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Information regarding the regulatory resolution of the Constitutional Court
(№ 12 of 28 April 2023)
The Constitutional Court considered the appeal of a citizen on verifying the constitutionality of part two of Article 811, part one of Article 852 and subparagraph 2) of part three of Article 855 of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter - CAO).
In accordance with part two of Article 811 of the CAO, if the subject voluntarily pays the fine within the reduced terms specified in the sanction, the case is considered to have been considered on the merits, the decision is considered to have entered into legal force, and the person is considered to have been brought to administrative responsibility. The same part stipulates that cases heard in abbreviated proceedings are not subject to review.
The subject of the appeal considers that the articles of the CAO indicated in the appeal depriving the right to review the case, including on newly discovered circumstances, do not comply with the Constitution, therefore he asks to recognise them as unconstitutional.
The Constitutional Court considers that it is up to the individual to decide on the abbreviated or general procedure. Procedural provisions on the review of decisions on cases of administrative offences that have entered into legal force, orders on the need to pay a fine and decisions on the results of consideration of complaints against them on newly discovered circumstances, indeed, are not designed for cases when decisions are taken in abbreviated proceedings. The existing inconsistency of the norms mentioned in the appeal should not lead to a violation of both the constitutional rights of citizens and the right to a review of the case. An authorised body or a court may not restrict a person's right to review a case on newly discovered circumstances on the grounds that the matter is not or insufficiently regulated in procedural terms. The formal approach in law enforcement practice leads to a significant violation of the equality of citizens and their right to defend their rights and freedoms by all means not contrary to the law.
The Constitutional Court found the contested norms of the CAO to be in compliance with the Constitution and interpreted that the decision on a case on an administrative offence, the proceedings on which are carried out in the order of abbreviated proceedings, are equal to the issuance of the final act on the case, serving as a basis for bringing to administrative responsibility in the general order. The absence in the articles of the CAO of a mention of the decision taken in the procedure of abbreviated proceedings in the form of a conclusory decision does not deprive the person brought to responsibility in the procedure of these proceedings of the right to review the case on newly discovered circumstances.