Comment to Article 848. The procedure and reasons for claiming cases and considering petitions for bringing a protest against the judicial acts of the Code of the Republic of Kazakhstan on Administrative Offenses that have entered into force  

     1. An administrative offense case may be requested from the relevant court for review in cassation by the Chairman, the Chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan, as well as the Prosecutor General of the Republic of Kazakhstan, his deputies, regional prosecutors and equivalent prosecutors.

     2. The grounds for requesting cases are the petitions of the persons specified in part four of Article 851 of this Code, as well as the initiative of the Chairman of the Supreme Court of the Republic of Kazakhstan, the Prosecutor General of the Republic of Kazakhstan within their competence.

     3. A request for the recovery of a case shall be executed by the court no later than seven days from the date of its receipt by the court. The request can be sent in writing or in the form of an electronic document.

     4. Cases of administrative offences are not subject to cassation review, except for the cases provided for in part five of Article 851 of this Code.

     5. Decisions on administrative offences that have entered into legal force may be reviewed on the proposal of the Chairman, Chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan, as well as on the protest of the Prosecutor General of the Republic of Kazakhstan or his deputy, if there are grounds provided for in part five of Article 851 of this Code.

     6. The submission and protest are sent together with the case to the specialized judicial board of the Supreme Court of the Republic of Kazakhstan.

     Copies of the protest are sent by the prosecutor to the persons involved in the case.

     7. In the case of a claim for a case, a petition for making a submission or bringing a cassation protest is subject to consideration within thirty working days from the date of receipt of the case.

     8. A petition for making a submission or bringing a protest is submitted in writing or in the form of an electronic document certified with an electronic digital signature, and must contain:

     1) the name of the official to whom the petition is addressed;

     2) the name of the person submitting the petition; his place of residence or location and the procedural status of the case;

     3) an indication of the courts that considered the case in the first instance, the appellate instances, and the content of their decisions;

     4) an indication of the judicial act for which the petition is being filed;

     5) Indication:

     what serious irreversible consequences for the life, health of people or for the economy and security of the Republic of Kazakhstan can lead to the execution of the decree;

     what rights and legitimate interests of an unspecified group of people or other public interests are violated by the resolution;

     how does the adopted resolution violate the uniformity in the interpretation and application of legal norms by courts, authorized bodies (officials);

     6) an indication of the request of the person submitting the application.

     9. The petition must be signed by the person submitting the petition or his representative. A power of attorney or other document certifying the representative's authority must be attached to the application submitted by the representative.

     10. The petition is subject to return to the persons who submitted them, in case of non-compliance with the requirements of this article.

     11. The person who filed the petition has the right to withdraw it by filing an application to the court of cassation instance before considering the petition.

     comment____________________________________________

     Part 1. Like any complex structure, the judicial system is "layered" in the form of appropriate instances - first and second. In the judicial system, this corresponds to its three main links: district and equivalent courts, regional and equivalent courts, as well as the Supreme Court of the Republic of Kazakhstan. Accordingly, the case with the decision that has entered into force may be in any court from this link.  

     For the purposes of making a protest or submission, persons entitled to do so should be able to familiarize themselves with the case file.  

     The legislator has established an exhaustive list of officials who have the right to submit a submission or protest. These include: the Chairman, the Chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan, as well as the Prosecutor General of the Republic of Kazakhstan, his deputies, regional prosecutors and equivalent prosecutors. The second important conclusion that follows from this paragraph is that the so-called "exceptional" procedure for reviewing a case based on a submission or protest contains all the signs of cassation proceedings.  

     According to part 2 of the commented article, the grounds for requesting cases are the petitions of the persons specified in Part 4 of Article 851 of the Code, as well as the initiative of the Chairman of the Supreme Court of the Republic of Kazakhstan, the Prosecutor General of the Republic of Kazakhstan within their competence.

     851 of the Administrative Code, these include: the person brought to administrative responsibility, the victim, their legal representatives, defenders, representatives of legal entities, as well as authorized bodies (officials) who conducted the proceedings through their central bodies. That is, all those who have a legitimate interest in the case, as well as the person directly brought to justice.  

     Part 3. A request for the recovery of a case is executed directly by the court in custody of which the case is located (as a rule, this is the court of first instance). The deadline for executing such a request is limited to seven days from the date of receipt of such a request.  

     The moment of receipt of such a request should be considered as its registration in the office of the relevant court. The request can be sent in writing or in the form of an electronic document. The procedure for calculating this period is regulated by the norms of parts 2-4 of art. 739 (hereinafter referred to as the Administrative Code, unless otherwise specified): the deadline does not include non-working hours, as well as the day of registration of the request at the court office.  

