Comment to article 836. Sole consideration by a judge of a complaint, appeal petition of a 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 decision of a judge of a specialized district and equivalent administrative court and the juvenile court shall be considered solely by a judge of a higher court.

     2. A complaint or appeal petition of a prosecutor against a court decision in a case of contempt of court, issued by a judge (court) in accordance with the procedure provided for in part four of Article 829-10 of this Code, shall be considered solely by a judge of a higher court.

     Part 1 of the commented article establishes the sole consideration by a judge of a higher court of a complaint, appeal petition of a prosecutor against the decision of a judge of a specialized district and equivalent administrative court and juvenile court. Single-person review means that the case is considered by a court composed of one judge, who simultaneously performs the functions of the chairman.

     In different types of legal proceedings, this issue is resolved in different ways, including taking into account the specifics of the case. Administrative law provides for a single review for appeal, given the absence of public danger in administrative cases and their multiplicity of these types of offenses (on average, there are dozens of times more administrative offenses than criminal offenses, even after some of them are transferred as criminal offenses to the Criminal Code). The possibility of sole consideration of administrative cases by a judge can significantly increase the efficiency of dispute resolution and reduce court costs.

     Part 2 establishes that the complaint, the appeal petition of the prosecutor against the court's decision on the fact of contempt of court, issued by the judge (court) in accordance with the procedure provided for in Part 4 of art. 829-10 of the Administrative Code, are also considered solely by a judge of a higher court.

     The dominant concept among practicing lawyers is the statement that collegial consideration of cases in the courts of appeal is preferable. Its advantages are noted such as objectivity, the possibility of discussing complex issues that are the subject of judicial proceedings, reducing the likelihood of judicial error and inaccuracies in the investigation of the factual circumstances of the case.  

     However, among the disadvantages of collegial consideration of a case, one can single out the "formality" of this principle. The case is decided not by the collegium, but by the judge-speaker, who is joined by other members of the collegium. It is difficult to disagree with this, especially considering the opinion of modern judges, who confirm that often members of the board are not familiar with all the details of the case.

     During the collegial consideration of a case, the presiding judge has great authority over the other members of the board. The judge is also under pressure from the secrecy of the conference room, the violation of which is a significant procedural violation and the basis for the cancellation of the decision in higher instances, as well as the danger of expressing a dissenting opinion. In addition, there is really no guarantee that two judges of the panel who have the same opinion will not be forced not only to yield under pressure to the chairman of the panel, usually appointed from among the most experienced judges, but also to conceal or change their opinions.  

     In addition, the collegial consideration of the case does not fully comply with the principle of judicial independence.

     Guarantees of the procedural independence of a judge, as the bearer of judicial power, are manifested in the procedure for the administration of justice established by law, which provides for the complete freedom and independence of a judge, the prohibition, under threat of liability, of anyone's interference in the administration of justice, and the lack of accountability of a judge directly in the administration of justice. A judge who does not agree with the majority opinion has the right to a dissenting opinion, but this opinion is not disclosed and does not affect the outcome of the case.  

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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