The conclusions of the court and the authorized body on the absence of checks on measuring instruments do not correspond to the actual circumstances of the case.
By the resolution of the Department of the Committee for Technical Regulation and Metrology of the Ministry of Industry and New Technologies of the Republic of Kazakhstan for the Almaty region (hereinafter referred to as the Department) dated June 30, 2010, the RCSE "Center for Sanitary and Epidemiological Expertise in the Ili district" (hereinafter referred to as the CCEE) was brought to administrative responsibility under paragraph 13) of Part 1 of Article 317 of the Administrative Code with the imposition of penalties in the form of a fine in the amount of 42,390 tenge. By the ruling of the specialized interdistrict administrative court of Taldykorgan dated June 18, 2012, the Department's resolution remained unchanged, and the protest of the Prosecutor's Office of the Almaty region was not satisfied. The protest of the Deputy Prosecutor General of the Republic of Kazakhstan raises the issue of the cancellation of the judicial act and the decision of the authorized body in connection with the inconsistency of the judge's conclusions on the factual circumstances of the case, set out in the decision on an administrative offense, the evidence examined during the examination of the protest and the termination of proceedings in the absence of an administrative offense in his actions. The Supervisory Judicial Board of the Supreme Court overturned the decision of the Department and the ruling of the specialized interdistrict administrative court of Taldykorgan, terminated the proceedings in the case due to the absence of elements of an offense in the actions of the CES provided for in paragraph 13) of part 1 of Article 317 of the Administrative Code on the following grounds.
By a resolution of the authorized body and the court, it was established that on May 31, 2010, at the request of JSC "K", an unscheduled thematic audit of the activities of the CSE was conducted to ensure the reliability of the results of measurements of raw milk harvested by IP "F." for the period from January 01, 2006 to June 30, 2008. According to the inspection Results Act dated June 15, 2010, violations of the requirements of the legislation on the uniformity of measurements were revealed in the CSE, namely: instrument measurements were used without checks to determine fat content, acidity, density, thermal stability, as well as microbiological studies (pipettes of the 2nd accuracy class; measuring glass cylinders; stopwatch; hydrometers; glass thermometers liquid; mercury glass thermometers with a measuring range from 0 to 55C, 100C; flasks 1-1000-2, 2-1000-2). The Court, while leaving the Department's decision unchanged, recognized the presence of elements of an offense in the actions of the CSE. The conclusions of the court and the authorized body on the absence of checks for the above-mentioned measuring devices do not correspond to the actual circumstances of the case. From the explanations of the director of TSEE B., given by him during the pre-investigation inspection, it follows that the employee of the Department S., who conducted the inspection, was provided with all available measuring instruments and the necessary documents (certificates of conformity on verification), including the measuring instruments specified in the act. However, S. On June 15, 2010, he left the inspection without drawing up any verification reports and came back to the CSE only in early July 2010 with an act on the results of the inspection and a protocol on bringing to administrative responsibility.
The conclusions of the court and the authorized body on the absence of checks on measuring instruments do not correspond to the actual circumstances of the case.
At the request of S., the director of the CCEE B. signed the protocol on the administrative offense. As can be seen from the case file, the CSE was brought to administrative responsibility for the use of 7 units of measuring instruments without verification. At the same time, it was established that the measuring instruments specified in the act had been verified at the time of the inspection.: 1) mercury glass thermometers with a measuring range from 0 to 55C, 100C – tested in the 3rd quarter of 2009 and allowed for use until the 3rd quarter of 2010; 2) pipettes of the 2nd accuracy class – tested in April 2010, the period of use is unlimited; 3) glass measuring cylinders – tested in April 2010, the period of use is unlimited; 4) hydrometers – tested in the 3rd quarter of 2009, allowed to use until the 3rd quarter of 2010; 5) glass mercury thermometers with a measuring range – tested in the 3rd quarter of 2009, allowed to use until the 3rd quarter of 2010 6) flasks 1-100-2,2-1000-2 – tested in April 2010, the period of use is unlimited. The stopwatch measuring device was not used in the CSE and was not available, since an hourglass was used instead according to GOST5867-90. According to article 23 of the Law "On State Control and Supervision in the Republic of Kazakhstan" (hereinafter referred to as the Law), when conducting an inspection, officials of the control and supervision body do not have the right to require the provision of documents, information, product samples, environmental and industrial inspection samples, if they are not the objects of inspection or do not relate to the subject checks. Violation of the requirements of this article by virtue of paragraph 4 of Article 28 of the Law is the basis for invalidation of the audit. It follows from the act on the appointment of the audit that the period of the audit was the activities of the CSE from January 01, 2006 to June 30, 2008, and the audit was carried out by the authorized state body from June 03 to June 15, 2010. As can be seen from the inspection report, the violations reflected in the
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