On bringing to administrative responsibility for a Deliberately false call to special services

Case No. 7528-24-00-3j\250 dated March 13, 2024

The Specialized Interdistrict Court for Administrative Offenses of the city of Almaty, consisting of the presiding judge Korazbaeva A.A. under the secretary of the court session, Abzhalelova A., with the participation of the applicant, acting in the interests of S.K., an official of the Inspector of the Department of Internal Affairs of the Bostandyk district of Almaty, B.B. Zhoraev, having considered in open court, with established proceedings in Russian, the case of an administrative offense on the complaint of the KSK against the decision in the case of an administrative offense No. 247514030000457 dated January 29, 2024, on the involvement of the city of Almaty CS.K. to administrative responsibility under part 1 of Article 438 (Knowingly false call of special services) The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code), on its cancellation and termination of proceedings in the case, the court established

By the Resolution of the inspector of the Department of Internal Affairs of the Bostandyk district of Almaty, B.B. Zhoraev, No. 247514030000457 dated January 29, 2024 (hereinafter referred to as the Resolution), police officer S.K. was brought to administrative responsibility under part 1 of Article 438 of the Administrative Code to a fine of 110,760 tenge. S.K. (hereinafter referred to as the Applicant) appealed to the court against the Decision to cancel it and the termination of the proceedings.

In substantiation of her claims, the Applicant explained that B.B. Zhoraev was not an authorized person of the Ministry of Internal Affairs of the Republic of Kazakhstan, and accordingly he had considered a case of an administrative offense that did not fall within the limits of his official powers. The applicant was a police officer.

In addition, the inspector did not inform her about the date and place of the case. Requests to cancel the Resolution as illegal and to terminate the administrative proceedings and to issue a private ruling to the Head of the Almaty City Police Department on gross violation of the law by employees of the Department of Internal Affairs of the Bostandyk district of Almaty when considering an administrative offense case against S. K. under art. 438 Part 1 of the Criminal Code of the Republic of Kazakhstan.

At the hearing, the Applicant and lawyer Nigmetov S.D., acting on behalf of S.K., supported the claims of the complaint and asked the court to satisfy his complaint in full.

At the hearing, the inspector of the Department of Internal Affairs of the Bostandyk district of Almaty, B.B. Zhoraev, explained to the court that an offense on the part of K.S.K. had taken place, and therefore they issued a decision to bring S.K. to administrative responsibility under part 1 of Article 438 of the Administrative Code.

When questioned by the court, he explained that he had indeed examined the case in absentia without notifying the applicant.

Requests to dismiss the complaint.

Having examined and studied the materials and circumstances of the case in conjunction with the evidence obtained, the court considers that the complaint should be satisfied on the following grounds:

It follows from the case file that on January 12, 2024, Inspector B.B. Zhoraev drew up an electronic protocol on an administrative offense against the Administrative Code, with which she disagreed.

On January 29, 2024, B.B. Zhoraev issued a resolution to bring S.K. under part 1 of Article 438 of the Administrative Code to administrative responsibility under part 1 of Article 438 of the Administrative Code to an administrative fine in the amount of 110,760 tenge.

Meanwhile, during the consideration of the case and the issuance of the appealed decision, the official did not comply with the procedural procedure for considering the case.

According to part 4 of Article 822 of the Administrative Code, a decision issued based on the results of consideration of an administrative offense case is drawn up in writing and signed by the official who issued such a decision, or is issued in the form of an electronic document certified by the electronic digital signature of the official who issued such a decision.

It follows from the case file that K.S.K. did not acknowledge the fact of committing an administrative offense and did not agree to pay the fine.

In such circumstances, the case of an administrative offense was subject to review in a general manner in accordance with Chapter 43 of the Administrative Code.

However, during the consideration of the case and the issuance of a decision by an official, violations of the requirements of the Administrative Code were committed.

According to part 2 of Article 685 of the Administrative Code, the following persons have the right to consider cases of administrative offenses and impose administrative penalties on behalf of the internal affairs bodies: for administrative offenses provided for in Articles 438 (parts one and two) of this Code – heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in city) and their deputies.

It follows from this provision of the Code that the district inspector of the Department of Internal Affairs of the Bostandyk district of Almaty, B.B. Zhoraev, not being an authorized person of the Ministry of Internal Affairs of the Republic of Kakhastan, illegally exceeded his authority and considered a case of an administrative offense that does not fall within the limits of his official powers.

In addition, according to part 1 of Article 743 of the Administrative Code, participants in proceedings on administrative offenses are notified of the time and place of consideration of the case or the commission of certain procedural actions and are summoned to court, body (to an official) by notifications (notices).

In accordance with part 2 of Article 744 of the Administrative Code, an administrative offense case is considered with the participation of the person against whom the administrative offense case is being conducted.

In the absence of the said person, the case may be considered when there is evidence that he has been properly notified of the place and time of the case and if he has not requested that the case be adjourned.

There is no information in the case file about her proper notification of the place and time of the case consideration. The authorized body (official) has not provided the court with evidence confirming the fact that the Applicant was properly notified of the place and time of the case.

In such circumstances, the court concludes that the case was considered against S.K. in her absence, and she was not properly informed of the time and place of its consideration, which is a significant violation of the requirements of the Administrative Code committed by an official and entails a violation of the Applicant's right to defense.

Accordingly, the procedure for considering the case stipulated in Article 818 of the Administrative Code was violated, in particular, the rights provided for in Article 744 of the Administrative Code were not clarified to S.K., including the right to receive free legal aid from the state budget, the language of the proceedings was determined without taking into account his opinion, the rights to make statements, give explanations, declare requests to get acquainted with the case materials, the explanations of the person against whom the proceedings are being conducted were not heard, the circumstances of the case provided for in Article 819 of the Administrative Code were not clarified.

Thus, during the consideration of the case and the issuance of the decision by the official, the procedural procedure for considering the case of an administrative offense provided for in Chapter 43 of the Administrative Code was not observed.

By virtue of part 1 of Article 843 of the Administrative Code, significant violations of the procedural norms of this Code are violations of the principles and other general provisions of this Code in the course of proceedings and its consideration, which, by depriving or restricting the rights of persons participating in the case guaranteed by law, non-compliance with the procedure for proceedings on an administrative offense, or otherwise prevented a comprehensive, complete and objective to investigate the circumstances of the case, whether they influenced or could have influenced the issuance of a lawful and reasonable decision.

In accordance with subparagraph 5) of part 3 of Article 843 of the Administrative Code, the decision is subject to cancellation in any case if the person against whom the proceedings are being conducted is not given the right to provide explanations about the circumstances of the case.

Considering that the arguments of the complaint were fully confirmed at the court hearing, the decision issued in the case is subject to cancellation with the termination of the proceedings, and the Applicant's complaint is satisfied.

Based on the above, guided by Articles 822 and 829-14 of the Code of the Republic of Kazakhstan on Administrative Offenses, the court RULED: Resolution on administrative offense No. 247514030000457 dated January 29, 2024 on bringing to administrative responsibility under part 1 of Article 438 (Knowingly false call of special services) The Code of Administrative Offences of the Republic of Kazakhstan should be abolished and the case should be terminated. To satisfy the complaint.

 

 

 

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