachographs) or with these type of systems switched off, or with incomplete tachograph disks, as well as any failure to complete the daily sheets for recording  drivers’ working hours and breaks when engaging in international road transport of passengers, luggage and goods, results in a fine for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between ten and twenty, and for corporate entities in the form of large companies, of between twenty and fifty monthly assessment indicators (article 447-1 section 1).

Transporting hazardous goods using road vehicles or specialist road vehicles, with an infringement of the specified rules, as well as without special authorisation, results in a fine, for individuals of between five and ten, for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between ten and thirty, and for corporate entities in the form of large companies, of between thirty and fifty monthly assessment indicators (article 463 section 2).

The  movement of abnormal and/or heavy loads, as well as transporting indivisible abnormal and/or heavy loads using specialist road vehicles, with an infringement of the specified rules, as well as without special authorisation, results in a fine, for individuals of between five and ten, for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between ten and thirty, and for corporate entities in the form of large companies, of between thirty and fifty monthly assessment indicators (article 463 section 3).

The absence of passenger lists for drivers of road vehicles engaging in irregular international road transport of passengers and luggage, results in a fine of between three and five monthly assessment indicators (article 447-3).

Transporting passengers, luggage or goods using road vehicles registered in a foreign country, specifically temporarily imported into the Republic of Kazakhstan, belonging to carriers from a foreign country, between points situated within the Republic of Kazakhstan, results in a fine for individuals of between five and ten, for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between ten and twenty, and for corporate entities in the form of large companies, of between twenty five and forty monthly assessment indicators (article 447-4).

Infringement of legislation in the Republic of Kazakhstan relating to mandatory insurance or a failure to take out mandatory insurance by the person who is responsible for taking out mandatory insurance in accordance with legislation in the Republic of Kazakhstan relating to mandatory insurance, results in a fine for individuals of between three and seven, for employees, individual entrepreneurs, private notaries, of between fifty and one hundred, for corporate entities in the form of small or medium sized companies, of between two hundred and four hundred, and for corporate entities in the form of large companies, of between five hundred and one thousand monthly assessment indicators (article 175 section 2, where these infringements are committed by the owners of vehicles).

The operation of motor vehicles with polluting substances in their exhaust fumes, as well a noise level produced during use above the recognised standards, results in a warning or a fine for individuals of two monthly assessment indicators (article 247 section 1).

The infringements outlined in section 1 of the article in question, committed for a second time during the year following an official punishment, result in a fine for individuals of five monthly assessment indicators (article 247 section 2).

Operation of regular passenger and luggage road transport without the appropriate certificate, confirming the right to cover the stated transport routes, results in a fine for individuals of between three and five, for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between five and fifteen, and for corporate entities in the form of large companies, of between fifteen and twenty five monthly assessment indicators (article 467-1 section 1).

The infringements outlined in section 1 of the article in question, committed for a second time during the year following an official punishment, result in a fine for individuals of between five and ten, for individual entrepreneurs, corporate entities in the form of small or medium sized companies, of between fifteen and thirty, and for corporate entities in the form of large companies, of between twenty five and fifty monthly assessment indicators (article 467-1 section 2).

Journeys without a ticket and transporting passengers on long distance bus services result in a fine of half a monthly assessment indicator. Transporting children aged between seven and fifteen years old without a ticket on a long distance bus service results in a fine of half a monthly assessment indicator. Involvement of employees in transporting passengers without a ticket results in a fine of up to ten monthly assessment indicators (article 479).

Transporting luggage for free on a long distance bus service results in a fine of a fifth of a monthly assessment indicator for each piece of luggage (article 480).

Damaging a vehicle intended for transporting goods, as well as transport facilities results in a fine of five monthly assessment indicators. Damaging seals and locking mechanisms on vehicles, trailers and containers, removing seals, damaging isolated consignments of goods and their packaging and parcels results in a fine of up to ten monthly assessment indicators (article 481, extract for road transport).

Appeal procedures and deadlines

Decisions and actions by transport inspection bodies and their employees may be contested by means of legal or administrative proceedings, outlined in the legislation of the Republic of Kazakhstan.
Pursuant to the standards appearing in the law on administrative offences:

Article 656. Procedure for contesting or lodging a protest against a decision relating to an administrative offence.

