On recognition as illegal and cancellation of the protocol on an administrative offense and the order on payment of an administrative fine

No. 7528-24-00-3j/10 dated January 30, 2024

The Specialized Inter-district Court for Administrative Offences of Almaty city, consisting of: under the chairmanship of Judge D.T. Slyamkulov, with the secretary of the court session, U. Bazarbaev, with the participation of the applicant, police officer K. S.K., defense counsel – lawyer S.D. Nigmetov, having considered in open court in the courthouse using the WhatsApp mobile application in Russian the complaint of the KSK on the recognition as illegal and cancellation of the protocol on an administrative offense and the order to pay an administrative fine 02 No. 1717094 dated December 18, 2023 under part 1 of Article 485 (Unlawful use of weapons) The Court ESTABLISHED that the decision was made by the district police inspector of the Medeu district Police Department of Almaty, R.S. Paltaev, according to the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as CRKobAP).:

Being an active police officer, S.K. (hereinafter referred to as the Applicant) appealed to the court to declare illegal and cancel the protocol on an administrative offense and the order to pay an administrative fine 02No. 1717094 dated December 18, 2023 under part 1 of Article 485 (Unlawful use of weapons) The decision was made by the district police inspector of the Medeu district Police Department of Almaty, R.S. Paltaev, arguing that Inspector R.S. Paltaev Having grossly violated the requirements of the KRKobAP, exceeding his authority, he drew up a protocol and issued an order on the need to pay a fine of 34,500 tenge for an active police officer.

He considers the prosecution unjustified and illegal, since the person who issued the order to pay the fine was not authorized, moreover, at the time of drawing up the protocol, she was an active employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

The applicant, interviewed at the court hearing, supported the arguments of her complaint and asked the court to satisfy the complaint and cancel the order.

The court, having listened to the arguments to S.K., the position of the defender, having studied the submitted materials, comes to the conclusion that the complaint is satisfied on the following grounds.

The disposition of part 1 of Article 485 of the Criminal Code of the Russian Federation provides for liability for the unlawful use of weapons, if this action does not contain signs of a criminal offense, it entails a fine of twenty monthly calculation indices with the suspension of the permit for the storage, storage and carrying of weapons.

At the time of drawing up the protocol and issuing the order, the Applicant was an active employee of the Ministry of Internal Affairs of the Republic of Kazakhstan, as confirmed by Order No. 1165 dated December 19, 2023, notification for ex.No.30/10-76-4383 dated December 19, 2023.

According to subitems 1), 2) of part 2 of Article 685 of the Code of Internal Affairs, it is entitled to consider cases of administrative offenses and impose administrative penalties on behalf of internal affairs bodies, in accordance with all articles of this Code attributed to the jurisdiction of internal affairs bodies., – chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, city of republican significance, capital, their deputies, for administrative offenses provided for in Articles 132, 147, 190 (Part one), 192, 196, 197, 198, 204-1, 359, 395 (part one), 396 (part one), 420, 421, 432, 433 ( Part one), 434-1, 434-2, 437, 438 ( parts one and two), 441-1, 444 (part two), 458, 464, 469, 470, 480 ( part of the first one), 484, 485 (part one), 486, 487, 489 (parts one, nine, ten and eleven), 492, 493, 494, 495 ( part one), 496 (part one), 505 (part two), 510 (parts one, two, three and five), 512 (part one), 513 (part one), 514 (part one), 515, 517 (part three), 518, 519 (parts one, three, five and six), 562, 571 (part three), 590 (parts three, eight and ten), 591 (part two), 592 (parts three and four), 593, 594 (part four), 595 (part four), 596 (parts four and five), 597 (parts five and six), 598 (part Two), 599 (Part Two), 600 (part Two), 601 (part two), 602 (part two), 603 (part three), 612 (parts four, five and six), 613 (part thirteen), 614, 615 (part three), 617, 619, 619-1, 621 (part two), 630, 631, 632, 635 ( first and second parts) of this Code, – heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies.

Contrary to the requirements of the above–mentioned article, the police inspector of the Medeu district Police Department of Almaty, R.S. Paltaev, without being an authorized person, drew up a protocol and issued an order against the Applicant.

There was no information provided to the court that R.S. Paltaev, an inspector of the UP of the Medeu district of Almaty, holds one of the above positions.

Taking into account these circumstances, the court considers that the arguments of the complaint were confirmed at the hearing, and therefore, the protocol and the issued order for the payment of administrative fine 02No. 1717094 dated December 18, 2023 under part 1 of Article 485 of the Criminal Code of the Russian Federation in respect of KSK are subject to cancellation, the complaint to S.K. satisfaction.

Based on the above, guided by Articles 826-1 – 826-5, 741 of the Administrative Code of the Republic of Kazakhstan, I DECIDED:

To satisfy the complaint of the KSK on the recognition as illegal and cancellation of the protocol on an administrative offense and the order to pay an administrative fine 02No. 1717094 dated December 18, 2023 under part 1 of Article 485 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the KSK), issued by the district police inspector of the Medeu District Police Department of Almaty, R.S. Paltaev.

To recognize the protocol and the order drawn up by the district police inspector of the Medeu district Police Department of Almaty – R.S. Paltaev for 02No. 1717094 dated December 18, 2023, under part 1 of Article 485 of the Code of the Republic of Kazakhstan on Administrative Offenses as invalid, proceedings in the case of an administrative offense provided for in part 1 of Article 485 of the Code of the Republic of Kazakhstan on Administrative Offenses, in relation to KSK to terminate.

 

 

 

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