Instruction on the consideration of cases of administrative offenses in the sphere of banking legislation (approved by Resolution of the Board of the National Bank of the Kyrgyz Republic of 26 August 2015 No. 49/9) — NBKR — KG

REPEALED in accordance with Resolution of the Board of the National Bank of the Kyrgyz Republic of 19 December 2018 No. 2018-P-12/55-6-(NPA)


	Appendix Approved by Resolution of the Board of the National Bank of the Kyrgyz Republic of 26 August 2015 No. 49/9

Instruction on the consideration of cases of administrative offenses in the sphere of banking legislation

(As amended by Resolutions of the Board of the National Bank of the Kyrgyz Republic of 11 April 2016 No. 17/3, 28 December 2016 No. 51/2

The Instruction on the consideration of cases of administrative offenses in the sphere of banking legislation (hereinafter - the Instruction) has been developed in accordance with the Code of the Kyrgyz Republic on Administrative Responsibility, the Laws of the Kyrgyz Republic "On the National Bank of the Kyrgyz Republic" and "On the Payment System of the Kyrgyz Republic". This Instruction regulates the procedure for proceedings in cases of administrative offenses in the sphere of banking legislation.

1. General provisions

Responsibility for the commission of an administrative offense in the sphere of banking legislation may be imposed on an official or on another natural person, as well as a legal entity in the cases and within the limits provided for by Articles 357, 358, 359, 360, 361, 362, 363 of the Code on Administrative Responsibility (hereinafter - the Code).
The structural subdivisions of the National Bank of the Kyrgyz Republic (hereinafter - the Authorized Subdivision) authorized to initiate a case of an administrative offense are:

1) Structural subdivisions of the supervisory block that have discovered the fact of a violation - for offenses provided for by Articles 357-362 of the Code;

2) The Financial Statistics and Reporting Department - for offenses provided for by Article 361 of the Code;

3) The Cash Department - for offenses provided for by Articles 362 and 363 of the Code;

4) Regional departments and the Representative Office of the National Bank in the Batken region - for offenses provided for by Articles 357-363 of the Code.

5) The Payment Systems Department - for offenses provided for by Articles 357-359 and 505-18 – 505-20 of the Code.

(As amended by Resolutions of the Board of the National Bank of the Kyrgyz Republic of 11 April 2016 No. 17/3, 28 December 2016 No. 51/2)

The Chairman of the National Bank of the Kyrgyz Republic and the Deputy Chairman of the National Bank of the Kyrgyz Republic authorized in accordance with an order of the National Bank of the Kyrgyz Republic (hereinafter - the Authorized Person) have the right to consider a case of an administrative offense and impose an administrative penalty (fine) by issuing a resolution in the case of an administrative offense.
An administrative penalty (fine) may be imposed on:

an official or another natural person within a period not later than six months from the day of commission of the administrative offense, and in case of a continuing violation - not later than six months from the day of discovery of the fact of the administrative offense;
a legal entity not later than one year from the day of discovery of the administrative offense.

2. Procedure for initiating a case of an administrative offense

The ground for initiating a case of an administrative offense is the discovery by employees of the Authorized Subdivision of facts indicating the existence of an event of an administrative offense.

Facts of an administrative offense may be discovered on the basis of materials received from law enforcement bodies, as well as from other state bodies, local self-government bodies, from public associations, containing data indicating the existence of an event of an administrative offense; reports and applications of natural and legal persons, as well as reports in the mass media (including on the internet), containing data indicating the existence of an event of an administrative offense, direct discovery of sufficient data indicating the existence of an event of an administrative offense.

In case of discovery of a fact of an administrative offense in the sphere of banking legislation, the Authorized Subdivision shall draw up a protocol on the administrative offense.

A case of an administrative offense is considered initiated from the moment:

of drawing up the protocol on the administrative offense;
of issuing a ruling on the initiation of an administrative offense. The forms of the protocol on the administrative offense and the ruling on the initiation of an administrative offense are attached to the Instruction (Appendix 1 and 4).

