Comment to article 831. The procedure for appealing and reviewing a prosecutor's appeal against a court decision The Code of the Republic of Kazakhstan on Administrative Offences  

   1. A complaint or appeal petition of a prosecutor against a court decision shall be sent to the court that issued the decision, which must, within three days from the date of receipt of the complaint or appeal petition of the prosecutor, send them with all the case materials to a higher court.

     2. In cases of appeal, bringing an appeal petition by the prosecutor against a ruling on the fact of contempt of court in accordance with the second part of Article 830 of this Code, the court shall attach to the ruling an extract from the minutes of the court session regarding the establishment of the fact.

     3. Excluded by the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI.

     4. A complaint or appeal filed by a prosecutor against a judge's decision to impose a penalty in the form of administrative arrest shall be sent to a higher court on the day of receipt of the complaint or appeal filed by the prosecutor.

     5. Excluded by the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI  

     Part 1. The establishment of a general procedure for filing a complaint, an appeal petition by the prosecutor through the judge who issued the decision, is aimed at ensuring the rights of participants in the proceedings on an administrative offense.  

     The fact of filing a complaint or appeal petition of the prosecutor obliges the judge to send it with all the case materials to a higher court within 3 days from the date of receipt of the complaint or appeal petition of the prosecutor.  

     This approach is similar to that used by the legislator in Part 1 of Article 826-2 of the Administrative Code in terms of regulating the procedure and timing of appeals, appeals against decisions in the case of an administrative offense, orders on the need to pay a fine by a higher authority (official). Accordingly, a more detailed comment can be found by referring to Part 1 of art. 826-2 of the Administrative Code.  

     Part 2. As we previously stated, the actions of the court (judge) to impose an administrative penalty on the guilty person directly in the courtroom should be reflected in the protocol of the trial. These actions of the court of appeal and cassation instances are recorded in the minutes of the court session only in cases where such a protocol is kept in accordance with the law.

     In cases of appeal, bringing an appeal petition by the prosecutor against a ruling on the fact of contempt of court, in accordance with Part 2 of Article 830 of the Administrative Code, the court shall attach to the ruling an extract from the minutes of the court session regarding the establishment of the fact. Procedural legislation (along with the Administrative Code, also criminal procedure and civil procedure) knows the rules when it is possible to keep a short protocol or it is replaced by audio or video recordings.  

     The use of audio and video recordings by the court in the courtroom is regulated by Article 803 of the Administrative Code and it is widespread in all types of legal proceedings - civil and criminal - and is also regulated by articles 257 of the CPC, 328 of the CPC. The general regulation of the specifics of bringing to administrative responsibility for contempt of court is regulated by the norms of Chapter 44-1 of the Administrative Code.

     Part 4 has serious human rights potential, which instructs the court to send the received complaint, the prosecutor's appeal against the judge's decision to impose a penalty in the form of administrative arrest to a higher court on the day they are filed.

     It should be remembered here that in accordance with Article 808 of the Administrative Code, the protocol, and in the case provided for in Part 9 of Article 803 of the Administrative Code, a copy of the protocol (prosecutor's decision) on an administrative offense, the responsibility for which may entail the application of administrative arrest, administrative expulsion of a foreigner or stateless person from the Republic of Kazakhstan, is sent to the judge immediately after its compilation. That is, cases in which arrest can be applied as a penalty are sent to court for consideration as soon as possible.  

     This is due to the desire to limit as much as possible the non-judicial period of a person's stay in isolation (arrest), which corresponds to international standards and practices. It is the prerogative of the court and the legislator to quickly verify the legality and validity of the use of arrest and properly ensure the constitutional right of a citizen to freedom and personal inviolability.  

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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