1. An appeal against a decision relating to the investigation of an administrative offence is sent to the adjudicator, within the body (an employee) that issued the investigation’s decision, who is then obliged, within three days from receipt of the appeal or protest, to send the appeal with all the investigation documents to the relevant court, a higher body (to a superior employee).
2. An appeal may be lodged and a protest made directly to the court, to the higher body (to a superior employee), appointed to examine the matter. The procedure for lodging an appeal directly with a court regarding a decision relating to an administrative offence, issued by the body (the employee), is defined in the legislation governing civil proceedings.
3. An appeal or protest against an adjudicator’s decision relating to the imposition of a recovery in the form of an official arrest, must be sent to the higher court on the day on which the appeal or protest is received.
4. Should a hearing of the appeal or protest not lie within the remit of the adjudicator whose decision relating to an investigation of an administrative offence is contested or under protest, the appeal or protest is sent to the court with the appropriate authority.

Article 657. Deadline for contesting or appealing against a decision resulting from an investigation of an administrative offence
1. An appeal or protest against a decision relating to an investigation of an administrative offence may be submitted within ten days from the day on which a copy of the decision is issued, and in the event that the people did not take part in the investigation hearing, from the day on which it is received.
2. In the event that the deadline stipulated in section 1 is not met for a valid reason, this deadline may be re-established, in response to a request from the person against whom the decision was issued, by the court or the body (the employee), responsible for hearing the appeal.

Article 659. Suspension of the execution of a decision following the submission of an appeal or lodging of a protest
1. Submission of an appeal by the stated deadline suspends execution of the decision to impose an official punishment until the appeal has been heard, except in cases where an official punishment is imposed in the place where the administrative offence is committed.
2. The prosecutor has the right to suspend the execution of a decision to impose an official punishment for the time it takes to verify its legality or to issue written orders to the relevant employees and bodies (except for the court) regarding the performance of additional checks. Following the results of checks, the prosecutor submits a protest to the corresponding body regarding a repeal or modification of the decision, or lifts the suspension on executing the decision.
3. The issue by the prosecutor of the protest suspends execution of the decision until the protest has been heard.

Article 660. Deadlines for hearing appeals or protests against a decision relating to the investigation of an administrative offence.
1. An appeal or protest against a decision relating to an administrative offence must be heard within ten days from the day on which it is received.
2. An appeal or protest against a decision relating to an official arrest, if the person in question is subject to an official arrest, must be heard within 24 hours of the appeal or protest being submitted.

Article 705. Contesting actions following the execution of a decision to impose an official punishment
1. The person subject to official proceedings may, within ten days from the day on which execution of actions enforced by the decision regarding the imposition of an official punishment is required, submit an appeal to the adjudicator or the body (the employee) who issued the decision.
2. Appeals are submitted in writing and must be heard within five days.
3. A person who has lodged an appeal is informed of the time and place of its hearing. Nevertheless, the fact that the person who lodged the appeal is not present does not pose any obstacle to it being heard.
4. Following the results of the hearing of an appeal, a ruling on whether the appeal is admissible or not is issued.
5. A copy of the ruling is immediately issued to the individual or the legal representative of the corporate entity forming the subject of the official proceedings, and in the event that these people are not present, they are sent the ruling within three days of the day on which the ruling is issued.
6. Compensation must be paid for harm caused by illegal actions on the part of employees following the enforced execution of the decision relating to administrative proceedings in accordance with the rules appearing in Civil Law and the Code of Civil Proceedings of the Republic of Kazakhstan.

The principal regulatory acts relating to road transport activities applicable within the Republic of Kazakhstan

