On the recognition of illegal decisions on the imposition of disciplinary penalties by the Committee of the Penal Enforcement System
No.6001-24-00-6ap/3265 dated June 03, 2025
Plaintiff: K.K. and K.S.
Respondent: RSU "Institution of the Committee of the Penal Enforcement System of the Ministry of Internal Affairs of the Republic of Kazakhstan" (Institution)
The subject of the dispute: on the recognition of illegal decisions on the imposition of disciplinary penalties
Review of the plaintiff's cassation complaint PLOT:
K.K. filed a lawsuit against the Institution to declare illegal the decision to impose a disciplinary penalty on him dated July 9, 2024, as well as the response of the regional prosecutor's office dated August 6, 2024.
K.S. filed a lawsuit against the Institution to declare illegal the decision to impose a disciplinary penalty on him dated August 20, 2024.
By the definition of the SMAS dated September 3, 2024, the consideration of claims was combined into one proceeding for joint consideration.
By the definition of the SMAS dated September 3, 2024, the claims were returned on the basis of subparagraph 11) of the second part of Article 138 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan (APPC), that is, as not subject to consideration in administrative proceedings.
By the SCUD ruling of September 30, 2024, the definition of the SMAS was left unchanged, and the private complaints of the plaintiffs were not satisfied.
Judicial acts:
1st instance: the claim is returned.
Appeal: the ruling of the court of first instance is left unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: disagreeing with these judicial acts, the plaintiff K.S. in the cassation appeal and oral explanations claims that they are illegal.
In his opinion, article 482 of the CPC, which the courts refer to, regulates the procedure for appealing against the actions and decisions of an institution or a body executing punishment, whereas the defendant Institution is not a body executing punishment, but is a body providing temporary isolation from society, while the plaintiff himself is not convicted, but is under arrest. In this regard, he considered that he did not fall under the provisions of the above-mentioned CPC norm. Based on these arguments, the plaintiff requests to cancel the rulings of the courts and send the case to the court of first instance for a new hearing.
Having studied the circumstances of the case and the arguments of the plaintiff, the judicial board concludes that such violations have not been committed by the courts.
It follows from the contents of K.S.'s claim that at the time of his being under investigation in places of temporary detention, by a decree of the head of the Institution dated August 20, 2024, a disciplinary penalty was imposed on the plaintiff in the form of a remark for performing prayer on August 12 and 19, 2024 after lights out.
Disagreeing with this, the plaintiff appealed to the court with a claim to declare the above-mentioned resolution illegal and annul it.
Having checked the conclusions of the courts for their compliance with the circumstances of the case and the applicable norms of industry and procedural law, the judicial board considered that the judicial acts appealed by the plaintiff were, in general, rendered lawfully.
Firstly, according to the first part of Article 1 of the CPC, the legislation of the Republic of Kazakhstan on administrative procedures consists of this Code and other regulatory legal acts of the Republic of Kazakhstan based on the Constitution of the Republic of Kazakhstan and generally recognized principles and norms of international law.
The specifics of the implementation of administrative procedures are established by the laws of the Republic of Kazakhstan. The APPC regulates relations related to the implementation of administrative procedures to the extent not regulated by the laws of the Republic of Kazakhstan (Part two of Article 1 of the APPC).
In accordance with subparagraph 1) According to the fourth part of Article 3 of the CPC, the procedure of administrative procedures established by this Code does not apply to relations regulated by criminal procedure, civil procedure legislation and legislation on administrative offenses.
Cases, the procedure for which is provided for by criminal procedure, civil procedure legislation and legislation on administrative offenses (subparagraph 2) of the seventh part of Article 3 of the CPC), are not subject to consideration in administrative proceedings.
Secondly, as follows from the claim, at the time of the decision of the head of the Institution to impose disciplinary action on the plaintiff, the latter was a person in custody in the framework of the criminal case under investigation.
Suspects who have been detained as a preventive measure are being held in pre-trial detention facilities. The procedure and conditions of their detention are determined by law (Article 149 of the CPC). The procedure for applying penalties is defined by article 38 of the Law, according to paragraph 5 of which suspects have the right to appeal the penalty to a higher official, prosecutor or court.
Returning the claim as not subject to consideration in administrative proceedings, the courts indicated that it could be considered by an investigating judge in accordance with subparagraph 9) of the second part of Article 55 and Article 482 of the CPC within the framework of criminal procedure legislation.
Thus, subparagraph 9) of the second part of Article 55 of the CPC indicates that in the cases provided for by this Code, the investigating judge performs other powers provided for by this Code.
In turn, the first sentence of the first part of Article 482 of the CPC, to which the courts refer, stated that the convicted person has the right to appeal to the court the actions (inaction) and decisions of the institution or body executing the punishment affecting their rights and legitimate interests, as well as the decisions of the prosecutor on issues related to the execution of the sentence, or the prosecutor's refusal to satisfy their similar complaints.
At the same time, the Constitutional Court of the Republic of Kazakhstan, by its regulatory resolution No. 29-NP dated September 25, 2023, recognized the first sentence of the first part of Article 482 of the CPC as inconsistent with the Constitution of the Republic of Kazakhstan.
At the same time, the second sentence of the first part of Article 482 of the CPC remains unchanged and states that the consideration of complaints from convicted persons is carried out by the district court at the place of serving the sentence of the convicted person.
The Judicial Board noted that the legislator did not explicitly define the specific jurisdiction of lawsuits filed by persons in custody challenging acts imposing disciplinary measures on them, that is, there are no special rules for determining the jurisdiction of the above-mentioned category of lawsuits. Meanwhile, according to established judicial practice, this category of cases is subject to the jurisdiction of courts considering criminal cases and materials, and currently there are no legal grounds for changing this judicial practice.
Taken together, it should be noted that the arguments of the cassation appeal are identical in their meaning and purpose to those given in the claim and the private complaint of the plaintiff, they were thoroughly studied in the courts of the first and appellate instances. He did not provide any new arguments that could affect the legal fate of the judicial acts contested by the plaintiff.
In this regard, there are no legal grounds for revoking the appealed rulings of the courts of previous instances, as well as there are no grounds for satisfying the plaintiff's cassation appeal.
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