On the review of compliance with the Constitution of the Republic of Kazakhstan of part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Code of Administrative Offences of the Republic of Kazakhstan dated July 5, 2014
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated April 28, 2023 No. 12-NP
The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Kydyrbaeva A.K., Musin K.S., Nurmukhanova B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of representatives:
The subject of the appeal, S.O. Zhunusova, is lawyer Zh.O. Dyussembayeva.,
Senate of the Parliament of the Republic of Kazakhstan – deputy Argynbekova A.S.,
Anti–Corruption Agency of the Republic of Kazakhstan - First Deputy Chairman Malakhov D.M.,
Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
In an open meeting, I considered the appeal of Saule Orynbayevna Zhunusova to verify compliance with the Constitution of the Republic of Kazakhstan with part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Code of Administrative Offences of the Republic of Kazakhstan dated July 5, 2014 (hereinafter – the Administrative Code).
Having heard the report of the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan Podoprigora R.A., having studied the materials of the constitutional proceedings, having analyzed international experience, legislation of the Republic of Kazakhstan and individual foreign countries, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan received an appeal from S.O. Zhunusova to declare part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Administrative Code inconsistent with Articles 13 and paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan.
On April 21, 2022, S.O. Zhunusova was brought to administrative responsibility for committing an administrative offense in a shortened administrative offense case (Chapter 42 of the Administrative Code). The case was initiated by an official of the Department of the Anti-Corruption Agency of the Republic of Kazakhstan (Anti-Corruption Service) for the East Kazakhstan region. S.O. Zhunusova voluntarily paid a fine in the amount of fifty percent of the amount specified in the sanction of the relevant article of the Special Part of the Administrative Code within seven days. In accordance with the second part of Article 811 of the Administrative Code, in such a case, the case is considered to have been considered on its merits, the decision has entered into force, and the person has been brought to administrative responsibility. The same part stipulates that cases considered in a shortened procedure are not subject to review, except in cases provided for in Chapter 47 of the Administrative Code, which refers to the review of cases based on newly discovered circumstances.
Later, S.O. Zhunusova considered that her actions lacked the elements of an administrative corruption offense, in connection with which she applied to the Department of the Agency of the Republic of Kazakhstan for Combating Corruption (Anti-Corruption Service) in the East Kazakhstan region with a request for a review of materials on newly discovered circumstances. According to the results of the review, on October 7, 2022, by a decision of the said body, S.O. Zhunusova, her application was denied. In the opinion of the state body, the arguments of S.O. Zhunusova The newly discovered circumstances have not been confirmed.
S.O. Zhunusova filed a complaint against the above-mentioned ruling with the Specialized Court for Administrative Offenses of the city of Ust-Kamenogorsk, East Kazakhstan region. On December 19, 2022, the court granted S.O. Zhunusova's complaint and overturned the decision of the state body. At the same time, the court, referring to the second part of Article 811, Article 852 and subparagraph 2) of the third part of Article 855 of the Administrative Code, considered that the case was not subject to review due to newly discovered circumstances. After the adoption of the appeal to the constitutional proceedings, the said resolution was canceled by the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court (resolution dated March 9, 2023), and the decision of the Department of the Agency of the Republic of Kazakhstan for Combating Corruption (Anti-Corruption Service) for the East Kazakhstan region dated October 7, 2022 was left unchanged.
The subject of the appeal considers that part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Administrative Code, depriving her of the right to review the case, including on newly discovered circumstances, do not comply with Article 13 and paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan, and therefore requests that they be declared unconstitutional..
When verifying the constitutionality of the second part of Article 811, the first part of Article 852 and subparagraph 2) of the third part of Article 855 of the Administrative Code, in relation to the subject of the appeal, the Constitutional Court proceeds from the following.
Proceedings in cases of administrative offences have a dual legal nature. On the one hand, it is a type of judicial proceedings (along with civil, criminal, administrative). On the other hand, it can be carried out outside the framework of the judicial process by various authorized state bodies and in this sense constitutes a "quasi–judicial" proceeding.