1. Law of the Republic of Kazakhstan of 4th July 2003 № 476-II “Governing road transport”,
2. Law of the Republic of Kazakhstan of 17th July 2001 № 245-II "Governing roads for use by motor vehicles”,
3. Law of the Republic of Kazakhstan of 30.01.01. №156-II “Law of the Republic of Kazakhstan governing administrative offences”, 
4. Law of the Republic of Kazakhstan of 15th July 1996 № 29-I “Governing road traffic safety”,
5. Law of the Republic of Kazakhstan of 1st July 2003 № 444-II “Governing mandatory insurance covering the legal civil liability of carriers as regards passengers”,
6. Law of the Republic of Kazakhstan of 1st July 2003 № 446-II “Governing mandatory insurance covering the legal civil liability of vehicle owners”,
7. Resolution passed by the Government of the Republic of Kazakhstan on 24th January 2005 № 51 “Regarding the ratification of rules for organising and engaging in the transportation of indivisible abnormal and heavy goods within the Republic of Kazakhstan”,
8. Resolution passed by the Government of the Republic of Kazakhstan on 12th March 2004 № 316 “Regarding certain questions relating to the transportation of hazardous goods by road”:
   - Rules for transporting hazardous goods by road, their movement within the Republic of Kazakhstan, and requirements in terms of the authorisation/qualification of drivers and vehicles transporting hazardous goods.
   - Appended list of hazardous goods authorised for transportation by road vehicles within the Republic of Kazakhstan,
9. Resolution passed by the Government of the Republic of Kazakhstan on 26th December 2003 №1326 “Regarding the appointment of a suitable body within the Republic of Kazakhstan to apply the European Agreement on working with vehicles providing international road transport”,
10. Resolution passed by the Government of the Republic of Kazakhstan on 13th January 2005 №12 “Regarding the ratification of rules for the involvement of carriers in handling extraordinary situations”,
11. Resolution passed by the Government of the Republic of Kazakhstan on 8th September 2000 №1358 “Regarding the creation of a single national system for inspecting road transport within the Republic of Kazakhstan”,
12. Resolution passed by the Government of the Republic of Kazakhstan on 27th February 2004 № 238 “Regarding ratification of the list of inspection points for road vehicles crossing the national borders of the Republic of Kazakhstan and transport checkpoints within the Republic of Kazakhstan”,
13. Resolution passed by the Government of the Republic of Kazakhstan on 25th November 1997 № 1650 “Regarding ratification of road traffic rules for the Republic of Kazakhstan, the main clauses relating to the authorisation of operating vehicles and the responsibilities of employees and those involved in road traffic to ensure the safety of road traffic and the list of operational and special equipment, with which vehicles must be equipped including special lights and audible signals and their paintwork in accordance with special graphic colour schemes”,
14. Resolution passed by the Government of the Republic of Kazakhstan on 19th January 2002 № 62 “Certain questions governing the movement of road vehicles within the Republic of Kazakhstan”,
    - Rules governing the movement of road vehicles within the Republic of Kazakhstan and the issue of authorisation documents,
    - Duty rates for the movement of road vehicles within the Republic of Kazakhstan,
    - Acceptable parameters for road vehicles intending to use roads within the Republic of Kazakhstan.
15. Joint order from the President of the Customs Agency of the Republic of Kazakhstan on 10th October 2002 № 47, from the President of the National Security Committee of the Republic of Kazakhstan on 9th December 2002 № 217, the Minister of Transport and Communication for the Republic of Kazakhstan on 23rd October 2002 № 353-I, the Minister of Health for the Republic of Kazakhstan on 14th January 2003 № 34 and the Minister of Agriculture for the Republic of Kazakhstan on 7th January 2003 № 3 “Regarding ratification of the instruction relating to the procedure for cooperation and location of supervisory bodies when carrying out inspections at crossing points on the borders of the Republic of Kazakhstan”,
16. Order from the Minister of Transport and Communication for the Republic of Kazakhstan on 22nd December 2004 № 478-I “Regarding ratification of the rules for transporting goods by road”,
17. Order from the Minister of Transport and Communication for the Republic of Kazakhstan on 17th February 2005 № 84-I. Registered with the Ministry of Justice of the Republic of Kazakhstan on 23rd March 2005 with the № 3507 “Rules for application of the authorisation system for international road transport within the Republic of Kazakhstan”,
18. Order from the ad interim Minister of Transport and Communication for the Republic of Kazakhstan on 10th March 2004 № 113-I “Regarding ratification of the rules for transporting passengers and luggage by road”,
19. Order from the Minister of Transport and Communication for the Republic of Kazakhstan on 25th June 2004 № 241-I “Regarding the organisation of inter-city and inter-region road transport for passengers and luggage (including the capital and destination town/city within the Republic)”,
20. Order from the ad interim Minister of Transport and Communication for the Republic of Kazakhstan on 19th January 2004 № 16-I “Regarding ratification of the rules for organising drivers’ working hours and breaks, the requirements in terms of systems on road vehicles for monitoring drivers’ working hours and breaks (tachographs)”,
21. Order from the President of the Transport Inspection Committee of the Ministry of Transport and Communication of the Republic of Kazakhstan on 31st May 2004 №38-П “Regarding certain measures for improving recording and issuing of authorisation documents for road transport”,
22. Order from the Deputy Prime Minister – the Minister of Agriculture for the Republic of Kazakhstan on 16th April 2003 №206 regarding the ratification of “Rules for transporting (movement of) goods subject to veterinary surveillance within the Republic of Kazakhstan”, coordinated by the President of the Customs Agency of the Republic of Kazakhstan on 23rd April 2003 and by the Minister of Transport and Communication for the Republic of Kazakhstan on 6th May 2003,
23. Order from the President of the Atomic Energy Committee of the Ministry of Energy and Mineral Resources of the Republic of Kazakhstan on 3rd September 2002 №65. Registered with the Ministry of Justice of the Republic of Kazakhstan on 8th October 2002 №1996 “Regarding ratification of the rules for the safe transportation of radio-active materials”.

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