Comment to article 835. Terms of consideration of the complaint, appeal petition of the prosecutor against the court decision The Code of the Republic of Kazakhstan on Administrative Offences
1. A complaint and an appeal petition of a prosecutor against a court decision are subject to consideration within ten days from the date of their receipt.
2. A complaint, an appeal petition of the prosecutor against the decision on administrative arrest, if the person brought to justice is serving administrative arrest, are subject to consideration within one day from the moment of their submission, bringing.
3. In cases of receipt of petitions from participants in the proceedings on an administrative offense or the need for additional clarification of the circumstances of the case, the time limit for consideration of the complaint or appeal petition of the prosecutor may be extended by the court considering the case, but not more than ten days. The court is obliged to suspend the term of consideration of the complaint, the appeal petition of the prosecutor if it is impossible to consider it (him) until the resolution of another case being considered in civil, criminal or administrative proceedings. The decision to extend and/or suspend the term is made in the form of a reasoned ruling.
Part 1 of the commented article establishes that the complaint, the appeal petition of the prosecutor against the court order are subject to consideration within ten days from the date of their receipt.
The optimal time from the point of view of combining the promptness of consideration of the complaint, the appeal petition and the thoroughness of checking the legality and validity of the court decision is a guarantee of respect for the rights of citizens and organizations.
The dominant concept among practicing lawyers and judges is the assertion that this period is not considered sufficient for a large number of cases that pose significant difficulties due to the complexity of regulated legal relations. For example, tax cases or cases related to torts in the field of subsoil use, environmental protection, etc.
Part 2 establishes a special procedure for calculating the time limit for consideration of a complaint or appeal by a prosecutor: within one day from the moment they are filed or brought. The shortened term is due, firstly, to the fact that the court's decision on administrative arrest is being appealed.
Secondly, the fact that the person brought to administrative responsibility is serving an administrative arrest. In this case, we are talking about the constitutional right of a citizen to freedom and personal inviolability, and a delay in correcting a possible judicial error is unacceptable.
In accordance with part 3 of the commented article, in case of receipt of petitions from participants in the proceedings or the need for additional clarification of the circumstances of the case, the time limit for consideration of the complaint or appeal petition of the prosecutor may be extended by the court considering the case, but not more than 10 days.
At the same time, according to the imperative requirement of the same rule of the Administrative Code, the court is obliged to suspend the period of consideration of the complaint, the appeal petition of the prosecutor if it is impossible to consider it until the resolution of another case being considered in civil, criminal or administrative proceedings. This practice is often common in "complex cases" where "notices" or other legal acts under the rules of civil procedure (Chapter 29 of the CPC) are simultaneously appealed in cases arising from tax relations or cases involving torts in the field of subsoil use, environmental protection, etc. This is often used as part of a line of defense, and in some cases as an abuse of law.
A reasoned ruling is issued on the extension of the term.
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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