On challenging the actions of the Prosecutor's Office to conduct an inspection
No. 6001-22-00-6ap/2223 dated 03/30/2023.
Plaintiffs: LLP "A" and LLP "S"
Defendants: GU "Prosecutor's Office of the Kyzylorda region", GU
"Prosecutor's Office of the Aral district of the Kyzylorda region"
The subject of the dispute: on challenging the actions of the audit
Review of the plaintiff's cassation complaint PLOT:
By a resolution of the Prosecutor's Office of the Aral region dated January 10, 2022, an audit was conducted in relation to the Partnership, with the involvement of specialists from the Russian State Institution "Department of the Agency for the Protection and Development of Competition of the Republic of Kazakhstan for the Kyzylorda Region" (hereinafter referred to as the Department).
Based on the results of the audit, a specialist's opinion was drawn up on February 3, 2022, which established that the Partnership violated the legislation of the Republic of Kazakhstan in the field of competition protection.
According to the Prosecutor's Office, on February 14, 2022, the Department drew up a protocol on an administrative offense under part one of Article 159 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code).
Judicial acts:
1st instance: the claim is returned.
Appeal: the definition remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
According to the second part of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code.
In this case, the subject of the dispute may be an act or action that denies implementation, restricts, terminates the rights of a participant in an administrative procedure or imposes certain duties on him, as well as otherwise worsens his situation.
The submission, the inspection report, and the contested actions of the defendants to conduct the inspection do not impose any specific obligations on the plaintiffs, do not deny them the exercise of their rights, do not restrict or terminate their rights, and do not directly have consequences for the plaintiffs.
The Court of Appeal, agreeing with the arguments of the court of first instance, at the same time indicated that the submission as an onerous administrative act was subject to challenge within the framework of the APPC.
This conclusion is erroneous.
After the completion of the relevant inspections of state bodies, the final act based on the results of the inspection is subject to appeal, if it has signs of an onerous administrative act.
In accordance with subparagraph 4) Part one of Article 4 of the CPC administrative act is a decision taken by an administrative body, an official in public relations, implementing the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.
An onerous administrative act is an act that denies implementation, restricts, terminates the right of a participant in an administrative procedure or imposes an obligation on him, as well as otherwise worsens his situation (subparagraph 3) of the first part of Article 4 of the CPC).
In this case, the inspection has been completed with the issuance of a prescription. However, the prosecutor's submission, by virtue of its content, cannot be considered an onerous administrative act, since it does not meet the criteria of such an act, is advisory in nature, and is mandatory for consideration rather than execution.
Therefore, as the court of first instance correctly pointed out, the plaintiffs have the right to present their arguments when considering a case of administrative violation under the rules of the Administrative Code. Consequently, the plaintiffs' rights to judicial protection of the disputed rights have not been lost.
Therefore, this conclusion of the court of appeal should be excluded from the reasoning part of its decision. However, this circumstance cannot serve as a basis for the annulment of a judicial act.
According to subparagraph 11) of the second part of Article 138 of the CPC, the court issues a ruling on the return of the claim if the case is not subject to consideration in administrative proceedings.
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