Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 33 "On the review of the First paragraph of the Fourth Part of Article 168 of the Administrative Procedural Code of the Republic of Kazakhstan dated June 29, 2020 for compliance with the Constitution of the Republic of Kazakhstan"

 

IN THE NAME OF THE REPUBLIC OF KAZAKHSTAN

 

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., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of:

the subject of the appeal is Baymurzina A.Zh.,

representatives:

The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,

Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,

Ministry of Finance of the Republic of Kazakhstan – Vice Minister Kenbeil D.M.,

The Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Head of the sector of the Department of Legislation Sagnaikyzy N.,

Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,

Republican Chamber of Private Bailiffs – Deputy Chairman Smagulova G.A.,

In an open meeting, I considered the appeal of A.J. Baymurzina on checking for compliance with the Constitution of the Republic of Kazakhstan, paragraph one of part four of Article 168 of the Administrative Procedural Code of the Republic of Kazakhstan dated June 29, 2020 (hereinafter referred to as the APPC).

Having listened to the speakers – judges of the Constitutional Court of the Republic of Kazakhstan Nurmukhanov B.M., Udartseva S.F. and the participants of the meeting, having studied the materials of the constitutional proceedings, having analyzed the norms of the current law of the Republic of Kazakhstan and international legal acts, the Constitutional Court of the Republic of Kazakhstan

 

installed:

 

The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) has received an application for review of compliance with paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) of paragraph one of part four of Article 168 of the CPC.

It follows from the appeal that the decision of the specialized interdistrict administrative court of Zhambyl region dated February 23, 2023 denied the applicant's administrative claim. The final court decision was made within ten working days from the date of the end of the oral proceedings (March 10, 2023), established in the second part of Article 151 of the CPC.

The plaintiff also had the right to file an appeal within ten working days from the date of the court's decision (part four of Article 168 of the CPC), which was not done due to the lack of a final court decision. By the ruling of the specialized interdistrict administrative court of Zhambyl region dated March 20, 2023, the applicant's appeal dated March 14, 2023 was returned due to the missing ten-day appeal period and the absence of an application for its restoration.

The subject of the appeal believes that the norm of part four of Article 168 of the CPC, which sets the time limit for filing an appeal within ten working days from the date of the court's decision, in conjunction with the norm of part two of Article 151 of the CPC, violate the participant's right to judicial protection of his rights and freedoms, enshrined in paragraph 2 of Article 13 of the Constitution.

Thus, the applicant is challenging the provision of the first paragraph of the fourth part of Article 168 of the CPC.

When verifying the constitutionality of the said provision of the APPC, the Constitutional Court proceeds from the following.

The Constitution defines the legal basis of judicial power, the administration of justice and the right of everyone to judicial protection of their rights and freedoms (paragraph 4 of Article 3, paragraph 2 of Article 13, articles 75-82 and others).

Some of these norms were the subject of consideration in a number of final decisions of the constitutional control body. As noted in them, the main guarantee for the protection of the rights and legitimate interests of citizens is the right to judicial protection, enshrined in paragraph 2 of article 13 of the Constitution, which includes the right to appeal court decisions. This right is absolute and inalienable and is not subject to restriction in any cases (paragraph 3 of Article 39 of the Basic Law). It involves the provision by the State of conditions for a fair trial in the court of first instance with the possibility of reconsideration of the case on its merits as part of the review of judicial acts that have not entered into force on appeal. In the interests of legality and the elimination of judicial errors in relation to specialized courts, the possibility of judicial review should be fully ensured. The execution of a court decision as a function of a public law nature implies the need to create an effective legal procedure for its implementation with adequate instruments of influence on debtors and other participants in enforcement proceedings (normative resolutions of the Constitutional Council of April 14, 2006 No. 1, January 24, 2007 No. 1 and July 3, 2018 No. 5, normative resolutions of the Constitutional Court of February 22, 2023 No. 3, May 16, 2023 No. 13-NP, July 14, 2023 No. 21-NP and others).

Closely related to the right to judicial protection and the principles of justice enshrined in the Basic Law is the right to receive qualified legal assistance (article 13, paragraph 3, of the Constitution), which presupposes the possibility for each person to use the professional assistance of qualified lawyers when performing legally significant actions. Fulfilling its obligations in this area, the state must take the necessary regulatory, organizational and other measures in order to create appropriate conditions both to guarantee this right of the individual and to ensure the effectiveness of the activities of persons called upon to provide qualified legal assistance (normative Resolution of the Constitutional Council of June 4, 2021 No. 1).

In order to protect their rights, receive and provide full-fledged qualified legal assistance, and properly exercise their powers at the stage of filing appeals and petitions, the plaintiff, the defendant, their representatives, the prosecutor and other interested persons must have at their disposal the court's decision in full with the arguments and justification set out therein, as well as the time required for preparation of documents.

