Comment to article 838. Consideration of a complaint, appeal petition of a prosecutor against a court decision The Code of the Republic of Kazakhstan on Administrative Offences
1. The court, having begun consideration of the complaint, the appeal petition of the prosecutor against the court decision:
1) announces who is considering the complaint, the appeal petition; which complaint, the appeal petition are subject to consideration; by whom the complaint was filed, the appeal petition was brought;
2) certifies the appearance of an individual or a representative of a legal entity in respect of whom a decision has been made on the case, as well as persons summoned to participate in the consideration of the complaint, appeal petition;
3) verifies the powers of the participants in the proceedings and their legal representatives;
4) finds out the reasons for the non-appearance of the participants in the proceedings and decides whether to consider the complaint or appeal in their absence or to postpone consideration of the complaint or appeal.;
5) explains to the persons participating in the consideration of the complaint, the appeal petition, their rights and obligations;
6) resolves the filed challenges and petitions;
7) announces the complaint, the appeal motion against the court decision, and, if necessary, other case materials.
2. When considering a complaint or a prosecutor's appeal against a court decision, the legality and validity of the decision are checked based on the materials available in the case and additionally submitted. The court is not connected with the arguments of the complaint, the appeal petition of the prosecutor and examines the case in full, while it has the right to establish new facts and examine new evidence.
3. The court has the right to postpone consideration of the complaint or appeal petition of the prosecutor in connection with the non-appearance of the summoned persons, the request for additional materials on the case, the appointment of an expert examination and in other cases when this is necessary for a full, comprehensive and objective consideration of the complaint or appeal petition.
It should be noted that, in general, the procedure for considering a complaint, a prosecutor's appeal against a court order is similar to that established in Articles 818, 826-3 and 829-10 of the Administrative Code.
Thus, in accordance with the rules of Part 1 of this article, the court, having begun consideration of the complaint, the prosecutor's appeal motion against the court order:
– announces who is considering the complaint, the appeal petition; which complaint, the appeal petition are to be considered; by whom the complaint was filed, the appeal petition was brought. The reference to the seemingly banal requirements regarding subparagraph 1) of the commented article is actually very relevant and appropriate, as they serve the purposes of not only formalizing the process, but also determining jurisdiction and exercising the right to appeal.;
– certifies the appearance of an individual or a representative of a legal entity against whom a decision has been made on the case, as well as persons called to participate in the consideration of the complaint or appeal petition;
– checks the attendance of participants. Proper notification of the persons participating in the case about the time and place of consideration of the case is an important condition for ensuring a person's right to judicial protection. In this regard, the legislator imposes on the court of appeal the obligation to properly notify the participants in the case about the trial.
Their powers are verified by checking the submitted relevant documents (identity cards, powers of attorney, documents certifying the powers of legal representatives, as well as representatives of public organizations). At the court hearing, the court must check the attendance of the persons involved in the case, find out the reason for the absence of the absent persons, and whether they were properly notified of the trial. By interviewing, it is found out which of the participants in the production did not appear and what is the reason for the non-appearance. At the same time, the reasons for the absence can be clarified by examining the received letters, messages, notices, marks on the notifications, on the notices of their delivery.
If the participants in the case fail to appear due to their improper notification, the court must postpone the trial or take another decision commensurate with the circumstances of the case, including the consideration of such a case in absentia.
– the persons involved in the consideration of the case are explained their rights and obligations so that they have the opportunity to take an active part in the process. When explaining responsibilities, attention is drawn to the possible consequences of non-compliance. Explanations are given in a form accessible to the persons involved in the case, clearly and clearly. A formal approach to clarifying rights and obligations may lead to the fact that the persons to whom the clarification is addressed will remain unaware of their procedural rights and obligations.;
– resolves the filed challenges and petitions, in particular, petitions for the recusal of persons participating in the case; for consideration of the case in the absence of one of the participants in the proceedings; for adjournment of the case; for the return of the protocol and other case materials to the person who drew up the protocol; for assistance in collecting evidence; for the involvement of additional witnesses; for the appointment of an expert examination; on the termination of the case, etc., and decides on the consideration of the complaint or appeal in their absence, or on the postponement of consideration of the complaint or appeal.
The right to make statements and petitions is a procedural right of the persons participating in the case, the exercise of which contributes to the realization of the right to defense in court.;
– announces the complaint, the appeal motion against the court order, and, if necessary, other case materials.
Part 2 states that when considering a complaint, a prosecutor's appeal against a court order, the legality and validity of the decision are checked based on the materials available in the case and additionally submitted.
A significant achievement of the administrative proceedings are the provisions of the law regarding the non-binding nature of the court by the arguments of the complaint, the appeal petition of the prosecutor.
As a result, the Administrative Code allows, and taking into account the requirements of the General Part of the Administrative Code (principles), prescribes the court to be active and, if necessary, to check the case in full, while it has the right to establish new facts and investigate new evidence.
In practice, this means striving to ensure a comprehensive and objective hearing of the case. Accordingly, the court is obliged to thoroughly investigate the circumstances related to both the administrative offense and the identity of the person who committed it, and, in particular, to find out whether an administrative penalty was imposed on the basis of the law and by an authorized person or body (court); whether the established procedure for bringing to administrative responsibility was followed.; has the person being held accountable committed an imputed offense for which administrative responsibility is established by law; is he guilty of committing this offense and what is the degree of his guilt (an individual); does the penalty imposed correspond to the gravity of the offense and what is the degree of his guilt; does this take into account the personality of the person being held accountable, his family and property status the situation; whether the statute of limitations for bringing to responsibility has expired; whether damage has been caused and to what extent; other circumstances relevant to the case.
When verifying the legality and validity of a ruling on an administrative offense, higher authorities also verify the legality of actions at the stage of initiating proceedings on an administrative offense, since violations committed at this stage may affect the legality and validity of the decision as a whole. In these cases, the testimony of other persons involved in the consideration of the complaint, the explanations of the specialist and the expert opinion are heard, other evidence is examined, etc.
Considering the complaint, the judge and the official check the observance of the norms of both substantive and procedural law. Most violations, as a rule, are reduced to incorrect qualification of an act (action or omission) or errors in the imposition of an administrative penalty. Improper application of substantive rules is often the result of errors related to the application of the procedural rules of the Administrative Code (incomplete investigation of the circumstances of the case, one-sided assessment of evidence, ignoring circumstances and arguments). In this sense, it is advisable to read the commentary to article 839.
A procedural violation should lead to the cancellation of the decision not only when the case materials indicate the erroneous conclusion of the judge, official, body in the case, the evidence of guilt, but also in cases where the correctness of its resolution is questioned.
In this sense, it is necessary to be guided by the requirements of art. 741 of the Administrative Code and, especially, part 2 of this article.
Undoubtedly, minor procedural violations do not lead to the cancellation of the decision. The issue of cancellation or amendment of the decision due to a violation of the procedural law is decided by the judge, taking into account the specific circumstances of the case.
In addition, in accordance with part 3 of the commented article, the court has the right to postpone consideration of the complaint, the appeal petition of the prosecutor in connection with the non-appearance of the summoned persons, the request for additional materials on the case, the appointment of an expert examination and in other cases when it is necessary for a full, comprehensive and objective consideration of the complaint, the appeal petition.
This regulatory order is a right for the court, and in each specific case, taking into account the circumstances of a particular case, the court independently resolves the issue of the possibility of considering the case, taking into account the actual appearance.
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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