If the person held administratively liable refuses to sign the protocol on the administrative offense, the reasons for the refusal must be indicated in the protocol on the administrative offense. The person held administratively liable has the right to submit explanations and comments on the content of the protocol on the administrative offense, as well as to set out the motives for their refusal to sign it.
The Authorized Subdivision shall send to the Authorized Person for consideration the protocol on the administrative offense together with other materials (documents) containing evidence of the administrative offense or explanations of the person held administratively liable, within twenty-four hours from the moment of its drawing up.
If the Authorized Person, during preparation for consideration of the case of an administrative offense, discovers deficiencies related to the incorrect (improper) drawing up of the protocol on the administrative offense and/or deficiencies in the execution of other materials necessary for consideration of the case of an administrative offense, the Authorized Subdivision must correct all discovered deficiencies in the protocol on the administrative offense and/or in other case materials within three days from the day of their receipt from the Authorized Person. The Authorized Subdivision must re-send the protocol on the administrative offense and other case materials to the Authorized Person within twenty-four hours from the day of elimination of the deficiencies of the protocol on the administrative offense and other case materials.
Upon discovery of offenses provided for by Article 363 of the Code, the Authorized structural subdivision shall draw up a protocol on the administrative offense in the procedure established by the Code and this Instruction, in accordance with Articles 508 and 556-1 of the Code. The protocol on the administrative offense and the case materials shall be transferred to the court according to jurisdiction within twenty-four hours from the moment of its drawing up, as well as in the procedure provided for by the Code.

3. Preparation for consideration of a case of an administrative offense

The Authorized Person, when preparing for consideration of a case of an administrative offense with the person held administratively liable, shall clarify the following questions:

the competence to consider this case;
whether there are circumstances excluding the possibility of consideration of this case by the Authorized Person;
the correctness/propriety of drawing up the protocol on the administrative offense, as well as the execution of other case materials;
the presence of circumstances excluding proceedings in the case;
the sufficiency of the materials available in the case for its consideration on the merits;
the presence of motions and recusals.

The Authorized Person, when preparing for consideration of a case of an administrative offense, shall adopt the following decision:

on setting the time and place for consideration of the case;
on summoning persons, requesting necessary additional materials in the case, appointing an expert examination;
on postponing the consideration of the case;
on returning the protocol on the administrative offense and other case materials to the Authorized Subdivision in cases where the protocol on the administrative offense and other case materials were drawn up and executed by unauthorized persons, the protocol on the administrative offense was drawn up incorrectly/improperly and other case materials were executed improperly, or the submitted materials are incomplete and cannot be supplemented during the consideration of the case;
on transferring the protocol on the administrative offense and other case materials for consideration according to jurisdiction, if the consideration of this case does not fall within its competence or a ruling on recusal of the Authorized Person has been issued.

The Authorized Person, when preparing for consideration of a case of an administrative offense, has the right to adopt, in the form of a resolution, a decision to terminate the proceedings if there are circumstances provided for by Article 549 of the Code.
The Authorized Person is not entitled to consider a case of an administrative offense if the Authorized Person is a relative of the person held administratively liable, the victim, their legal representatives, defense counsel or representative, and if there are other circumstances provided for by the Code.

4. Persons participating in the proceedings of a case of an administrative offense

In the proceedings of a case of an administrative offense, from the moment of drawing up the protocol on the administrative offense, the following may participate:

to provide legal assistance to the person held administratively liable - defense counsel, representative (attorney);
to provide legal assistance to the victim - the victim's representative ("victim" - a natural or legal person who has suffered property or moral harm as a result of an administrative offense).

Defense counsel and the representative have the right to familiarize themselves with all case materials, present evidence, submit motions and recusals, participate in the consideration of the case, and exercise other procedural rights granted to them by the Code.
Witnesses, experts and other persons may also participate in the proceedings of a case of an administrative offense in accordance with and in the procedure provided for by the legislation of the Kyrgyz Republic.

Employees of structural subdivisions of the National Bank may be engaged as experts.

5. Procedure for consideration of a case of an administrative offense

A case of an administrative offense shall be considered within a ten-day period from the day the Authorized Person receives the protocol on the administrative offense and other case materials, in the presence of the person held administratively liable or their representative.

In the absence of the person held administratively liable or their representative, the case of an administrative offense may be considered if there is data on their timely notification of the place and time of consideration of the case, and if no motion for postponement of the case has been received from them.

The Authorized Person may extend the period for consideration of the case by not more than ten days in case of receipt of motions from participants in the proceedings of the case of an administrative offense or if additional clarification of the circumstances of the case is necessary.
During the consideration of a case of an administrative offense, a protocol of the consideration of the case of an administrative offense shall be kept without fail, which shall be signed by the secretary of the session on the case of the administrative offense and the Authorized Person.