International legal acts emphasize the importance of judicial protection of human rights and freedoms.

Thus, according to article 8 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948 (hereinafter referred to as the Declaration): "Everyone has the right to an effective remedy by the competent national courts in cases of violation of his fundamental rights granted to him by the Constitution or the law.". Article 10 of the Declaration stipulates: "Every person, in order to determine his rights and duties ... has the right, on the basis of full equality, to have his case examined publicly and in compliance with all the requirements of justice by an independent and impartial court."

In subparagraphs (a), (b), and (c) of paragraph 3 of article 2 of the International Covenant on Civil and Political Rights of December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 (hereinafter referred to as the ICCPR), it is recognized that the States parties to this Covenant undertake: "to ensure to any person the rights and freedoms of the rights recognized in the present Covenant are violated, an effective remedy, even if the violation was committed by persons acting in an official capacity."; "to ensure that the right to legal protection for any person requiring such protection is established by the competent judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, and to develop judicial protection opportunities"; "to ensure that the competent authorities apply remedies when they are provided.". Paragraph 1 of article 14 of the ICCPR stipulates: "All persons are equal before courts and tribunals. Everyone has the right, when considering any criminal charge brought against him or when determining his rights and obligations in any civil proceeding, to a fair and public hearing by a competent, independent and impartial court established by law."

Thus, these international legal acts define the duty of the State to ensure the protection of human and civil rights and freedoms by the necessary legal means and the consideration of the case by an independent and impartial court in compliance with all the requirements of justice.

Section 4 of the CPC regulates the procedure of administrative legal proceedings operating in Kazakhstan since the introduction of this Code.

The provisions of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) are applied in administrative proceedings, unless otherwise provided by the CPC (Part three of Article 1 of the CPC). According to the first part of Article 168 of the CPC, the procedure for appeal and the administrative proceedings on appeal in the court of appeal are determined by the rules of the CPC, unless otherwise provided by this article.

Taking into account the specifics of legal relations and the need to speed up the decision-making process in order to achieve the tasks set, the APPC has identified the specifics of considering administrative cases related to challenging decisions, conclusions, and orders of the authorized body based on the results of an audit of public procurement and actions (inaction) of bailiffs. Such cases are considered by the courts of the first and appellate instances within ten working days. An appeal and a prosecutor's petition may be filed within the same period from the date of the decision, whereas according to the general rules, the time limit for applying to the court of appeal is two months from the date of the final decision (part two of Article 146, parts two, four and eight of Article 168 of the CPC).

The date of the decision is: for oral proceedings – the day of the announcement of the decision on the administrative case, and for written proceedings – the date specified in the court decision (part three of Article 151 of the CPC).

The court announces the operative part of the decision in the courtroom, after which the presiding judge explains the legal grounds and consequences of its adoption, the procedure and time limits for appealing the decision, announces the date of the final decision and when the persons involved in the administrative case can receive a copy of it. If the announcement of the operative part of the decision is not made immediately after the end of the court session, the presiding judge is obliged to announce to the persons present in the courtroom the date and time of the announcement (parts two and four of Article 147 of the CPC).

The decision is made after the hearing of the administrative case and is made no later than ten working days from the date of the end of the oral proceedings. In exceptional cases, taking into account the complexity of the administrative case, the court decision is made no later than one month from the date of the end of the oral proceedings (part two of Article 151 of the CPC). Within the meaning of these provisions of the APPC, they are universal in nature and also apply to administrative matters specified in part four of Article 168 of this Code.

It follows from the above provisions of the APPC that a decision on an administrative case (its operative part) can be made and announced both immediately after the end and during the established period after the trial. The time limits for making a final decision, as well as for filing appeals and petitions from the prosecutor in the categories of administrative cases specified in part four of Article 168 of the CPC, may coincide (ten working days), and in complex administrative cases, the first period may significantly exceed the second (a month and ten working days).

The requirements for the content of the appeal and the prosecutor's petition are provided not in the APPC, but in the CPC (Article 404). They, along with others, must contain: the decision being appealed or reviewed at the appeal request of the prosecutor and the name of the court that issued this decision; an indication of the illegality or unreasonableness of the court's decision, as a rule, with reference to the laws to be applied and the case materials.; an indication of the part in which the legality of the decision being appealed or reviewed at the appeal request of the prosecutor should be checked and what changes are required by the person filing the complaint, the prosecutor's request; a list of documents attached to the complaint, the prosecutor's request. Electronic copies of the documents are attached to the complaint or the prosecutor's petition in the form of electronic documents. It follows from this that the preparation of documents for an appeal requires careful review of the decision of the court of first instance, critical analysis and rethinking of the judicial act, which is almost impossible before its final production.