     Parts 4 and 5. With Part 4, the direct regulation of the subject and limits of cassation review begins. Part 4 establishes a provision of fundamental importance, according to which, as a general rule, cases of administrative offenses are not reviewed in cassation, with rare exceptions. Such an exception is also provided for in Article 851 of the Administrative Code. These include cases where:

     1) the execution of the adopted resolution may lead to serious irreversible consequences for the life, health of people or for the economy and security of the Republic of Kazakhstan;

     2) the adopted resolution violates the rights and legitimate interests of an indefinite circle of persons or other public interests;

     3) the adopted resolution violates the uniformity in the interpretation and application of legal norms by courts and authorized bodies (officials).

     This "filters out" most administrative cases, for which regional and equivalent courts are, in fact, courts of last resort. And he explains why the petition is being filed, the general procedure for filing it through the judge whose decision is being appealed is ignored, etc.

     Despite the creation of a multi-stage and sufficiently reliable system for verifying the legality and validity of a decision on an administrative offense case before the decision entered into force, the law retained the possibility of correcting errors even after the decisions entered into force by reviewing them.

     Such a "limited" procedure is justified not only by the large number of administrative offenses (over 4 million), but also by the relative simplicity of this category of cases in comparison with civil and criminal ones, as well as the absence of public danger as a property of an administrative offense.  

     The special status of decisions on administrative offences that have entered into force limits the list of persons who can initiate it. As mentioned above, the participants in the proceedings only have the right to declare this petition to persons who have the right to claim the case from the court. Subsequently, if there are grounds provided for in Article 851 of the Administrative Code, drafts of relevant appeals are prepared on behalf of the Chairman, Chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan, as well as the Prosecutor General of the Republic of Kazakhstan or his deputy. At the same time, when listing subjects with such a right, the legislator uses a separating (punctuation) sign in the form of a comma, rather than the conjunction "or"..  

     This suggests that both the Chairman and the Chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan, as well as the Prosecutor General of the Republic of Kazakhstan or his deputies, have this right. At the same time, it is obvious that the form of realization of this right has signs of an individual rather than a collective nature.

     It should also be noted that neither this article nor the other provisions of the chapter contain an explicit restriction on the second initiation of a cassation review by a person who had previously applied for such a procedure and had not exercised such a right. At the same time, the number of instances for review of judicial decisions cannot be infinite, while global practice proceeds from the finality of the decisions of the Supreme Court.  

It should be noted that there is no prohibition on a second cassation review in the civil procedure legislation. Moreover, there are no procedural restrictions regarding the obligation of interested parties and subjects (who have the right to appeal to the Supreme Court) to state their position outside the subject matter indicated, respectively, in the protest or submission at the time of consideration. However, it should be borne in mind that, while allowing in exceptional cases the possibility of reviewing judicial acts of the cassation instance, civil proceedings for reviewing judicial acts of the cassation instance establish, in accordance with Part 5 of Article 434 of the CPC, a different procedure from the procedure for reviewing judicial acts of local and other courts that have entered into force.  

     This situation is characterized by the presence of a legal analogy. Thus, there may be a question about the possibility of cassation review of cases previously considered in cassation at the satisfied request of a representative of the opposing party to the administrative proceedings. In accordance with Part 1 of Article 449 of the CPC, when considering a case in cassation in civil proceedings, the court verifies the legality of judicial acts issued by the courts based on the materials available in the case within the arguments of the petition, submission, protest. The Administrative Code does not contain such restrictions for the court of cassation in cases of administrative offenses, which is not bound by the arguments of the cassation appeal.

     Given the absence in the Code of a separate procedure for reviewing decisions of the cassation instance, as well as taking into account the low public danger of administrative offenses, it can be argued that there is no possibility of reviewing decisions of the Supreme Court, except for the review of newly discovered circumstances.

     Despite the creation of a multi-stage and sufficiently reliable system for verifying the legality and validity of a decision on an administrative offense case before the decision entered into force, the law retained the possibility of correcting errors even after the decisions entered into force by reviewing these decisions in cassation.

     Part 6. The law specifies the specialized judicial board of the Supreme Court of the Republic of Kazakhstan as the competent cassation instance. It has the right to review both the submissions and the protests of the above-mentioned persons. It is to her that the relevant appeals are sent along with the case. In this case, copies of the protest are sent by the prosecutor to the persons involved in the case.

     In part 7 of this article, the deadline for consideration of a submission or protest is thirty working days from the date of receipt of the case. It is also necessary to pay attention to the use of deadlines calculated in working days, not days. Their calculation must be carried out according to the rules of art. 739 of the Administrative Code. Although the norms of the Law of the Republic of Kazakhstan dated December 13, 2001 "On holidays in the Republic of Kazakhstan" are often used.

     The legislator does not provide for an extension of the specified period, therefore, it is marginal. The above detailed regulation of the time limits for the claim of cases and their consideration is due to the desire to eliminate red tape and timely response to violations committed by local courts, if any.  