Such ambivalence does not exclude compliance in out-of-court proceedings in cases of administrative offenses with general legal principles and citizens' rights, including constitutional ones, as well as special principles related to procedural activities, including those directly enshrined in the Administrative Code (Chapter 2).
Thus, the right to defend one's rights and freedoms in all ways that do not contradict the law (paragraph 1 of Article 13 of the Constitution) presupposes a free choice by everyone of the way to protect their rights and freedoms. In out-of-court proceedings in cases of administrative offenses, this right allows you to appeal decisions on administrative offenses issued by authorized bodies to a higher authorized body or court, submit applications for review based on newly discovered circumstances, and contact the prosecutor's office.
The right to judicial protection of one's rights and freedoms (paragraph 2 of article 13 of the Constitution) implies the possibility to appeal acts and actions of authorized bodies in the course of proceedings on administrative offenses in court, to submit applications for review on newly discovered circumstances.
As a follow-up to the constitutional provision, the Administrative Code contains article 24, according to which everyone has the right to judicial protection of their rights and freedoms. An interested person has the right, in accordance with the procedure established by law, to apply to the court for protection of violated or disputed rights, freedoms or legally protected interests.
The constitutional principle of equality (Article 14 of the Constitution) is reproduced in Article 9 of the Administrative Code: "In the course of proceedings on administrative offenses, everyone is equal before the law and the court. No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances." Thus, this principle must necessarily be observed both in the formation of the relevant provisions of the Administrative Code and in the process of law enforcement practice.
These approaches correspond to the provisions of international legal acts, the obligations of which the Republic of Kazakhstan has assumed. In particular, articles 14 and 26 of the International Covenant on Civil and Political Rights of December 16, 1966, ratified by the Republic of Kazakhstan by the Law of November 28, 2005, state equality before courts and tribunals, the right to a fair and public hearing by a competent, independent and impartial court (article 14), equality before the law (Article 26). These rights must be respected in both judicial and judicial proceedings (United Nations Human Rights Committee general comment No. 32, CCPR/C/GC/32 of 23 August 2007 on article 14: Equality before courts and tribunals and the right of everyone to a fair trial).
Shortened proceedings in cases of administrative offenses are possible in cases considered by both authorized state bodies and courts. There are certain conditions for it:
it applies only to a fine corresponding to a certain amount of the monthly calculation index.;
the person who committed the offense has been identified;
the person acknowledges the fact of the offense;
the person agrees to pay a fine in the amount of fifty percent of the amount specified in the sanction of the article of the Special Part of the Administrative Code;
the person does not appeal against the presented evidence;
The sanction for an offense may not provide for other types of punishment, except for a warning.;
the person does not have privileges and immunity.
Reduced proceedings are not possible in certain categories of cases. (considered by the state revenue authorities, the National Bank of the Republic of Kazakhstan and the authorized body for regulation, control and supervision of the financial market and financial organizations).
In shortened proceedings, taking into account the recognition of the fact of committing an offense and the willingness to bear administrative responsibility, the procedures present in regular proceedings are excluded.
In the shortened proceedings, a procedural document such as a ruling on an administrative offense case, which is provided for in the Administrative Code for most cases of bringing a person to administrative responsibility, is also not issued.
In accordance with the second part of Article 811 of the Administrative Code, if a fine is paid in the amount of fifty percent of the specified fine amount within seven days, the case is considered to have been considered on its merits, the decision has entered into legal force, and the person has been brought to administrative responsibility.
The absence of an indication of a special procedural document does not mean that there is no decision to prosecute as such. The very second part of Article 811 of the Administrative Code mentions a decision that has entered into force. Such a decision is made in a specific form, that is, by performing certain actions by an official of the authorized body: declaring an offense and collecting it, entering data into information systems, explaining the grounds and procedure for shortened production, issuing a receipt for the payment of an administrative fine (if necessary). Such actions replace the decision on the case of an administrative offense, issued in proceedings conducted in accordance with the general procedure.
In cases where an administrative offense is recorded by certified special control and measuring equipment and devices operating in automatic mode, an order is issued on the need to pay a fine. This order is sent or handed over to the owner (owner) of the vehicle. A receipt of the prescribed sample is delivered along with the order (part one of Article 811 of the Administrative Code). In such cases, even with shortened proceedings, the decision on the case is made in the form of a prescription (that is, in the form of a written document).
