On recognition as illegal and cancellation of the order on elimination of violations of sanitary and epidemiological control
No. 6001-24-00-6ap/2412 dated January 21, 2025
The plaintiff: ep
Respondent: Russian State Institution "City Administration of Sanitary and Epidemiological Control of the Department of Sanitary and Epidemiological Control of the region of the Committee for Sanitary and Epidemiological Control of the Ministry of Health of the Republic of Kazakhstan" (USEK)
The subject of the dispute: on recognition as illegal and cancellation of the order on elimination of violations dated March 11, 2024
Review of the defendant's cassation complaint PLOT:
The plaintiff carries out business activities in the supermarket "T".
On February 14, 2024, AA applied to the regional public association "Consumer Protection Center "A." (Center) with a request for assistance in contacting government agencies upon the sale of frozen pancakes with cherries (Goods) with expired shelf life on February 13, 2024, attaching a receipt and a product purchased in a supermarket. "T".
On February 20, 2024, the Center, in the interests of AA, contacted the USEC upon the sale of expired products to it and the conduct of an inspection against the plaintiff. The application was accompanied by A.A.'s statement and a receipt dated February 13, 2024. On March 1, 2024, AA also sent photographs of the product by e-mail.
On March 4, 2024, the USEC issued an act appointing an unscheduled inspection in respect of the plaintiff, the period under review is from February 13 to March 12, 2024 in accordance with subparagraph 3) paragraph 5 of Article 144 of the Entrepreneurial Code of the Republic of Kazakhstan (PK RK).
On March 11, 2024, based on the results of the inspection, violations of sanitary and epidemiological requirements were identified, an act on its results was drawn up and an order was issued to eliminate violations, which instructed the plaintiff not to allow the reception, storage, transportation and sale of expired food products, to determine the remainder of non-conforming products (in warehouses and in the retail network), if if available in the retail chain, conduct a review of the sale (submit supporting documents). The deadline for elimination is March 25, 2024.
In relation to the plaintiff, a protocol on an administrative offense was also drawn up under paragraph 1 of Article 425 of the Code of Administrative Offenses of the Republic of Kazakhstan (CAO).
The plaintiff challenged the USEC's order in court, arguing that during the inspection the defendant found no violations in the sale of expired products, while the violations specified in the act on the results of the inspection and the order were issued only on the basis of an appeal from AA. The plaintiff turned to the supplier of the products – LLC "B", whose response dated 13 On April 2024, it is indicated that the shelf life of products is 365 days. This fact is confirmed by the customs declaration dated December 9, 2023. In this regard, the plaintiff considered that he had not committed any violations of sanitary and epidemiological requirements.
Judicial acts:
1st instance: the claim was satisfied, the order on the elimination of violations dated March 11, 2024, issued by the USEC against the plaintiff, was declared illegal and canceled.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case have been annulled. A new decision was made to dismiss the IP's claim against the USEC for recognition as illegal and cancellation of the order to eliminate violations dated March 11, 2024.
Conclusions:
SMAS justified the satisfaction of the claim by the fact that:
No expired products were found during the unscheduled inspection by the plaintiff.
The violation of sanitary rules1 was established by the USEC on the basis of a receipt dated February 13, 2024 and photographs of the packaging of the "Frozen pancakes with cherries "M." products submitted by AA, however, the originals of the receipt and the products themselves were not requested from her and the Center, and no examination of expired products was carried out.;
the plaintiff submitted the Declaration of Conformity of the Eurasian Economic Union of the EAEU No.RU D-RU.RA10.V.50068/23 LLC "B" (Declaration of Conformity) with the registration date of December 9, 2023, valid until December 8, 2026, which states that the shelf life of frozen bakery products, including "Pancakes with cherry" at a storage temperature of no more than minus 18 ° C – no more than 365 days from the end of the technological process. According to the certificate of LLC "B" dated March 13, 2024 (Manufacturer's Certificate), the shelf life of bakery products "Pancakes with cherries ZAM TRAY 360g*8 (2.88 kg)" is no more than 365 days from the date of manufacture and packaging at a storage temperature not higher than minus 18oC. Therefore, the shelf life of frozen bakery products "Pancakes with cherries" produced by Bryansk Meat Company LLC is no more than 365 days from the date of manufacture and packaging at a storage temperature of no more than minus 18 ° C. The specified documents were provided by the plaintiff to the defendant, but he did not evaluate them.;
When issuing the order, the USEC violated the principle of proportionality and the prohibition of abuse of formal requirements established by the APPC. According to the fourth part of Article 6 of the CPC, violation of the principles of administrative procedures, depending on its nature and materiality, entails recognition of administrative acts, administrative actions (inaction) as illegal.;
the defendant did not provide evidence of the validity of the order, the expiration date of the purchased goods from the plaintiff has also not been proven, while the plaintiff submitted a Declaration of Conformity and a manufacturer's certificate of the expiration date of the goods. Consequently, the negative consequences of the results of the examination and resolution of the administrative case are borne by the defendant.
