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The procedure for conducting inspections by regulatory authorities

In accordance with the current legislation of the Republic of Kazakhstan, in particular the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the PC of the Republic of Kazakhstan or the Code), the activities of business entities are subject to mandatory control and supervision in order to prevent violations of consumer rights.

1. State control (hereinafter referred to as control) is the activity of the control and supervision body for checking and monitoring for compliance of the activities of the inspected entities with the requirements established by the legislation of the Republic of Kazakhstan, in the course of implementation and as a result of which measures of a right-restrictive nature can be applied without prompt response.

1.1. Control is divided into internal and external.

1.2. The procedure for conducting internal control is determined by the Administrative Procedure and Procedure Code of the Republic of Kazakhstan.

1.3. External control is the control carried out by the body of control and supervision to check and supervise the activities of the audited entities for compliance with the requirements specified in the PC RK.

The procedure for conducting external control is determined by Article 137 and paragraph 2 of Chapter 13 of the PC RK.

1.4. Based on the results of external control, in case of violations of the legislation of the Republic of Kazakhstan, state bodies, within their competence, initiate administrative, disciplinary proceedings or initiate relevant statements of claim within their competence and (or) take other measures provided for by the laws of the Republic of Kazakhstan.

2. State supervision (hereinafter referred to as supervision) is the activity of the control and supervision body for verification, prevention and monitoring of compliance by the subjects of supervision with the requirements of the legislation of the Republic of Kazakhstan with the right to apply prompt response measures in the course of its implementation, as a result of which administrative penalties may be applied.

2.1. Supervision consists in the application by the authorized state body of law-restrictive measures of prompt response without initiating administrative proceedings.

2.2. Supervision is divided into:
1) supreme supervision, carried out by the prosecutor’s office on behalf of the state in accordance with the Constitution of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan “On the Prosecutor’s Office” and other legislation of the Republic of Kazakhstan;
2) supervision carried out by authorized state bodies in the manner and on the terms established by the PC of the RK and other laws of the Republic of Kazakhstan.

3. Control and supervision over the activities of subjects (objects) of control and supervision are carried out in the form of:
1) inspections, the procedure for organizing and conducting which is determined by the PC of the RK, and in cases provided for by the PC of the RK, by other laws of the Republic of Kazakhstan;
2) preventive control and supervision, which are preventive and preventive in nature, unless otherwise provided by the Code of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget” (Tax Code), the procedure for organizing and conducting which is determined by the PC of the RK and other laws of the Republic of Kazakhstan.

4. Preventive control and supervision are divided into:
1) preventive control and supervision with a visit to the subject (target) of control and supervision;
2) preventive control and supervision without visiting the subject (object) of control and supervision.

5. Preventive control and supervision with a visit to the subject (object) of control and supervision are control and supervision carried out by the body of control and supervision in relation to a specific subject (object) of control and supervision in accordance with paragraph 3 of Article 141 of the PC RK, aimed at prevention, presentation recommendations for eliminating the causes and conditions for the commission of offenses in order to prevent them and prevent the onset of a threat to human life and health, the environment, the legitimate interests of individuals and legal entities, the state.

Based on the results of preventive control and supervision with a visit to the subject (object) of control and supervision, an order is drawn up to eliminate violations without initiating a case on an administrative offense.

The body of control and supervision initiates cases of an administrative offense when exercising control in the field of support and protection of business entities, in the areas of natural monopolies, over compliance with the pricing procedure and obligations of a subject of a socially significant market established by the PC of the RK, as well as in the field of environmental protection – in case detection of violations at objects of category I.

6. In case of detection of gross violations in accordance with the criteria for assessing the degree of risk, with the exception of permitting control of the applicant’s compliance with qualification or permitting requirements prior to the issuance of a permit and (or) annex to the permit, based on the results of preventive control and supervision with a visit to the subject (object) of control and supervision, in accordance with the criteria for assessing the degree of risk, the control and supervision body appoints an unscheduled inspection in accordance with subparagraph 1) of paragraph 3 of Article 144 of the PC RK.