The protocol of the consideration of the case of an administrative offense shall indicate:

the date and place of consideration of the case;
the surname, name, patronymic, position of the Authorized Person;
which case is being considered;
information on the appearance of persons participating in the consideration of the case;
recusals, motions and the results of their consideration;
explanations, testimony, statements and conclusions of the relevant persons participating in the consideration of the case;
documents examined during the consideration of the case.

The Authorized Person, at the beginning of the consideration of the case of an administrative offense:

announces who is considering the case, which case is subject to consideration, who and on the basis of which normative act is held liable;
verifies the appearance of the person held administratively liable, as well as other persons participating in the consideration of the case;
establishes the identity of the participants in the proceedings of the case and checks the powers of the representative(s) of the person held administratively liable, defense counsel;
clarifies the reasons for the non-appearance of the participants in the proceedings of the case and adopts a decision on consideration of the case in the absence of the said persons or on postponement of the consideration;
explains to the persons participating in the consideration of the case their rights and obligations;
resolves the submitted recusals and motions;
announces the protocol on the administrative offense, and if necessary, other case materials.

During the consideration of a case of an administrative offense, the Authorized Person, in order to correctly resolve the case, shall without fail clarify:

whether an administrative offense was committed;
whether this person is guilty of committing it;
whether they are subject to administrative liability;
whether there are circumstances mitigating and aggravating liability;
whether material damage has been caused and other circumstances necessary for the correct resolution of the case;
the explanations of the person held administratively liable, the testimony of other persons participating in the proceedings of the case are heard;
other evidence is examined.

6. Procedure for issuing a resolution in a case of an administrative offense

The Authorized Person, based on the results of consideration of the case of an administrative offense, shall issue a resolution in the case:

on imposing a fine;
on terminating the case;
on transferring the consideration of the case according to jurisdiction (to a judge or a body, official authorized to impose an administrative penalty of a different type or amount for this offense).

The forms of resolutions and rulings are attached to the Instruction (Appendices 1-6).

The resolution shall be announced immediately upon completion of the consideration of the case.

A copy of the resolution in the case of an administrative offense must be handed to the person in respect of whom it was issued, against receipt or sent to them within three days (of which a corresponding note is made in the case) and enters into legal force upon expiration of the period for appeal, if it has not been appealed in the established procedure.

A copy of the resolution may be handed to the victim upon their request.

7. Procedure for appealing the proceedings in the case and the resolution on the administrative offense

The person in respect of whom the proceedings in the case of an administrative offense were conducted has the right to appeal the proceedings in the case of an administrative offense to the Chairman of the National Bank (in case the proceedings in the case were conducted by the Deputy Chairman of the National Bank) or to the court.

The person in respect of whom the proceedings in the case of an administrative offense were conducted has the right to obtain copies of the protocols and other materials related to the proceedings in the case to protect their rights during the consideration of their complaint.

The Chairman of the National Bank, based on the results of consideration of the complaint, shall adopt a decision in the form of a resolution on granting the complaint or on refusing to grant it.
A complaint against a resolution in a case of an administrative offense may be sent to the Chairman of the National Bank (in case the resolution in the case of an administrative offense was issued by the Deputy Chairman of the National Bank) or to the court within ten days from the day of handing a copy of the resolution or announcing it to the person in respect of whom the resolution on imposing an administrative penalty was issued.

In case of missing the appeal period for valid reasons, the Chairman of the National Bank, upon the application of the person in respect of whom the resolution was issued, has the right to restore the period for filing the complaint.

Filing a complaint suspends the execution of the resolution in the case of an administrative offense until the complaint is considered.

A complaint against a resolution in a case of an administrative offense must be considered within a ten-day period from the day of receipt.
The Chairman of the National Bank, having considered a complaint against a resolution in a case of an administrative offense, has the right to:

leave the resolution unchanged, the complaint without satisfaction;
change the resolution, without imposing an administrative penalty and/or in another manner, without worsening the position of the person in respect of whom the resolution was issued;
cancel the resolution and return the case for a new consideration in case of a substantial violation of the procedural requirements of the proceedings of the case of an administrative offense;
cancel the resolution and send the case for consideration according to jurisdiction in case, during the consideration of the complaint, it is clarified that the National Bank is not entitled to consider the case;
cancel the resolution and terminate the case if there are circumstances provided for by Article 549 of the Code.

The decision based on the results of consideration of the complaint shall be issued in the form of a resolution.

A copy of the resolution on the complaint against the resolution in the case of an administrative offense shall be sent within three days to the person in respect of whom it was issued, and to the victim - upon their request.