Thus, the shortened procedure for proceedings in cases of administrative offenses is preceded by a decision of the authorized body, which is issued either in a specific form or in the form of a prescription. A person's choice of a general or abbreviated production procedure determines his legal capabilities in further stages of production.
At the same time, if a person refuses to comply with the reduced procedure, the decision is postponed to a later date and is adopted in the form of a ruling on an administrative offense case within the framework of proceedings conducted in a general manner. If an administrative offense is recorded by certified special control and measuring equipment and devices, the decision (instruction) is not postponed to a later date, but after the expiration of the period established for preferential payment, the amount of the fine increases.
Taking into account the circumstances, features, and benefits characteristic of the abridged proceedings, the legislator ruled out the possibility of reviewing decisions made under the rules of the abridged proceedings, with the exception of a review based on newly discovered circumstances, which from a formal point of view may indicate a violation of the right to defend one's rights and freedoms in all ways that do not contradict the law, the right to judicial protection (the impossibility of submitting a complaint to the authorized body, court) or violation of the principle of equality (discrimination based on participation in one or another procedure in the case of an administrative offense).
However, the law does not force a person to be a participant in a shortened procedure. The benefit of paying fifty percent of the fine amount motivates, but does not oblige, a person to take advantage of this procedure. The Administrative Code offers an alternative: a general procedure for proceedings that includes all stages of the proceedings, including appeals to the court. The decision on a shortened or general procedure for production is made by the person himself. In addition, the Administrative Code provides a time period for a person to decide which procedure (general or abbreviated) to use.
Provided that a person is aware of the consequences of choosing a shortened procedure for administrative offenses, including the inability to review the decision, and that the person has a choice of behavior, including one that allows them to seek judicial protection, there is no reason to recognize the impossibility of reviewing the decision as a violation of the constitutional right to protect their rights and freedoms by all in ways that do not contradict the law, as well as the right to judicial protection.
The conditions specified in the previous paragraph apply to the assessment of the violation of the principle of equality. A person voluntarily agrees to the restriction of their rights or to another degree of protection of their rights by the State, while having an alternative, and in return receives a benefit that is not available to those who participate in the general procedure for proceedings on administrative offenses. This also shows that the principle of equality is not violated in this case.
The second part of Article 811 of the Administrative Code, regarding the possibility of reviewing cases considered in a shortened procedure based on newly discovered circumstances, in no way violates the constitutional rights to defend one's rights and freedoms in all ways that do not contradict the law, to judicial protection and to equality before the law and the court, but, on the contrary, testifies to the observance of these constitutional provisions. in proceedings on administrative offences.
Formally, the first part of Article 852 and subparagraph 2) of the third part of Article 855 of the Administrative Code, containing procedural provisions on the review of decisions that have entered into force in cases of administrative offenses, orders on the need to pay a fine and decisions based on the results of consideration of complaints against them due to newly discovered circumstances, are indeed not designed for cases when decisions are taken during the shortened proceedings in cases of administrative offenses (with the exception of the revision of regulations). A similar problem exists in other articles of Chapter 47 of the Administrative Code, which are not disputed by the subject of the appeal (part one of Article 853, subparagraph 4) of part two of Article 855, part one of Article 856, part one of Article 857, Articles 859 and 860).
At the same time, subparagraph 3) of the second part of Article 855 of the Administrative Code refers to an act, the revision of which is requested by the applicant due to newly discovered circumstances. That is, the Administrative Code itself uses different terminology, adding in this example a broader concept of "act". In addition, as already noted, the shortened proceedings may be preceded by the issuance of an injunction (if the offense is recorded with certified special control and measuring equipment and devices), which also grants the right to request a review based on newly discovered circumstances.
The principle is that the right to review the newly discovered circumstances of the case, which is carried out in a shortened procedure, is directly provided for in the second part of Article 811 of the Administrative Code. The same part refers to the decision on the case that has entered into force.
