Дата публикации: 19.04.2022
Amirov Serik Bektasovich
Master's student at the Academy of Law Enforcement
under the General Prosecutor's Office of the Republic of Kazakhstan
The new Administrative procedural and process-related Code (further in the text -APРC) came into force on July 1, 2021.
By Decree of the President of the Republic of Kazakhstan dated January 26, 2021 No. 500, specialized inter-district administrative courts were established in the capital, regions and cities of republican significance.
By the same decree, the specialized inter-district administrative courts that previously operated in the regions were renamed the specialized inter-district courts for cases of administrative offenses[1].
Now, from July 1, 2021, administrative courts began to receive claims to challenge decisions, actions (inaction) of administrative bodies, officials.
Statistics for the 2nd half of 2021 indicate that out of 14,456 administrative claims received, 6,050 or 41% were returned. 4143 judgments on the merits were issued on the claims accepted for proceedings, of which 1999 or 48.2% satisfied the claim, and 2144 cases were denied.
The sphere of enforcement proceedings turned out to be the most sensitive for citizens and legal entities.
In total, the courts considered 1,470 cases of contesting the actions (inaction) of bailiffs, or one third of the total, of which 1,382 or 94% of cases fall on private bailiffs. For this category, the courts issued 638 decisions with satisfaction of the claim, with 832 refusals.
Disagreement with the decisions, actions of administrative bodies and officials in the areas of taxation, public procurement and land relations led to the consideration of 1515 cases, of which 759, or 50%, of cases were decided by the courts in favor of the applicants[2].
By virtue of paragraph 1 of article 131 of the APPC, there are four types of claim filed with the court: a challenge claim, a coercive claim, a claim for the commission of an action and a claim for recognition[3]. An analysis of statistical data showed that the courts made the most decisions on administrative claims to contest (the most common type of claims).
For example, if an administrative encumbering act violates the rights, freedoms and legitimate interests, the plaintiff has the right to bring a claim and demand the cancellation of the administrative act in whole or in part. Such decisions were made by the courts in 822 cases, of which in 786 cases administrative acts were completely cancelled.
If it is necessary to adopt a favorable administrative act, which was not adopted due to inaction or which was refused, the plaintiff must file a claim for coercion. In total, the courts on a claim for coercion made 72 decisions in favor of the plaintiffs, of which 13 were with the imposition of an obligation not to accept an encumbrance administrative act. 179 decisions were made on claims for the commission of an action, 43 decisions on claims for recognizing the existence of a legal relationship, and 234 decisions with the recognition of an encumbering act as illegal.
Statistical data also record the participation of the prosecutor in administrative cases and the facts of issuing private rulings by the courts. In total, prosecutors took part in 1245 cases, mainly in tax disputes - 485, housing - 144 and land - 148. On the facts of violation of the law, the courts issued 535 private rulings, of which, according to the report, only 252 were answered. Statistics showed that bailiffs turned out to be persistent violators, in cases involving them, private rulings were sent in 189 cases, then land disputes were followed by 99 private rulings, in tax disputes and in the field of public procurement, the courts reported violations 48 and 58 times, respectively.
In addition, one of the innovations in the APPC, contributing to the strengthening of the rule of law and discipline in administrative proceedings, was the introduction of the institution of a monetary penalty.
From the above statistics, it can be seen that, as a rule, a monetary penalty was imposed on the defendants, that is, on persons whose decisions, actions (inaction) were challenged administratively.
In total, 225 rulings were issued against the plaintiffs and defendants on the imposition of monetary penalties for a total amount of 10.6 million tenge, of which only 219 against the defendants, of which 105 were for officials, 50 for individuals, 18 for legal entities and 46 for representatives of legal entities. persons. As of the end of the 2nd half of 2021, 9.5 million tenge was paid. Of the total, monetary penalties were applied in 33 cases in land disputes for a total of 2.7 million tenge, and in 28 cases in cases of challenging decisions, actions (inaction) of bailiffs in the amount of 3.4 million tenge[4].
Given that the new administrative proceedings are designed to ensure proper protection of the legitimate rights and interests of citizens and legal entities, examples of cases in favor of the plaintiffs are given below.
Thus, in July 2015, citizen K. acquired a residential building with a land plot in the city of Almaty, which was subsequently sold to LLP «T». However, then in 2018, the real estate purchase and sale transaction was terminated by mutual agreement between citizen K. and LLP "T", due to the latter's failure to fulfill its obligations under the transaction. Despite the fact that citizen К. had the right to demand the return of the paid tax and penalty interest, since as a result of the termination of the transaction she did not actually receive property income, the tax authority unreasonably refused to return the previously paid amount. At the suit of citizen K., the administrative court recognized the actions of the tax authority as illegal and ordered the state authority to return the overpaid amount of tax.