The resolution on an administrative offense may also be appealed in court within the periods and in the procedure established by the Code.

8. Execution of the resolution on imposing a fine

The bringing of the resolution on imposing an administrative penalty to execution is assigned to the Authorized Subdivision of the National Bank whose competence includes this issue.
The resolution on imposing a fine must be brought to execution within six months from the day of its entry into legal force. The running of the limitation period is interrupted when the person held administratively liable evades execution of the resolution on imposing a fine and when they are granted a deferral from execution.
The fine must be paid by the person held administratively liable not later than one month from the day of handing to them the resolution on imposing the fine.
In case of appeal of the resolution on imposing a fine, the fine must be paid by the person held administratively liable not later than fifteen days from the day of their notification that the complaint was left without satisfaction.
If there are circumstances due to which execution of the resolution on imposing a fine is impossible within the period provided for by paragraph 32 of this Instruction, the Authorized Person has the right to defer its execution for a period of up to one month.
If the person held administratively liable fails to pay the fine within the period specified in paragraph 32 of this Instruction, the resolution on imposing the fine shall be sent to the administration of the legal entity where the person held administratively liable works or where they receive remuneration for the forced withholding of the amount of the fine from the wages of the person held administratively liable, or other types of income in the procedure determined by the legislation of the Kyrgyz Republic. The withholding of the administrative fine shall be carried out within a period not exceeding one month from the day of handing the resolution on imposing the fine.

If it is impossible to recover the fine from the wages or other types of income of the person held administratively liable, the resolution on imposing the fine shall be sent to the judicial executor for forced execution in the procedure provided for by the legislation of the Kyrgyz Republic.

If the administrative fine is not paid within the period provided for by paragraph 32 of this Instruction, the Authorized Subdivision of the National Bank shall send the resolution on imposing the administrative fine to a bank or other credit institution for recovery from the monetary funds or income of the legal entity by writing off from the accounts of this person in accordance with the legislation of the Kyrgyz Republic.

The bank or other credit institution is obliged to transfer the amount of the administrative fine to the corresponding bank institution indicated in the resolution on imposing the administrative fine. If there are no monetary funds in the accounts of the legal entity, the resolution on forced recovery of the amount of the fine shall be sent to the judicial executor for foreclosure on the property of the legal entity in accordance with the legislation of the Kyrgyz Republic.

The Authorized Subdivision of the National Bank whose competence includes this issue, in accordance with the Code and the Law "On Enforcement Proceedings and the Status of Judicial Executors in the Kyrgyz Republic", shall send the resolution on imposing the fine to the judicial executor for its execution.

The resolution on imposing a fine, under which the recovery of the fine has been made in full, with a note on execution, shall be returned to the Authorized structural subdivision for storage.


	Appendix 1

PROTOCOL on the administrative offense


______		"_" ______ 20
(place of drawing up)

(name of the Authorized subdivision of the national bank)

represented by ______

(full name of the employee(s) of the National Bank, position, number of the service certificate)

Drew up this protocol on the administrative offense in the sphere of

banking legislation of the Kyrgyz Republic on the part of

(full name of the person held administratively liable)

who carried out ______

which constitutes a violation of Article ______ CAO.

Additional information about the offender:

Passport data: ______ Date of birth: ______

Place of birth: ______

Place of registration: ______

Place of actual residence: ______

Address where the offense was committed ______

Date and time of commission of the offense: ______

Note: ______

(explanation, act on refusal to sign)

Contact data: ______


On the part of the National Bank:
______	______	______
(Full name)	(Position)	(signature)

______	______	______
(Full name)	(Position)	(signature)

Person held administratively liable:
______	______	______
(Full name)	(Position)	(signature)

Note:

A person held administratively liable has the right to be present at the consideration of the case, to familiarize himself with the case materials, to give explanations, to present evidence, to file motions, to use the legal assistance of a defense attorney, to speak in his native language or another language he commands, to use the services of an interpreter if he does not know the language, and to appeal the decision in the case (Article 570 of the CAO).
When this protocol was drawn up, the Offender was informed of his rights and duties provided for by Article 570 of the CAO, namely:

Article 570. Rights and duties of the offender

A person held administratively liable has the right to familiarize himself with the case materials, to give explanations, to present evidence, to file motions, to notify his relatives and close persons of the administrative detention, to use the legal assistance of a defense attorney, to speak in his native language or another language he commands, and to use the services of an interpreter if he does not command the language in which the proceedings are conducted, and to appeal the decision in the case.

