Some questions about challenging administrative acts

Before challenging a particular act, it is necessary to ensure that it indeed qualifies as an administrative act.

According to subparagraph 4) of paragraph 1, Article 4 of the Administrative Procedural-Process Code of the Republic of Kazakhstan (hereinafter referred to as the Code), an administrative act is a decision made by an administrative body or official in public legal relations that implements the rights and obligations established by the laws of the Republic of Kazakhstan for a specific person or a specifically defined group of persons.

NOTE: For example, previously, an order imposing disciplinary action issued by an official of a state body was classified as an administrative act by some Code developers and judges in judicial practice. This was subsequently corrected, as the act in question is made not in public-legal but in private-legal (employment) relations.

An administrative act contains a public-authoritative directive that implements the rights and obligations of individuals or legal entities as established by legislation.

Article 79 of the Code outlines the general requirements for an administrative act: an administrative act must be lawful and justified; it must be clear and comprehensible, ensure uniform application, and exhaustively define the group of individuals to whom it applies.

For example, under this provision, an administrative order can be challenged if it lacks specific recommendations or directions regarding how identified violations should be rectified. This is especially relevant when a representative of the administrative body is unable to provide clear answers in court about how the order should be executed or what specific actions need to be taken.

It should be noted that the mentioned requirements for an administrative act are general, while specific requirements may be established by other regulatory legal acts. Violation of these specific requirements can also result in the administrative act being deemed unlawful and annulled. For example, Article 227 of the Entrepreneurial Code of the Republic of Kazakhstan stipulates requirements for the drafting of orders by the antimonopoly authority.

When challenging an administrative act, special attention should be paid to the objectives and principles of administrative procedures and administrative proceedings as outlined in Chapter 2 of the Code.

In particular, under paragraph 4 of Article 6 of the Code, violations of the principles of administrative procedures and administrative proceedings, depending on their nature and significance, may lead to the administrative acts or actions (or inaction) being declared unlawful, as well as the annulment of related judicial decisions.

A detailed examination of the significance of each of the mentioned objectives and principles for challenging administrative acts requires separate research.

Here, I find it appropriate to touch upon the innovation introduced in accordance with the Law of the Republic of Kazakhstan dated November 21, 2024, in Article 15-1 of the Code on the Uniformity of Administrative Procedures and Administrative Acts.

According to paragraph 1 of Article 15-1 of the Code, administrative procedures must be carried out by applying legal norms to specific (individual) relations. This application is based on identifying all applicable sources of law, including legal principles, normative rulings of the Constitutional Court of the Republic of Kazakhstan, the Supreme Court of the Republic of Kazakhstan, and considering previously applied administrative procedures and administrative acts on similar issues.

Thus, by emphasizing the significance of normative rulings of the Constitutional Court and the Supreme Court of the Republic of Kazakhstan in administrative procedures, the legislature explicitly indicates the mandatory implementation of these rulings not only in judicial practice but also in any legal practice of all administrative bodies. The legislature directly mandates compliance with not only laws and departmental acts but also normative rulings of the Constitutional Court and the Supreme Court of Kazakhstan during administrative procedures.

It should be noted that the Constitution of Kazakhstan, in paragraph 1 of Article 4, previously included normative rulings of the Constitutional Court and the Supreme Court among the sources of current law in the Republic of Kazakhstan.

In this regard, we believe that this innovation, when challenging administrative acts, introduces a direct legal provision in administrative procedural legislation. It allows violations to be substantiated by references to normative rulings of the Constitutional Court and the Supreme Court, not only in courts but also within the administrative bodies that issued the act, higher authorities, state control and oversight bodies, and the prosecutor"s office.