7. Preventive control and supervision without visiting the subject (object) of control and supervision are carried out in accordance with the PC of the RK and other laws of the Republic of Kazakhstan in compliance with the following conditions:
1) bodies of control and supervision are prohibited from visiting the subjects (objects) of control and supervision;
2) registration with the authorized body in the field of legal statistics and special records and prior notification of the subject of control and supervision are not required;
3) based on the results of preventive control and supervision without visiting the subject (object) of control and supervision, depending on their type, final documents (certificate, conclusion, recommendations, etc.) are drawn up without initiating an administrative offense case in the event of a violation, but with a mandatory explanation to the subject control and supervision of the procedure for its elimination.

To conduct preventive control and supervision without visiting the subject (object) of control and supervision, the laws of the Republic of Kazakhstan determine the procedure for conducting preventive control and supervision without visiting the subject (object) of control and supervision with the obligatory indication of goals, tools, methods of conducting, a list of subjects, the frequency of carrying out , a method of accounting for preventive control and supervision without visiting the subject (object) of control and supervision.

8. The results of the analysis of preventive control and supervision without visiting the subject (object) of control and supervision may be the basis for the selection of subjects (objects) of control and supervision for preventive control and supervision with a visit to the subject (object) of control and supervision.

9. Inspection and preventive control and supervision with a visit to the subject (object) of control and supervision shall be carried out by the control and supervision bodies by performing one of the following actions:
1) visits to the subject (object) of control and supervision by an official of the state body;
2) requesting the necessary information regarding the subject of the audit, with the exception of requesting the necessary information during preventive control and supervision;
3) calling the subject of control and supervision in order to obtain information on its compliance with the requirements established in accordance with paragraph 2 of Article 132 of the PC RK.

10. It is prohibited to conduct inspections according to a special procedure for conducting inspections and preventive control and supervision with a visit to the subject (object) of control and supervision, carried out on the basis of risk assessment criteria, in relation to small businesses, including micro-entrepreneurship, within three years from the date of state registration (except for legal entities established in the course of reorganization and successors of reorganized legal entities).

11. There are 2 types of checks:
1) checks carried out in a special order based on the degree of risk – are appointed by the control and supervision body based on an assessment of the degree of risk in relation to a particular subject (object) of control and supervision, in order to prevent and (or) eliminate an immediate threat to human life and health, the environment environment, legitimate interests of individuals and legal entities, the state;
2) unscheduled – inspections appointed on specific facts and circumstances that served as the basis for the appointment of an unscheduled inspection.
Note: It is prohibited to conduct inspections according to a special procedure for conducting inspections and preventive control, and supervision with a visit to the subject (object) of control and supervision in relation to small businesses, including micro-entrepreneurship, within three years from 01/01/2020 to 01/01/2023 Decree of the President of the Republic of Kazakhstan dated December 26, 2019

12. The most frequent grounds for an unscheduled inspection of subjects of control and supervision are:

  • appeals of individuals and legal entities on specific facts of violations of the requirements of the legislation of the Republic of Kazakhstan, the failure to eliminate which entails harm to human life and health;
  • appeals from individuals and legal entities on specific facts about harm to life, human health, the environment and the legitimate interests of individuals and legal entities, the state, with the exception of appeals from individuals and legal entities (consumers) whose rights have been violated, and appeals from state bodies ;
  • requests from individuals and legal entities (consumers) whose rights have been violated.

13. In the event that grounds are identified for conducting an unscheduled inspection at facilities or entities located at a considerable distance from the location of the control and supervision bodies and the authorized body for legal statistics and special records, an unscheduled inspection is carried out without prior notification of the inspected subject and registration of the act of appointment verification with its subsequent submission within the next five working days to the authorized body for legal statistics and special records.

A significant distance from the location of the controlling and registering bodies is considered to be a distance exceeding 100 kilometers from the place of registration of the act on the appointment of an inspection to the place of its conduct.

14. An audit is carried out on the basis of an act on the appointment of an audit by a state body.

Preventive control and supervision with a visit to the subject (object) of control and supervision are carried out on the basis of an act on the appointment of preventive control and supervision with a visit to the subject (object) of control and supervision by a state body.