Agreeing with the conclusions of the SMAS, the Court of Appeal stated that:
The defendant violated the principle of reliability (Article 15 of the CPC) in relation to the plaintiff. In order to carry out an audit, it is necessary to have a combination of appeals from individuals or legal entities, as well as convincing grounds and supporting evidence. The appeals of the Center and AA to the USEC were received on February 29, 2024 and March 1, 2024, however, photographic materials were attached to them as supporting evidence, which are not evidence in the sense that it is contained in the norms of the APPC and CPC.;
It follows from the inspection results report that no expired food products were found during the inspection of the supermarket "T". The products sold by AA, the original packaging and the receipt were not checked by the defendant and their authenticity was not established.;
The requirements of article 15 of the CPC regarding the fact that the USEC is obliged to establish the unreliability of the information provided by the plaintiff by the defendant were not met, therefore, the defendant committed a violation of the principles of administrative procedure, which is significant, as it entailed bringing the plaintiff to administrative responsibility. Taking into account that the defendant did not provide any evidence of the unreliability of the information provided by the plaintiff, the SMAS reasonably satisfied the claim.;
An order can be issued only if violations are detected based on the results of the inspection. In the absence of violations, the defendant should have been guided by paragraph 11 of Article 152 of the Criminal Code of the Republic of Kazakhstan, which states that in the absence of violations of the requirements established by law, when conducting preventive control with a visit to the subject (object) of control and supervision and (or) verification in the act on the results of preventive control with a visit to the subject (object) of control and supervision and (or) the corresponding record is checked.
Having checked the arguments and conclusions of the courts for their compliance with the circumstances of the case and the applicable norms of industry and procedural law, the judicial board does not agree with them because of the following.
Thus, according to subparagraph 3) of paragraph 5 of Article 144 of the Criminal Code of the Republic of Kazakhstan, the grounds for an unscheduled inspection of subjects (objects) of control and supervision are appeals from individuals and legal entities for violations of the requirements of the legislation of the Republic of Kazakhstan if there are convincing grounds and supporting evidence.
Within the meaning of paragraphs 1 and 2 of Article 156 of the Criminal Code of the Republic of Kazakhstan, inspections are considered invalid if they are conducted in gross violation of the requirements for their organization and conduct established by this Code.
Such gross violations include:
lack of grounds for conducting an audit;
absence of an act on the appointment of an inspection;
absence of notification, as well as non-compliance with the deadline for notification of the start of the audit;
violation of the requirements of Article 151 of this Code;
violation of the frequency of verification for compliance with the requirements specified in the regulatory legal acts approved in accordance with Article 141 of this Code;
failure to submit to the subject of control and supervision an act on the appointment of an audit;
appointment by the control and supervisory authorities of inspections on issues outside their competence;
conducting an inspection without registering an inspection report with an authorized body in the field of legal statistics and special accounting, when such registration is mandatory;
violation of the terms of the audit provided for in Article 148 of this Code;
conducting preventive control with a visit to the subject (object) of control and supervision without conducting preliminary preventive control without visiting the subject (object) of control and supervision in accordance with paragraph 5 of Article 131 of this Code.
Firstly, the basis for the plaintiff's verification was the appeals of AA and the Center with the attachment of supporting documents, which corresponds to the conditions of subparagraph 3) of paragraph 5 of Article 144 of the PC RK.
Secondly, the courts justified their conclusions by the fact that no expired products were found during the inspection by the plaintiff. However, this conclusion is untenable, since the violation imputed to the plaintiff occurred during the sale of expired products, and not at the time of the inspection.
Within the meaning of paragraphs 1 and 2 of Article 156 of the Criminal Code of the Republic of Kazakhstan, inspections are considered invalid if they are conducted in gross violation of the requirements for their organization and conduct established by this Code.
Such gross violations include:
lack of grounds for conducting an audit;
absence of an act on the appointment of an inspection;
absence of notification, as well as non-compliance with the deadline for notification of the start of the audit;
violation of the requirements of Article 151 of this Code;
violation of the frequency of verification for compliance with the requirements specified in the regulatory legal acts approved in accordance with Article 141 of this Code;
failure to submit to the subject of control and supervision an act on the appointment of an audit;
appointment by the control and supervisory authorities of inspections on issues outside their competence;
conducting an inspection without registering an inspection report with an authorized body in the field of legal statistics and special accounting, when such registration is mandatory;
violation of the terms of the audit provided for in Article 148 of this Code;
conducting preventive control with a visit to the subject (object) of control and supervision without conducting preliminary preventive control without visiting the subject (object) of control and supervision in accordance with paragraph 5 of Article 131 of this Code.
Firstly, the basis for the plaintiff's verification was the appeals of AA and the Center with the attachment of supporting documents, which corresponds to the conditions of subparagraph 3) of paragraph 5 of Article 144 of the PC RK.
Secondly, the courts justified their conclusions by the fact that no expired products were found during the inspection by the plaintiff. However, this conclusion is untenable, since the violation imputed to the plaintiff occurred during the sale of expired products, and not at the time of the inspection.
Thirdly, the courts based their conclusions on the Declaration of Conformity submitted by the plaintiff and the Manufacturer's Certificate. However, these documents indicate only the storage conditions of a number of the manufacturer's products, under which their shelf life is 365 days, but they do not confirm that such conditions were met by the plaintiff in relation to the product sold by AA. Therefore, these documents cannot serve as acceptable and reliable evidence in the case.
Fourthly, there are photographic materials in the case file – a cash receipt dated February 13, 2024, indicating the sale of Goods, packaging of Goods with a specified expiration date until January 4, 2024 (the Goods were purchased on February 13, 2024), which the plaintiff did not deny in the lawsuit, and no one refuted.
Thus, having assessed the evidence available in the case in their entirety, it should be stated that the USEC order contested by the plaintiff was issued within the administrative discretion granted to him by law, legally, without gross violations and is a proportionate administrative act, since it is aimed at preventing possible harm to life, human health and the environment, legally interests of individuals and legal entities.
In the aggregate of the above, the judicial board considered that the courts had reached the wrong conclusion about the satisfaction of the claim by not applying the applicable standards of industry and procedural legislation. This circumstance led to the issuance of unlawful judicial acts by them, which led to their cancellation with the issuance of a new decision to dismiss the claim.
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