A case of an administrative offense is considered in the presence of the person held administratively liable. In the absence of this person, the case may be considered only in the cases provided for by point 3 of Article 559 of the CAO, or when there is data on his timely notification of the place and time of the consideration of the case and if no motion for postponement of the consideration of the case has been received from him. In the event of his evasion of appearance upon the summons of a court or an internal affairs body, this person may be subjected to compulsory bringing, provided for by Article 51 of the CAO.


I have familiarized myself with the rights and duties of the offender:
______	(signature, date)


	Appendix 2

DECISION on the imposition of a fine


______		"_" ______ 20
(place of issuance)		(date of issuance)

(Full name of the authorized person)

(Full name/name of the person held administratively liable)

"___" ______ year of birth, place of birth ______

place of work ______

established the fact ______

(circumstances established during the consideration of the case)

which constitutes a violation of the following norms of the banking legislation of the Kyrgyz Republic:

(articles which were violated)

and decides to impose on ______

(Full name, passport data, place of registration, place of actual residence)

a monetary fine in accordance with Article ______ of the Code of the Kyrgyz Republic

"On Administrative Liability", in the amount of

______ (______)

(amount in figures) (amount in words)

soms, with the amount of the fine to be paid into the state budget.

This decision enters into force after the expiry of the period for appeal, if it

was not appealed, in accordance with point 8 of Article 589 of the CAO. The period for appealing

the decision is established in accordance with Article 597 of the CAO.


Authorized person	______
	(Full name of the authorized person) (signature) (date)

I received a copy of the decision	______
	(Full name of the offender) (signature) (date)


	Appendix 3

DECISION on the termination of a case of an administrative offense


______		"___" ______ ____
(place of issuance)		(date of issuance)

I, ______

(Full name, position of the person issuing the decision):

having considered the materials of case No. _______, on an administrative offense in the field of

banking legislation on the part of ______

(Full name of the person held administratively liable, address)

established ______

(circumstances established during the consideration of the case)

which does not constitute a violation of ______

(article, normative act)

decides to terminate the case of the administrative offense in respect of

(name or full name of the person held administratively liable)

for the absence of the elements of a violation of the banking legislation of the Kyrgyz Republic.


______
(Full name of the person who issued the decision)

	______
	(signature)


	Appendix 4

RULING


"_" ______ 20		______

I, ______,

(Full name, position of the person issuing the ruling)

having considered the conclusion/official memorandum, other documents, concerning the initiation of a case

of an administrative offense under Article 363 of the Code of the Kyrgyz Republic on

Administrative Liability on the fact of discovery/commission, guided by

Articles 363, 547-1 of the Code of the Kyrgyz Republic on Administrative Liability,

HAVE RULED:

To initiate a case of an administrative offense.
For the authorized subdivision to conduct an administrative investigation.


______
(Full name, signature of the official)


	Appendix 5

RULING on the transfer of the consideration of a case of an administrative offense by jurisdiction


______		"___" ______ ____
(place of issuance)		(date of issuance)

I, ______

(Full name, position of the person issuing the Ruling)

having considered the materials of case No. _____, on an administrative offense in the field of

banking legislation on the part of ______

(Full name of the person held administratively liable, address)

having established ______,

(circumstances established during the consideration of the case)

which constitutes a violation of ______

(article, normative act)

decide to transfer case No. _____ on the administrative offense on the part of

(name or full name of the person held administratively liable)

for consideration to ______

(name of the judge, body competent to impose for this offense

an administrative penalty)

by jurisdiction.


______
(Full name of the person who issued the Ruling)

	______
	(signature)


	Appendix 6

RULING on the postponement of the consideration of a case of an administrative offense


______		"___" ______ ____
(place of issuance)		(date of issuance)

I, ______

(Full name, position of the person issuing the Ruling)

having considered the materials of case No. ______, on an administrative offense in the field of

banking legislation on the part of ______

(Full name of the person held administratively liable, address)

(article, normative act)

established ______

(the grounds for postponement are set out: motions of the parties, the need to request

additional materials, the involvement of interested persons in the case, etc.)

and ruled that:

in case No. _______ the hearings are to be postponed;
to schedule the consideration of the case for "_" ______ 20.
to provide ______ additional documents

(to whom)

by the deadline of "_" ______ 20.

to involve in the consideration of the case ______

(Full name of the person who issued the Ruling)


	______
	(signature)

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