Comment to article 839. Decision on the complaint, appeal petition of the prosecutor against the court decision of the Code of the Republic of Kazakhstan on Administrative Offenses  

     1. Having considered the complaint, the appeal petition of the prosecutor against the court decision, the court makes one of the following decisions on:

     1) leaving the resolution unchanged, and the complaint or appeal motion without satisfaction;

     2) amendment of the resolution;

     3) cancellation of the decision and termination of the case in the presence of circumstances provided for in Articles 741 and 742 of this Code, as well as in the absence of evidence of the circumstances on the basis of which the decision was made;

     4) the cancellation of the ruling and the issuance of a new ruling on the case.

     2. The decision based on the results of consideration of the complaint or appeal petition of the prosecutor against the court decision is announced immediately after its adoption and is issued in the form of a decision on the complaint or appeal petition, executed in accordance with Article 822 of this Code.

     3. A court decision rendered on appeal may be appealed or protested in accordance with the procedure provided for in Chapter 46 of this Code.

     According to Part 1, having considered the complaint, the appeal petition of the prosecutor against the court order, the court makes one of the following decisions on:

     1) leaving the resolution unchanged, and the complaint or appeal motion without satisfaction.  

     The court's ruling is left unchanged, and the complaint (petition) is not satisfied if: the arguments set out in the complaint (petition) do not shake the correctness of the court's ruling, its legality; the arguments contained in the complaint (petition) are in conflict with the evidence that has not been refuted in the case of an administrative offense; when considering the complaint (petitions) no grounds have been found for the cancellation or amendment of the decision rendered in the case.

     2) amendment of the resolution. Based on the results of consideration of the complaint (petition), the final decision on the case may be changed. In this case, it is possible to change the court's decision in an unfavorable direction for a person only if this is indicated in the complaint (petition).  

     This follows from Part 3 of Article 842 of the Administrative Code (and is also fixed in Articles 826-5 of the Administrative Code, which refers us to Part 3 of Article 842 and Part 2 of Article 844 of the Administrative Code). In particular, they provide for a corresponding prohibition.  

     The inadmissibility of strengthening the administrative penalty in the order of consideration of a complaint (petition) against a court order means that the court of appeal has no right to: increase the amount of the penalty, even if it is imposed in clear violation of the Administrative Code; replace the type of penalty with a more severe one; apply additional penalties if it has not been imposed; change the order, resolution, if The administrative penalty is not increased or the situation of the person against whom the decision has been made is not worsened in any other way.  

     According to the general procedure, the court, when this is the requirement of a complaint (petition), has the right to change the penalty for an administrative offense within the limits provided for by law, taking into account the nature of the offense committed, the offender's personality, the degree of his guilt, property status, circumstances mitigating responsibility.

     3) cancellation of the decision and termination of the case in the presence of circumstances provided for in Articles 741 and 742 of the Administrative Code, as well as in the absence of evidence of the circumstances on the basis of which the decision was made. The provision of the commented subparagraph is similar to that given to Articles 829-14 of the Administrative Code in the relevant part.  

     Such a decision is made if there are grounds listed in Chapter 8 of the Administrative Code "Exemption from administrative liability and administrative penalty" or if there is at least one of the circumstances precluding the proceedings (Part 1 of Article 741 of the Administrative Code), and it is also possible if there are grounds provided for in Article 742 of the Administrative Code. It requires the introduction into practice of the direct application of Part 2 of Article 741 of the Administrative Code, according to which proceedings on an administrative offense are terminated on the grounds provided for in paragraphs 1) and 2) of Part 1 of this article, both if the absence of an administrative offense event or the composition of an administrative offense is proven, and if their presence is not proven, if all possibilities for collecting additional evidence have been exhausted, as well as in cases where harm is lawful or the act was committed under circumstances that, in accordance with Chapter 5 of the Administrative Code, exclude administrative liability..

     Circumstances that are not supported by evidence or based on contradictory evidence should be considered unproven, as well as if the resolution or instruction does not specify on what grounds some conclusions containing significant contradictions were adopted and others were rejected, which influenced or could have influenced the decision on the guilt or innocence of the person being investigated. an administrative offense, the correctness of the application of the Administrative Code norm, or the determination of the type and amount of an administrative penalty.

     4) the cancellation of the ruling and the issuance of a new ruling on the case. All comments on the previous grounds apply to this type of decision. In this case, a new decision is made according to the rules established by the Administrative Code as for a decision made for the first time.  

     At the same time, I would like to note that the legislator does not mention as an independent possibility the return of the case for a new examination. Such cases should not be sent for new consideration due to a large number of reasons based both on the purpose of the appellate instance and the specifics of administrative cases.

     The decision based on the results of consideration of the complaint against the decision in the case of an administrative offense must contain:

     1) the surname, first name, patronymic of the judge who made the decision

     2) the date and place of consideration of the case;

     3) information about the person in respect of whom the case is being considered;

     4) the circumstances established during the consideration of the case;

     5) an article of the Administrative Code providing for administrative liability for the commission of an administrative offense, and, if necessary, the norms of other (sectoral) regulatory legal acts, or the grounds for termination of proceedings in the case;

     6) reasoned decision on the case;

     7) the procedure for appealing the decision.

     In addition to the specified information, the descriptive part of the decision must contain information reflecting the procedure for preparing and reviewing the case.  

     The reasoning part of the decision evaluates the arguments presented on the complaint (petition), which are of a legal nature, and also indicates the grounds for making a decision on the case.

     In the operative part of the decision to cancel the decision and terminate the proceedings, and, if necessary, also the decision to amend the decision on the case, the issue of the fate of the seized items and documents, goods, vehicles and other things seized, and the costs of the case should additionally be resolved.

     Parts 2 and 3 of the Article stipulate that the decision based on the results of consideration of the complaint, the appeal petition of the prosecutor against the court order is announced immediately after its adoption and is issued in the form of a decision on the complaint, appeal petition, issued in accordance with art. 822 of the Administrative Code.

     This procedure is due to the fact that decisions of a higher court (court of appeal) on the consideration of complaints (petitions) in accordance with Chapter 45 of the Administrative Code enter into force immediately, as well as the specifics of art. 846 of the Administrative Code.  

     Thus, in any case, in accordance with Part 3, a court decision rendered on appeal is considered to have entered into force and can be appealed only in accordance with the procedure provided for in Chapter 46 of the Administrative Code "Review of court decisions that have entered into force in cassation."  

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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