15. The act on the appointment of the inspection shall indicate:
1) number and date of the act;
2) the name of the state body;
3) last name, first name, patronymic (if it is indicated in the identity document) and position of the person (persons) authorized to conduct the inspection;
4) information about specialists, consultants and experts involved in the audit;
5) the name of the subject of control and supervision or last name, first name, patronymic (if it is indicated in the identity document) of the individual in respect of which the inspection is scheduled, his location, identification number, list of objects of control and supervision, area of ​​the territory.

In the event of an inspection of a branch and (or) representative office of a legal entity, the act on the appointment of an inspection shall indicate its name and location;

6) the subject of the scheduled inspection;
7) the term for the inspection;
8) legal grounds for conducting an audit, including regulatory legal acts, the mandatory requirements of which are subject to verification;
9) the period under review;
10) the rights and obligations of the subject of control and supervision, provided for in Article 155 of the PC of the RK;
11) the signature of the person authorized to sign the acts and the seal of the state body;
12) the signature of the head of the legal entity or his authorized person, an individual on receipt or refusal to receive an act on the appointment of an inspection.

16. The act on the appointment of preventive control and supervision with a visit to the subject (object) of control and supervision shall indicate:
1) number and date of the act;
2) the name of the state body;
3) last name, first name, patronymic (if it is indicated in the identity document) and position of the person (persons) authorized to conduct preventive control and supervision with a visit to the subject (object) of control and supervision;
4) information about specialists, consultants and experts involved in carrying out preventive control and supervision with a visit to the subject (object) of control and supervision;
5) the name of the subject of control and supervision or the surname, name, patronymic (if it is indicated in the identity document) of the individual in respect of whom preventive control and supervision is scheduled with a visit to the subject (object) of control and supervision, his location, identification number, list of objects of control and supervision, area of ​​the territory.
In the case of preventive control and supervision with a visit to the subject (object) of control and supervision of the branch and (or) representative office of a legal entity, the act on the appointment of preventive control and supervision with a visit to the subject (object) of control and supervision shall indicate its name and location;
6) the subject of the appointed preventive control and supervision with a visit to the subject (object) of control and supervision;
7) the term for conducting preventive control and supervision with a visit to the subject (object) of control and supervision;
8) legal grounds for conducting preventive control and supervision with a visit to the subject (object) of control and supervision, including the requirements of checklists;
9) the rights and obligations of the subject of control and supervision, provided for in Article 155 of the PC of the RK;
10) the signature of the person authorized to sign the acts and the seal of the state body;
11) the signature of the head of the legal entity or his authorized person, an individual on receipt or refusal to receive an act on the appointment of preventive control and supervision with a visit to the subject (object) of control and supervision.

17. The act of appointment, an additional act on the extension of the terms of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision are mandatory registered with the authorized body in the field of legal statistics and special records.
The act of appointment, an additional act on the extension of the terms of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision are registered before the start of the inspection and preventive control and supervision.

18. The body of control and supervision is obliged to notify in writing the subject of control and supervision (the head of a legal entity or his authorized person, an individual) of the start of the conduct at least 30 calendar days before the start of the audit in accordance with a special procedure for conducting audits, indicating the date of commencement of the audit and the subject matter of the audit.

When conducting an unscheduled inspection and preventive control and supervision with a visit to the subject (object) of control and supervision, the control and supervision body is obliged to notify the subject of control and supervision of the start of an unscheduled inspection and preventive control and supervision at least a day before they begin, indicating the subject carrying out inspection and preventive control and supervision with a visit to the subject (object) of control and supervision.
The notice of the beginning of the inspection and preventive control and supervision with a visit to the subject (object) of control and supervision by the control and supervision body is handed over by hand, sent in the form of registered mail with a return receipt or by means of an electronic document signed with an electronic digital signature to the e-mail address the subject of control and supervision, if such an address was previously submitted by the subject to the body of control and supervision, or in any other available way.
19. Inspections according to a special procedure for conducting inspections, unscheduled inspections, as well as preventive control and supervision with a visit to the subject (object) of control and supervision are carried out during the working hours of the subject (object) of control and supervision, established by the internal labor regulations.
An unscheduled inspection may be carried out after hours (at night, weekends or holidays) due to the need to suppress violations immediately at the time they are committed.
20. Officials of the control and supervision body who arrived at the facility for inspection or preventive control and supervision with a visit to the subject (object) of control and supervision are required to present to the subject of control and supervision:
1) an act on the appointment of an inspection or preventive control and supervision with a visit to the subject (object) of control and supervision with a note on registration with the authorized body in the field of legal statistics and special records;
2) official ID or identification card;
3) if necessary, permission from the competent authority to visit sensitive facilities;
4) a medical permit, the availability of which is necessary for visiting objects, issued in the manner determined by the authorized body in the field of healthcare.