The inconsistency of the appeal and the prosecutor's petition with the established requirements is the basis for leaving them without movement or returning them if the identified deficiencies are not eliminated (Articles 406 and 407 of the CPC). Subsequently, if the time limit for applying to the court of appeal expires, the restoration of such time limit is carried out at the request of the persons concerned, if it is missed for reasons recognized by the court as valid. The provisions of the third part of Article 126 of the CPC, which defines the grounds on which the courts are obliged to restore the missed deadline, will not lead to a correction of the situation. In fact, such provisions of the APPC impose on a person the obligation to perform unnecessary procedural actions to protect his rights in the absence of any violations on his part.

According to the second part of Article 5 of the CPC, "the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations." It is obvious that the inconsistency of the articles of the CPC on determining the time frame for making a court decision in final form and the time limits set for filing an appeal and an appeal motion by the prosecutor does not contribute to the achievement of this task of administrative proceedings.

Such approaches do not allow a person to fully exercise their right to judicial protection by filing a properly drafted appeal, and sometimes make this impossible if the final decision is made within a month. In addition, they hinder the effective exercise of a person's right to receive qualified legal assistance and the duties of the subjects of its provision, as well as the constitutional powers of the Prosecutor's Office, enshrined in the Basic Law (paragraph 3 of Article 13, paragraph 1 of Article 83). Thus, the provisions of the fourth part of Article 168 of the CPC regarding the term of appeal, if interpreted literally, create risks of unjustifiably restricting the rights of citizens, lawyers, legal consultants, and the prosecutor, which is unacceptable, especially since, in accordance with paragraph 1 of Article 83 of the Constitution, "the prosecutor's office on behalf of the state exercises, within the limits and forms established by law, the highest supervision of the observance of legality in the territory of the Republic of Kazakhstan, represents the interests of the state in court ...".

Article 152 of the CPC specifies the structure of the judgment, consisting of introductory, descriptive, motivational and resolute parts, while the content of the introductory, descriptive and resolute parts is determined in accordance with the requirements of the CPC (parts two and three). Thus, the descriptive part of the decision should contain a summary of the plaintiff's claims, the defendant's explanations and the explanations of third parties involved in the case, indicating the evidence with which they substantiate the arguments (part four of Article 226 of the CPC). The reasoning part of the court's decision must contain: the circumstances of the dispute; the claims and their justifications; the evidence on which the court bases its decision; the arguments on which the court rejected any evidence; the justification why the court disagrees with each of the arguments of the participants in the administrative process; the norms of the legislation of the Republic of Kazakhstan; the conclusions of the court on each of the stated claims. Only if the claim is recognized by the defendant, the reasoning part may indicate only the recognition of the claim and its acceptance by the court (part four of Article 152 of the CPC). Thus, both the descriptive and the motivational parts are important for substantiating a person's appeal and the prosecutor's appeal motion. The operative part alone is not enough for this.

The Constitutional Court considers that the announcement of the operative part of the decision in the courtroom and the explanation to the presiding judge of the legal grounds and consequences of its adoption are insufficient from the point of view of the use by participants in the administrative process of the tools provided by law to appeal the adopted court decision. The time limit for appealing or filing an appeal motion by a prosecutor should be set in such a way that, after making and receiving a final court decision, participants in the administrative process would have a reasonable time to familiarize themselves with its contents, determine their position on all key aspects, receive (provide) qualified legal assistance, file a complaint and take measures to respond to the prosecutor both by the prosecutor who participated in the consideration of the administrative case and by the Prosecutor General., his deputies and other prosecutors authorized to file an appeal regardless of their participation in the court session (part five of Article 168 of the CPC).

Articles 147, 151 and 168 of the CPC use different concepts to indicate the time of various procedural actions: "day of the decision", "day of the end of the oral proceedings", "day of the announcement of the decision", "date of the decision", "date of the decision in final form", "day of the decision in final form", "the day of the announcement", "the date indicated in the court decision". And the concept of "decision", in addition to the operative part, also includes other parts that are important for assessing and understanding the content of the judicial act. These provisions of the APPC do not meet the requirements of legal accuracy, allow for ambiguous interpretation and create a risk of infringement of constitutional human and civil rights and freedoms. At the same time, the Constitutional Court notes that in their decisions, the courts indicate the day of announcement and the date of manufacture in final form, if they do not coincide.

In order to ensure compliance with the constitutional principle of equality of all before the law and the court, when calculating the time limits for filing appeals and prosecutor's petitions in the categories of administrative cases specified in this provision, the date of the decision should be understood as the date of the final court decision, as established in all other administrative cases.

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 aimed at bringing the legislation of the Republic of Kazakhstan on administrative proceedings in line with the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.

To inform the Constitutional Court of the Republic of Kazakhstan about the measures taken within the specified period.

This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, 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.

The Constitutional Court

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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