The act of prosecutorial response in the form of a submission is advisory in nature. The final imposition of disciplinary punishment is imposed by law on a specific official of the relevant state body.
K. appealed to the court with a demand to declare illegal and cancel the prosecutor's submission dated April 29, 2013 regarding bringing him to disciplinary responsibility. K. motivated his demands by the fact that the above-mentioned representation is based on the fact that when bringing citizens of the Kyrgyz Republic M., I., S. and B. to administrative responsibility, he incorrectly applied the norms of administrative legislation to them, therefore the prosecutor considered that his actions contained signs of a corruption offense. The applicant believes that he correctly qualified the actions of the above-mentioned perpetrators, therefore he did not commit a corruption offense. By the decision of the Taraz City Court dated July 15, 2013, the submission of the Prosecutor's Office of the Zhambyl region dated April 29, 2013 on the elimination of violations of the rule of law and bringing K. to disciplinary responsibility was declared illegal and canceled. The court ordered the prosecutor's office to withdraw the submission. By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Zhambyl Regional Court dated September 9, 2013, the decision of the court of first instance dated July 15, 2013 was amended. The court's decision to compel the prosecutor's office to withdraw the submission of April 29, 2013 was overturned, with a new decision in this part rejecting K.'s application. The rest of the solution remains unchanged. By the decision of the cassation judicial board of the Zhambyl Regional Court dated October 24, 2013, the decision of the appellate instance dated September 9, 2013 remained unchanged. In the petition, the applicant requests to cancel the judicial acts issued in the case and to terminate the proceedings, since he considers that the prosecutor's submission is not subject to appeal. In the response to K.'s petition Requests that the judicial acts held in the case remain unchanged.Having examined the materials of the civil case and the arguments of the petition, the supervisory judicial board of the Supreme Court, having satisfied the petition, annulled the above judicial acts and terminated the proceedings on the following grounds.
The act of prosecutorial response in the form of a submission is advisory in nature. The final imposition of disciplinary punishment is imposed by law on a specific official of the relevant state body.
It follows from the case file that the Prosecutor's office of the Zhambyl region conducted an inspection in 2013, which resulted in a submission to the Office of the Agency for Civil Service Affairs in the Zhambyl region on the elimination of violations of the rule of law and the reasons contributing to them, indicating consideration and taking measures within the limits of the powers granted to resolve the issue of involving a senior customs specialist. The post of "Aisha Bibi" has been brought to disciplinary responsibility for offenses that create conditions for corruption. Based on the recommendation of the disciplinary council and order No. LD-32 dated July 12, 2013, K. was disciplined in the form of incomplete official compliance. K. did not agree with the punishment imposed on him and asked the court to recognize the prosecutor's representation as illegal and cancel it. The Court of first instance, satisfying K.'s claims, proceeded from the fact that the facts indicated in the submission did not constitute a violation creating conditions for corruption, therefore it concluded that the submission was illegal. The appeals board changed the court's decision. She cancelled the part of the prosecutor's compulsion to withdraw the submission, making a new decision in this part to reject K.'s application. In the rest, I agreed with the conclusions of the court of first instance. The cassation Board agreed with the conclusions of the court of appeal. These conclusions of the court are illegal because they are based on a misinterpretation of substantive and procedural law. Article 25 of the Law "On the Prosecutor's Office" stipulates that the prosecutor, within the limits of his competence, submits a mandatory submission on the elimination of violations of legality, causes and conditions of offenses in cases established by law. From the meaning of Article 279 of the CPC, decisions and actions may be challenged in court, as a result of which the rights, freedoms and legally protected interests of citizens and legal entities have been violated, obstacles have been created to a citizen's exercise of his rights and freedoms, any obligation has been unlawfully imposed on a citizen or a legal entity, or they have been unlawfully held accountable. The act of prosecutorial response in the form of a submission is advisory in nature. The final imposition of a disciplinary penalty, including after consideration of the disciplinary case by the Disciplinary Council, is assigned by law to a specific official of the relevant State body. The decision of this official entails legal consequences for the person on whom a specific penalty has been imposed and which can be appealed in court. The Supervisory Board of the Supreme Court of the Republic of Kazakhstan considered erroneous the conclusions of the courts of appeal and cassation, which recognized the correct conclusion of the court of first instance on the validity of the applicant's claims to challenge the submission of the Prosecutor's Office of Zhambyl region, containing a recommendation to bring the applicant to disciplinary responsibility. In such circumstances, challenging the prosecutor's submission is not subject to consideration in civil proceedings, and by virtue of article 247 of the CPC, the proceedings in the case are subject to termination, and the contested judicial acts are annulled.
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