On the recognition of the response of the National Center for State Scientific and Technical Expertise as illegal
No.6001-23-00-6ap/603 dated 07/19/2023
Plaintiff: S.D.
Respondent: JSC "National Center for State Scientific and Technical Expertise" "
The subject of the dispute: on the recognition of the illegal response of October 21, 2022
Review of the plaintiff's cassation appeal.
PLOT: According to the certificate based on the results of the verification of an appeal addressed to the Vice Minister of Education and Science of the Republic of Kazakhstan, K.A. Ergaliev, 8 employees of the Monitoring Department (hereinafter referred to as the Certificate), the plaintiff became aware that Vice–President M.A. Arkhabayeva, in her arguments on the Commission's complaint, indicated that S.D. constantly violates the internal order of the Company, does not timely He executes her instructions, sets up his 163 subordinates against her, as well as the concealment of his criminal record, as well as S.J.'s sister. Disagreeing with this information, S.D. turned to the vice-president of the Society, M.A. Arkhabayeva. to provide documentation confirming her arguments.
On October 21, 2022, the head of the Company, A.Z. Ibraev, provided a response stating that the request concerns the data of the Company's employees, in this regard, such requests should be sent either to the administrative body of the Company or to its first head, who has the status of an official.
Judicial acts:
1st instance: the claim was returned as not subject to consideration in administrative proceedings.
Appeal: the court ruling is upheld.
Cassation: judicial acts were annulled, the case was sent to the SMAS for consideration on the merits.
Conclusions: The right to judicial protection of one's rights and freedoms is a constitutional guarantee enshrined in article 13 of the Constitution of the Republic of Kazakhstan.
A similar provision is contained in the first part of Article 9 of the CPC, according to which everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests. S.D., exercising the right provided for by law, appealed to the court with a claim to the Company for recognition of the unlawful response of October 21, 2022 of the year.
The court of first instance, having considered the case on the merits, returned the claim on the basis of subparagraph 11) of the second part of Article 138 of the CPC, stating that this case is not subject to consideration in administrative proceedings.
The appellate instance, agreeing with the position of the court of first instance, left the court's ruling unchanged. The conclusions of the local courts that the case is not subject to administrative proceedings are incorrect. In accordance with subparagraph 32) of the first part of Article 4 of the CPC, a request is understood as a request from a participant in an administrative procedure to provide information on matters of a personal or public nature.
In this case, the plaintiff's request for documentation confirming the arguments indicated in the Certificate is a request.
According to article 87 of the APPC, the request is reviewed by a state body, a local government body, a legal entity with one hundred percent state participation and their officials in a simplified administrative procedure in accordance with section 3 of the APPC, which provides for external administrative procedures.
Section 3 of the APPC 164 contains chapters 9-15, reflecting the stages of administrative procedures:
1) initiation of administrative procedures;
2) consideration of an administrative case;
3) an administrative act, in the case of a simplified administrative procedure, the provision of a response; 4) review (appeal);
5) consideration of the complaint;
6) the decision on the complaint. In accordance with the subparagraph
8) the first part of Article 4 of the CPC administrative procedure is the activity of an administrative body, an official for the consideration of an administrative case, the adoption and execution of a decision on it, carried out on the basis of an appeal or on his own initiative, as well as activities carried out in a simplified administrative procedure.
Based on the above rule of the law, the procedure for reviewing a message is a simplified administrative procedure and is regulated by the rules of the APPC.
In accordance with the second part of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.
This provision of the law states that the objectives of administrative proceedings are the effective protection and restoration of not only violated, but also disputed rights, freedoms and legitimate interests of individuals and legal entities in public relations.
In turn, the task of administrative legal proceedings is, first of all, the fair resolution of administrative cases, that is, not the formal consideration of the case, but the resolution of the dispute on its merits. Moreover, the principle of fairness is a fundamental principle of administrative justice.
By virtue of the first part of Article 138 of the CPC, before the start of the trial, the judge performs all actions and orders necessary to resolve the dispute, if possible during one court session. Also issues rulings on the return of the claim on the grounds specified in part two of this article.
However, the court of first instance issued a ruling on the return of the claim after considering the case on the merits. The SCAD of the Armed Forces came to similar conclusions when issuing Resolution No. 6001-22-00-6ap/2423 of 07.26.2023
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