On the assignment of the obligation to provide a calculation of the amount of income, a detailed calculation of monopoly income

No. 6001-23-00-6ap/1428 dated 07.12.2023

Plaintiff: LLP "A" (hereinafter referred to as the Partnership)

Respondent: RSU "Department of the Agency for Protection and Development of Competition in Astana" (hereinafter referred to as the Department)

The subject of the dispute: the assignment of the obligation to provide a calculation of the amount of income, a detailed calculation of monopoly income

Review of the plaintiff's cassation appeal

PLOT: LLP "A" appealed to the court to the RSU "Department of the Agency for the Protection and Development of Competition of the Republic of Kazakhstan" to compel them to provide a calculation of the amount of income (revenue), a detailed calculation of monopoly income, specified in the expert opinion dated February 11, 2022 and the protocol on administrative offense No. 15 dated July 28, 2022, motivating the requirements of those that the defendant unreasonably refused to provide information.

Judicial acts:

1st instance: the claim was returned on the basis of subparagraph 11) of the second part of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings.

Appeal: the court ruling is upheld.

Cassation: judicial acts are annulled with the referral of the case for consideration on the merits to the court of first instance.

Conclusions: returning the claim, the local courts proceeded from the fact that the documents required by the plaintiff were evidence in the framework of the consideration of the case of administrative offenses, therefore, his disagreement with the calculations should be considered in the order of proceedings in such a case.

The Board does not agree with these conclusions of the courts on the following grounds. It follows from the case file that the subject of the appeal is the defendant's actions to refuse to provide information (the defendant's calculation of the amount of income, a detailed calculation of monopoly income), expressed in the Department's written refusal dated January 9, 2023.

This written refusal was appealed by the Partnership to a higher authority, as a result of which the Agency's decision of February 24, 2023 dismissed the complaint. In accordance with subparagraph 2) of Article 1 of the Law "On Access to Information" (hereinafter referred to as the Law), access to information is the right of everyone, guaranteed by the state and enshrined in the Constitution and laws of the Republic of Kazakhstan, to freely receive and disseminate information in any way not prohibited by law.

The right of access to information may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, and public health and morals (article 5 of the Law). By virtue of the requirements of Article 7 of the Law, the information user has the right:

1) to receive and disseminate information in any way not prohibited by law;

2) make a request for information;

3) to appeal against the unlawful restriction of the right of access to information, actions (inaction) of officials.

By virtue of paragraph 2 of Article 11 of the Law, any information is provided upon request, with the exception of information with limited access. In accordance with paragraph 1 of Article 18 of the Law, illegal restriction of the right of access to information may be appealed in accordance with the procedure established by the laws of the Republic of Kazakhstan.

An analysis of the content of these norms directly indicates the right of a person to appeal to the court against the actions (inaction) of a state body or officials for refusing to provide information.

- According to sub-paragraphs 5) and 9) of Article 4 of the CPC, administrative action (inaction) action (inaction) an administrative body, an official in public relations, which is not an administrative act; an administrative claim (claim)

- a claim filed in court for the purpose of protecting and restoring violated or disputed rights, freedoms, or legitimate interests arising from public law relations. It was established that the Department initiated an administrative procedure at the request of the plaintiff, and subsequently the defendant's actions to refuse to provide information were the subject of a pre-trial appeal to a higher authorized body.

Thus, a person's right to challenge in court the actions (inaction) of a state body for failure to provide information is unconditional and does not depend on the presence or absence of a case of an administrative offense.

In turn, the plaintiff's right to access the materials of the court case, established by the provisions of the Code of Administrative Offenses, does not replace his right to request the necessary information from a government agency.

The conclusions of the courts that the required calculations are evidence in the case of administrative offenses are not relevant to the dispute under consideration, since the plaintiff in this claim does not ask to verify the correctness of the calculations of income (revenue) and monopoly income.

Based on the above, judicial acts rendered by local courts are subject to cancellation with the referral of the case for consideration on the merits to the court of first instance, the plaintiff's cassation appeal is subject to satisfaction.

When reviewing the case again, the court should verify the legality of the Department's refusal to provide the plaintiff with the required information and, depending on what is established, make a lawful and reasonable decision. 

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