Thus, it is obvious that the first part of Article 852 and subparagraph 2) of the third part of Article 855 of the Administrative Code are not consistent with the second part of Article 811 of the Administrative Code, which, as follows from the materials of the proceedings, leads to restrictions on the rights and freedoms of citizens.
When applying the first part of Article 852 and subparagraph 2) of the third part of Article 855 of the Administrative Code, it should be taken into account not only that the right of a person to review a case based on newly discovered circumstances in the case of shortened proceedings on administrative offenses is directly enshrined in the general norm (part two of Article 811), but also the principles of legislation on administrative offenses.
Thus, in accordance with the third part of Article 10 of the Administrative Code (the principle of presumption of innocence), any doubts about guilt are interpreted in favor of the person against whom an administrative offense case has been initiated. Doubts arising from the application of legislation on administrative offences should also be resolved in his favor.
Thus, the inconsistency of various norms of the Administrative Code should not lead to a violation of both the constitutional rights of citizens and the right to review the case, directly provided for by the Administrative Code. The authorized body or the court may not waive the application of a legal norm (the right to consider a case based on newly discovered circumstances) on the grounds that the issue has not been resolved or insufficiently resolved in the procedural plan.
In accordance with subparagraph 6) of paragraph 1 of Article 50 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", when forming its legal position, the Constitutional Court takes into account law enforcement practice, which reveals different approaches to review based on newly discovered circumstances in the case of shortened proceedings on an administrative offense., including an approach that allows only review of rulings and regulations and refuses to review the decision, submitted in a shortened production, which is not clothed in the form of a written document. Such a formal approach leads to a significant violation of the equality of citizens and their right to defend their rights and freedoms in all ways that do not contradict the law and the right to judicial protection.
The compliance of the contested norms of the Administrative Code with paragraph 3 of Article 13 of the Constitution of the Republic of Kazakhstan was not considered by the Constitutional Court due to the non-relevance of this paragraph to the issues set out in the appeal.
Based on the above, guided by paragraph 3 of Article 72 and paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62, paragraphs 3 and 4 of article 63, paragraph 4 of Article 64 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan
Decides:
To recognize part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Code of Administrative Offences of the Republic of Kazakhstan as corresponding to paragraphs 1 and 2 of Article 13 and paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan in the interpretation given by the Constitutional Court of the Republic of Kazakhstan:
the decision on the case of an administrative offense, the proceedings on which are carried out in the order of shortened proceedings, is formalized by carrying out specific actions by an official of the authorized body: declaring an offense and recovery, entering data into information systems, explaining the grounds and procedure for shortened proceedings, issuing a receipt of the established sample (if necessary). Such actions are equivalent to the issuance of the final act in the case of an administrative offense, which serves as the basis for bringing to administrative responsibility in a general manner. The decision can also be in the form of a prescription in the event that an administrative offense is recorded by certified special control and measuring equipment and devices operating in automatic mode.;
the absence in the first part of Article 852 and subparagraph 2) of the third part of Article 855 of the Code of the Republic of Kazakhstan on Administrative Offenses of a mention of a decision taken in a summary procedure in a specific form does not deprive the person brought to justice in this procedure of the right to review the case on newly discovered circumstances.
No later than six months after the publication of this regulatory resolution, the Government of the Republic of Kazakhstan should submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law on amendments and additions to the Code of Administrative Offences of the Republic of Kazakhstan aimed at eliminating gaps in the legal regulation of the procedure for reviewing cases based on newly discovered circumstances in cases where proceedings are conducted in an abbreviated manner.
Before making amendments and additions to the Code of the Republic of Kazakhstan on Administrative Offences, apply part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 in the interpretation given in this regulatory resolution.
Based on paragraph 4 of Article 63 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", decisions of courts and other law enforcement agencies based on a different interpretation of part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Code of Administrative Offences of the Republic of Kazakhstan are not enforceable. and should be reviewed according to newly discovered circumstances in accordance with subparagraph 5) of the second part of Article 852 of the Code of the Republic of Kazakhstan on Administrative Offenses.
This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the Republic, final and not subject to appeal.
To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.
Constitutional Court of the Republic of Kazakhstan
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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