     Part 8 is addressed to the participants in the proceedings and contains the requirements imposed by law on petitions.  

     A petition for making a submission or bringing a protest is submitted in writing or in the form of an electronic document certified with an electronic digital signature, and must contain:

     1) the name of the official to whom the petition is addressed;

     2) the name of the person submitting the petition, his place of residence or location, and the procedural status of the case;

     3) an indication of the courts that considered the case in the first instance, the appellate instances, and the content of their decisions;

     4) an indication of the judicial act for which the petition is being filed;

     5) Indication:

     what serious irreversible consequences for the life, health of people or for the economy and security of the Republic of Kazakhstan can lead to the execution of the decree;

     what rights and legitimate interests of an unspecified group of people or other public interests are violated by the resolution;

     how does the adopted resolution violate the uniformity in the interpretation and application of legal norms by courts, authorized bodies (officials);

     6) an indication of the request of the person submitting the application.

     Despite the fact that the legislator does not separate, petitions can be of two types in principle: those submitted to the Supreme Court (to the chairman and chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan), as well as to the Prosecutor General of the Republic of Kazakhstan, his deputy, and regional prosecutors and equivalent prosecutors.  

     The argumentation on the fifth subparagraph of this list is crucial. A commentary on these provisions is given in art. 851 of the Administrative Code. It should be noted that the person submitting the petition, in compliance with the requirements of this rule, must justify his claims, for which it is necessary to indicate the specific grave irreversible consequences that the execution of the decree will lead to, or the specific rights of an indefinite circle of persons violated by the decree, to give specific examples indicating a violation of uniformity in the interpretation and application of law. Obviously, with this formulation, paragraphs 5) h. 8 of this article, the person submitting the petition cannot limit himself to quoting it only.

     Considering that defenders, representatives (legal representatives) of a person, etc. may appear in the case, they also have the right to file if they meet the requirements defined in Chapter 38 of the Administrative Code.  

     Part 9. As a general rule, the petition must be signed by the person submitting the petition or his representative. The word "representative" here should be understood as all the same persons mentioned in the previous paragraph. Accordingly, such persons must attach to the application the relevant documents confirming their authority. For example, a representative of an individual offender must attach a lawyer's notice of protection, etc.

     Parts 10 and 11. The legislator prescribes that petitions be returned to the persons specified in paragraph 1 if they do not comply with the requirements set out in Part 8 of the specified article of the Code. It is appropriate to clarify here that if, based on the results of the examination of the petition by the official initiating the cassation review, no grounds are found for making a submission or protest, then such a petition is subject to return without a decision to reject it. In addition, the applicant himself has the right to withdraw the petition.  

     Here it is necessary to clarify the difference between the procedural position of the prosecutor and other participants in the proceedings on an administrative offense. If the petitions of the latter are the reason for the subsequent submission of a judicial submission or a prosecutor's protest, the prosecutor's protest immediately initiates the cassation review procedure without the need for its preliminary consideration before the start of the trial.

     Unlike the prosecutor's protest, the petition of the participant in the case of an administrative offense is subject to consideration for the need to submit a judicial submission or a protest by the prosecutor. If the application does not comply with the requirements of subclause 5) of Part 8 of Article 848 of the Administrative Code, that is, in the absence of exceptional grounds provided for by law, the submission or protest will be refused by returning the application. Obviously, if the repeated petition only copies the previous one and, thus, there are no new grounds for cassation review, then such a petition should be regarded as an abuse of the right to judicial protection by the party with all the ensuing consequences.

     It is during this period from the filing of the petition to the adoption of a decision on making a submission (protest) or on its return that the person who submitted the petition has the right to withdraw it. Obviously, in this case, the return of the petition is made without issuing any procedural act. The withdrawal of the petition after making a submission (protest) based on it cannot affect further proceedings in the case, since by this time the petition has already been considered, and the cassation proceedings that have already been initiated are based on the submission or protest. This level of detail allows us to conclude that after the start of its consideration, the withdrawal of the petition is impossible. Accordingly, in this case, no procedural acts are required.

     Revocation of a petition by submitting an application before consideration does not prevent its re-referral.  

     The prosecutor has a similar right (the Prosecutor General of the Republic of Kazakhstan, as well as other employees of the Prosecutor's Office, listed in part 5 of the commented article). This right is enshrined in Part 6 of Article 851 of the Administrative Code. As in the case of a petition, the withdrawal of a prosecutor's protest is possible before the end of its consideration, that is, before the court of cassation issues a ruling. Since it is impossible to carry out a cassation review without a prosecutor's protest (judicial representation), therefore, their withdrawal entails the termination of cassation proceedings, which requires the issuance of an appropriate judicial act. In this case, the judicial act is issued in the form of a court ruling, since there is no direct review, no arguments of the participants or the position of the case receive a legal assessment.

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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