The beginning of an inspection or preventive control and supervision with a visit to the subject (object) of control and supervision is the date of delivery to the subject of control and supervision (the head of a legal entity or his authorized person, an individual) of an act on the appointment of an inspection or preventive control and supervision with a visit to the subject (object) ) control and supervision, as well as familiarization of the subject of control and supervision with a checklist indicating the points of requirements subject to verification and preventive control and supervision with a visit to the subject (object) of control and supervision.

Inspection and preventive control and supervision with a visit to the subject (object) of control and supervision can be carried out only by that official (persons) who is (are) indicated in the act on the appointment of an inspection or preventive control and supervision.

21. The timing of the inspection and preventive control and supervision with a visit to the subject (object) of control and supervision are established taking into account the scope of the work to be done, as well as the tasks set, and should not exceed:
1) for micro-entrepreneurship entities – no more than 5 working days and with an extension of up to 5 working days;
2) for subjects of small, medium and large businesses, as well as subjects of control and supervision that are not subjects of private entrepreneurship:
when conducting unscheduled inspections – no more than 10 working days and with an extension of up to 10 working days;
when conducting inspections carried out according to a special procedure, and preventive control and supervision with a visit to the subject (object) of control and supervision – no more than 15 working days and with an extension of up to 15 working days;
3) in the field of veterinary medicine, plant quarantine and protection, seed production, grain market – no more than 5 working days and with an extension of up to 5 working days;
4) in the field of compliance with the labor legislation of the Republic of Kazakhstan in terms of safety and labor protection at construction sites, taking into account their technical complexity:
relating to technically complex objects – no more than 5 working days and with an extension of up to 5 working days;
not related to technically complex objects – no more than 4 hours of a working day and with an extension of up to 8 hours of a working day.

22. When conducting an inspection or preventive control and supervision with a visit to the subject (target) of control and supervision, officials of the control and supervision body shall not have the right to:
1) check the fulfillment of the requirements that are not established in the checklists of this control and supervision body, and also if such requirements do not fall within the competence of the state body on behalf of which these officials act;
2) require the provision of documents, information, product samples, inspection samples of environmental objects and objects of the production environment, if they are not objects of verification or do not relate to the subject of verification;
3) take product samples, inspection samples of environmental objects and objects of the production environment for their research, testing, measurements without drawing up protocols on the selection of these samples, samples in the prescribed form and (or) in an amount exceeding the norms established by national standards, rules sampling, sampling and methods of their research, testing, measurement, technical regulations or other normative technical documents, rules and methods of research, testing, measurement that are valid until the day they come into force;
4) disclose and (or) disseminate information obtained as a result of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision and constituting a commercial, tax or other secret protected by law, except for cases provided for by the laws of the Republic of Kazakhstan;
5) exceed the established deadlines for conducting inspections and preventive control and supervision with a visit to the subject (object) of control and supervision;
6) conduct an inspection or preventive control and supervision with a visit to the subject (object) of control and supervision, in respect of which an inspection or preventive control and supervision was previously carried out with a visit to the subject (object) of control and supervision by its higher (lower) body or other state body according to the same question for the same period;
7) to carry out activities that are costly in nature for the purpose of state control at the expense of the audited entities.

23. Based on the results of the inspection, an official of the control and supervision body draws up:
1) an act on the results of the audit;
2) an order to eliminate the identified violations in cases of violations.

24. The completion of the inspection period is considered the day of delivery to the inspected subject of the act on the results of the inspection no later than the deadline for the end of the inspection specified in the act on appointment of the inspection.

25. Based on the results of preventive control and supervision with a visit to the subject (object) of control and supervision, carried out on the basis of a risk assessment system, an official of the control and supervision body, in the event of violations, draws up an order to eliminate the identified violations.