Comment to article 833. The content of the complaint, the appeal petition of the prosecutor The Code of the Republic of Kazakhstan on Administrative Offences
1. The complaint shall be filed, the appeal petition of the prosecutor shall be brought in writing or in the form of an electronic document certified by an electronic digital signature, and they must specify:
1) the name of the court to which the complaint is filed, the appeal petition of the prosecutor;
2) surname, first name and patronymic (if any) (exact name of the legal entity), place of permanent residence or location (postal address) of the applicant of the complaint, the prosecutor who brought the appeal petition;
3) the name of the court against whose decision the complaint is filed, the appeal petition is brought.;
4) the content of the court decision being appealed or reviewed at the appeal request of the prosecutor, as well as the reasons why the person who filed the complaint, the prosecutor who brought the appeal request, consider the court decision to violate their rights or freedoms;
5) a clearly formulated request, a requirement of the person who filed the complaint, the prosecutor who brought the appeal.
2. A complaint or an appeal petition shall be signed by the persons specified in Articles 744, 745, 746, 747 and 748 of this Code, by the prosecutor. A complaint filed on behalf of a legal entity is signed by its representative or another authorized person.
3. If a complaint is filed, the appeal petition of the prosecutor is brought in the interests of another person, they should indicate the first and last name, place of permanent residence or location (postal address) of the person in whose interests the complaint is filed, the appeal petition is brought. A document confirming the authority is attached to the complaint.
4. The complaint shall be filed, the appeal petition of the prosecutor shall be brought in two copies with the attachment of copies of the appealed, reviewed court decision, as well as other documents in support of the arguments given in the complaint, appeal petition.
5. If a complaint filed or an appeal filed by a prosecutor does not meet the requirements provided for in parts one and two of this article, they are considered filed, but they are returned with an indication of the deadline for completion. If the complaint or appeal petition of the prosecutor has not been submitted to the court after being resubmitted within the specified period, they are considered unsubstantiated.
Part 1. This article and, accordingly, the requirements for the complaint (prosecutor's petition) are fundamental not only for the appeal proceedings, but also for the entire Code, since references to it are ubiquitous under the Code.
It should be remembered here that administrative law regarding the review of decisions based on the results of its initial review is very democratic and allows it to be done repeatedly, with the exception of the review of an administrative case by a specialized board of the Supreme Court.
When drafting a complaint or appeal motion, the prosecutor should pay attention to the reasoning of the arguments given in it with references to laws and other regulatory legal acts that, in the opinion of the person filing the complaint or appeal motion, were not properly applied or not applied or applied incorrectly during the review by the court.
At the same time, these persons must confirm their arguments with the evidence available in the case or by providing or referring to new evidence that was not previously the subject of research (for objective or other reasons). Persons filing a complaint or an appeal petition must also indicate this in their appeal.
In accordance with the Law of the Republic of Kazakhstan dated January 7, 2003 "On Electronic Document and electronic Digital Signature" and the Law of the Republic of Kazakhstan dated June 30, 2017 "On the Prosecutor's Office", as well as the norms of the Administrative Code, a complaint is filed, and the prosecutor's appeal is submitted in writing or in the form of an electronic document certified by an electronic digital signature. This greatly simplifies the process and saves time for its participants. Currently, this function is implemented through the capabilities of the Judicial Cabinet on the Supreme Court's website - http://office.sud.kz /.
As the mandatory content of the complaint, petition, the legislator identified a number of provisions specified in the commented article, some of which we considered necessary to comment on.
The appeal or petition of the prosecutor must indicate the name of the court to which the complaint or petition is addressed.
The name of the court is essential, it is not just a formalism, as it determines the jurisdiction of an administrative case, including a specific court, taking into account the specifics of the Administrative Code.
For more details, see the commentary to Articles 827 and 829-1 of the Administrative Code.
In addition, the complaint or petition shall specify the surname, first name and patronymic (if any), the exact name of the legal entity, the place of permanent residence or location (postal address) of the applicant of the complaint, the prosecutor who brought the appeal petition. Such a person may be the subject on whose behalf the complaint or petition is filed.
The complaint or petition must specify the name of the court against whose decision the complaint is filed, the appeal petition is brought, as well as the contested judicial act with the date of its issuance. Although the procedural law does not provide for the requirement to indicate the names of the parties and the details of the case in the appeal or petition, a reference to them is desirable. Such information is necessary for the timely and correct preparation of the case for referral to a higher authority, as well as for its further consideration.
As the main content of the complaint or petition, the legislator indicates the inclusion in the appeal of what is the illegality or unreasonableness of the court decision, in what part should the legality of the court decision being appealed or reviewed at the appeal request of the prosecutor be checked, and what changes are required by the person filing the complaint, petition, as well as other reasons why the person filing The prosecutor who filed the appeal considers the court's decision to violate their rights or freedoms. In conclusion, the person filing the complaint or petition must clearly formulate the request or requirement.
In accordance with parts 2 and 3, appeals and petitions must contain an indication of the date of filing, as well as the signature of the person who submitted them.
If a complaint is filed, the prosecutor's appeal petition is brought in the interests of another person, they should indicate the first and last name, place of permanent residence or location (postal address) of the person in whose interests the complaint is filed, the appeal petition is brought. A document confirming the authority is attached to the complaint.
A complaint filed on behalf of a legal entity is signed by its representative or another authorized person, respectively, a power of attorney or other document certifying the representative's authority must be attached, if there is no such document in the case.
The specifics of the procedural status of a representative and other participants in administrative proceedings are determined by Chapter 38 of the Administrative Code. In this part, it is necessary to refer to the comments to the articles in this chapter.
In accordance with part 4, the complaint is filed, the appeal petition of the prosecutor is brought in two copies with copies of the appealed, reviewed court decision, as well as other documents in support of the arguments given in the complaint, appeal petition.
This requirement of the law is relevant only for the written (paper) form of submission of relevant appeals.
The rather advanced and modern approach of the legislator, outlined in part 5 of the commented article, deserves special attention.
In particular, if a complaint filed or an appeal filed by a prosecutor does not meet the requirements provided for in parts 1 and 2 of the commented article, they are considered filed, but they are returned with an indication of the deadline for completion.
If the complaint or appeal petition of the prosecutor has not been submitted to the court after being resubmitted within the specified period, they are considered not filed. This is a very original, human-oriented and new approach for the administrative legislation of the CIS countries.
If the complaint does not meet the requirements of the commented article, the complainants have the opportunity to finalize it. In this case, such a complaint is still considered filed, but it is returned with an indication of the deadline for additional registration. And only if the complaint has not been resubmitted or submitted to the authority (official) within the specified period, it is considered not filed.
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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