Cancellation of orders issued by the Committee for Quality Assurance in the Field of Science and Higher Education of the Ministry of Science and Higher Education
No.6001-23-00-6ap/409 dated 08/17/2023
Plaintiff: J.D.
Respondent: Russian State Institution "Committee for Quality Assurance in Science and Higher Education of the Ministry of Science and Higher Education of the Republic of Kazakhstan"
The subject of the dispute is the cancellation of Orders No. 140 dated April 7, 2022 and No. 261 dated June 23, 2022.
Review of the plaintiff's cassation appeal.
PLOT: The plaintiff is a doctoral student at the Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after Barimbek Beisenov. On April 1, 2022, the dissertation work ("Countering investigation: criminalistic aspects") of J.D. for the award of the degree of Doctor of Philosophy (PhD) in the specialty: "6D0303300-Law Enforcement" was considered at a meeting of the Expert Council on Law (hereinafter referred to as the Expert Council).
On April 1, 2022, the Expert Council of the Committee for Quality Assurance in Education and Science of the Ministry of Education and Science of the Republic of Kazakhstan issued a negative opinion recommending that the Committee send the dissertation for revision due to the inconsistency of the publication of the scientific article with paragraph 6 of the Rules for Awarding Degrees, approved by Order of the Minister of Education and Science of the Republic of Kazakhstan No. 127 dated March 31, 2011. (hereinafter - the Rules).
According to the Expert Council, one of the publications does not comply with paragraph 6 of the Rules for Awarding Degrees, since J.D.'s scientific article was published in the "special issue" of the scientific journal Opcion, Ano, 35, Special No.22 (2019). pp. 26-41, and not in the "current issue". On April 7, 2022, No. 140, by order of the Committee, the plaintiff's dissertation work was sent for revision. The Appeals Commission upheld Order No. 140 of April 7, 2022. On June 23, 2022, following consideration of the appeal, the Committee issued order No. 261 on sending the thesis for revision. The plaintiff has appealed these orders in court.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision is upheld.
Cassation: judicial acts are cancelled. The claim is satisfied.
Conclusions: The local courts, rejecting the claim, proceeded from the following. Paragraph 6 of the Rules stipulates that the main scientific results of a dissertation for the degree of Doctor of Philosophy (PhD) are published before the defense of the dissertation in scientific publications included in the List of scientific publications recommended for publication of the main results of scientific activity and in an international peer-reviewed scientific journal.
In accordance with subparagraph 2) According to paragraph 6 of the Rules, articles in international peer-reviewed scientific journals correspond to the thematic focus of the journal stated in the specified databases and are published in current issues. The fact that J.D.'s article was published in the journal provided for by the List of Scientific Publications is not disputed by the parties.
The courts agreed with the above-mentioned arguments of the Committee on sending the thesis for revision. However, such conclusions are erroneous.
The essence of the dispute lies in the meaning of the terms "current issue" and "special issue" of the journal. At the same time, the Committee and the courts did not take into account the following circumstances. It can be seen from open and accessible sources that the publishing house of the scientific journal Opcion is located in another country (Venezuela).
The defendant has not provided evidence on how the concepts of "current issue" and "special issue" of the journal are interpreted according to the legislation of the country under whose jurisdiction the editorial board of Opcion journal is included. It is well known that the order of publication of articles in a printed publication is the exclusive competence of the editorial board of the publishing house.
This also follows from subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan dated July 23, 1999 No. 451-I "On Mass Media", according to which the editorial office of a mass media is an individual or a creative team that is a structural subdivision of a legal entity that collects, prepares materials and publishes mass media.
The Law on Mass Media does not provide for the right of the author of a scientific article to influence in any way the decision of the editorial board of the media on publication and its procedure. The above circumstances are also not disputed by the parties.
The Law on Mass Media and the Rules do not contain the meaning of the concepts "current issue", and there are no terms "special issue" or "additional issue", "main issue", "main issue", "additional number", "serial number" and other concepts and terms related to the number. Accordingly, their differences are not indicated.
By virtue of article 12 of the CPC (the principle of priority of rights), all doubts, contradictions and ambiguities of the legislation of the Republic of Kazakhstan on administrative procedures are interpreted by the administrative procedure.
According to article 1 of the Media Law:
in favor of the participant, a periodical print publication is a newspaper, magazine, almanac, bulletin, and their appendices, which have a permanent name, current issue, and are issued at least once every three months (subparagraph 11);
mass media products - the circulation or part of the circulation of a separate issue of a periodical or an audiovisual program, a separate issue of a radio, television, newsreel program, information posted on an Internet resource (subparagraph 5).
By virtue of paragraph 1 of Article 15 of the Law on Mass Media, each issue of a periodical must contain the following information:
1) the name of the periodical;
2) the owner of the periodical;
3) surname and initials of the editor-in-chief (editor);
4) the number and date of the certificate of registration or re-registration and the name of the issuing authority;
5) periodicity of publication;
6) serial number and publication date of the periodical;
7) the circulation of this issue;
8) the name of the printing house, its address and the address of the editorial office.
J.D.'s scientific article, in accordance with paragraph 6 of the Rules, was published in a periodical, the Opcion journal, included in the List of scientific Publications recommended for publishing the main results of scientific activity and in an international peer–reviewed scientific journal.
The Committee and the courts did not take into account that the so-called "special issue" of the journal meets all the criteria of a periodical, that is, the presence of a permanent name, its current issue and the frequency of issue.
In such circumstances, the contested judicial acts cannot be recognized as legitimate and justified.
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