Comment to article 832. Time limit for appeal, filing an appeal petition by the prosecutor 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 may be filed within ten days from the date of delivery of the decision, and if the persons specified in Articles 744, 745, 746, 747, 748 and 753 of this Code did not participate in the consideration of the case, from the date of its receipt.
2. Missing the deadline for filing a complaint or bringing an appeal by the prosecutor is not grounds for refusing to accept them for consideration. The terms and their significance for the proper resolution of the case are checked by the court regardless of the content of the complaint, the appeal petition of the prosecutor.
3. A complaint or appeal filed by a prosecutor in a direction that worsens the situation of a person brought to administrative responsibility or a person against whom administrative proceedings have been terminated may be filed within one year from the date of entry into force of a ruling on an administrative offense, an order on the need to pay a fine, or a decision of a higher authority (official) on complaint or protest.
Part 1 of the commented article establishes a 10-day period from the date of delivery of the resolution. This period begins to run from the day following the day of delivery or receipt of a copy of the resolution by the person authorized to appeal this document. Here it is necessary to follow the rules for calculating the procedural time limits established by art. 739 of the Administrative Code. If the persons specified in Articles 744, 745, 746, 747, 748 and 753 of the Administrative Code did not participate in the consideration of the case, from the date of receipt of the decision.
Practice has confirmed the optimality of this period to provide a real opportunity for interested persons to appeal against illegal, in their opinion, decisions. This calculation of the time limit creates an additional guarantee that the person entitled to appeal the court's decision has sufficient time to analyze the text of the decision and prepare a complaint or appeal by the prosecutor.
Attention should be paid to the starting point of the specified dates: the moment of delivery and receipt of the resolution. Therefore, the provision of art. 743 of the Administrative Code is crucial in the interpretation of this article.
A more detailed comment is provided to art. 826-2 of the Administrative Code.
Part 2. A serious human rights message is the inclusion in the Code of norms regarding the consideration of a case, despite missing the deadline for filing a complaint, and the filing of an appeal by the prosecutor. According to the commented norm, this is not a reason to refuse their acceptance for consideration.
Upon receipt of a complaint with a missed deadline for filing it, regardless of the reasons for this, the judge takes measures to suspend the execution of the decision that has formally entered into force, but is actually challenged and subject to review. Here, the court is guided by Article 834 of the Administrative Code, according to which the filing of a complaint within the prescribed period suspends the execution of the decision to impose an administrative penalty until the complaint is considered.
In addition, the prosecutor has the right to suspend the execution of the decision on the imposition of an administrative penalty for the duration of the verification of its legality, to give written instructions to authorized officials and bodies (except the court) on the conduct of an additional audit.
This is done so that, based on the results of the audit, he can submit an appeal to the relevant court for the cancellation or amendment of the decision and to minimize the delay in the execution of the appealed act. If the fears are not confirmed, he cancels the suspension of the execution of the resolution.
If the deadline is missed, an application for reinstatement of this deadline must be formally submitted, but in practice this condition is not always fulfilled.
This does not exempt the court from considering both the reasons for the validity of such a pass and the significance of the pass for the proper resolution of the case. These circumstances are established and verified by the court regardless of the content of the complaint, the appeal petition of the prosecutor. This rule is also valid for reviewing an administrative case decision and prescribing the need to pay a fine in accordance with Chapter 43-1 of the Administrative Code.
In judicial practice, valid reasons for missing the deadline for filing a complaint are recognized as: insufficient legal awareness of a citizen about the procedure for filing complaints, temporary departure from permanent residence, confluence of family circumstances, the introduction of restrictive measures (quarantine), etc.
Part 3 of the commented article limits the time limits for filing a complaint or appeal by a prosecutor designed to worsen the situation of a person brought to administrative responsibility or a person against whom administrative proceedings have been terminated to one year from the date of entry into force of a ruling on an administrative offense, an order on the need to pay a fine, a decision of a higher authority (official) on complaint or protest.
The one-year term limit has existed for many years. If we compare the norm with a similar norm in the CPC, then we should note a more repressive approach in administrative legislation in comparison with criminal procedure, since in the CPC this period is two times less (6 months) than in the administrative one.
The second important aspect is that the time limit for filing a complaint or appeal by a prosecutor in the direction of improving the situation of a person brought to administrative responsibility or a person against whom administrative proceedings have been terminated is not limited.
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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