The decision of the court entered into force.
In another case, the tax authority issued a notice to individual citizen X. about the need to pay off tax debt for placing outdoor (visual) advertising in open space outside the premises in settlements in the amount of 1 million tenge. Subsequently, the tax authority issued a tax order to recover the above amount from citizen X. At the same time, when issuing the challenged administrative acts, the tax authority did not take into account that citizen Х. had never been a tax payer for the placement of outdoor (visual) advertising. The balance holder of the billboard, the placement of advertising on which served as the basis for the calculation of the tax, was LLP "В", with which citizen Х. was in an employment relationship. In this regard, the administrative court, considering that the tax authority had no legal grounds for issuing a notification and order, satisfied citizen Х. claim to challenge the administrative acts.
The adoption of illegal administrative acts and actions was also observed in the sphere of land relations.
In particular, LLP "A" owns a land plot with an area of 0.4119 hectares in the city of Almaty with a designated purpose for gardening. LLP "A" applied to the akimat with an application to change the purpose of the land plot to blocked residential buildings, which was denied with reference to the non-compliance with the detailed planning project.
Meanwhile, during the trial, it turned out that the disputed land plot, according to the detailed planning project, is located in the zone of blocked high-density buildings, where the construction of blocked residential buildings was allowed.
This means that the urban planning documentation, on which the akimat relied, on the contrary, provided for the possibility of changing the designated purpose for the applicant. Taking into account these circumstances, the administrative court found the claim of LLP “A” justified[5].
An analysis of law enforcement practice has shown that the participants in administrative procedures do not always determine the differences between an administrative act and an action.
In some cases, lawsuits are filed to challenge actions to adopt a particular resolution (for example, the akimat), while an administrative act (that is, the resolution itself) is subject to judicial appeal.
In other cases, the courts are asked to force them to adopt a favorable administrative act, for example, to agree on holding a demonstration, procession, however, in this situation, the participants in the administrative procedure must demand an action.
Based on the provisions of the new administrative justice, an administrative act is understood as a decision that affects the rights and interests of a certain person or group of persons, and under the action everything that does not fall under the concept of an administrative act.
For example, a tax notice or the use of physical force by employees of the internal affairs bodies are classified as administrative acts, while the construction of a road is an administrative action.
The study of statistical data has clearly indicated that every third case considered by the administrative court falls on the appeal of actions (inaction) of private bailiffs.
However, it should be noted that the purpose of introducing the APPC is to consolidate a set of guarantees that allow citizens to take an active part in the process of making managerial decisions, to establish effective mechanisms for protecting the rights of citizens when considering disputes with authorities in a higher body and court.
At the same time, disputes involving private bailiffs can hardly be called cases arising from public law relations, since it is obvious that the tasks of administrative justice did not include control over the legality of decisions made in the field of enforcement proceedings.
Therefore, it seems appropriate to transfer the consideration of this category of cases from administrative courts to the jurisdiction of courts of general jurisdiction, as before.
In addition, disputes where plaintiffs and defendants are state bodies raise many questions. Often, courts allow the possibility of considering disputes of one state body with another.
For example, following a lawsuit filed by the Employment Center, a new administrative court declared illegal the prescription of the Audit Commission based on the results of an audit of activities.
We emphasize that public law relations are characterized by signs of power and subordination, therefore, if state bodies are suing each other, it is not entirely clear whose interest is to be protected. At the same time, it must be taken into account that one of the state bodies does not have an administrative function, power, in relation to another.
In addition, one of the innovations is the possibility of conciliation procedures in administrative proceedings.
The parties, on the basis of mutual concessions, may fully or partially terminate the administrative case by concluding an agreement on conciliation, mediation or settlement of the dispute in the manner of a participatory procedure at all stages (stages) of the administrative process until the removal of the court to issue a decision. The APPC allows reconciliation of the parties if the defendant has administrative discretion. At the same time, the court does not approve them if its conditions are contrary to the law or violate the rights, freedoms and legitimate interests of other persons.
At the same time, Article 1 of the Law of the Republic of Kazakhstan “On Mediation” states that the mediation procedure does not apply to disputes (conflicts) arising from civil, labor, family and other legal relations involving individuals and (or) legal entities, when one of the parties is state body, that is, the conclusion of mediation agreements with a state body is prohibited[6].
In this regard, a legal conflict of normative legal acts is seen.
At the same time, practice has pointed to problematic issues in terms of the entry into force of administrative acts.
By virtue of Articles 96, 104 of the APPC, in the event of an appeal, the contested administrative act is suspended. Thus, the administrative act for the period of appeal in court is considered not to have entered into force[7].
If we turn to the Code of Civil Procedure, then the decision of the court of first instance comes into force after the expiration of the period for appeal, the filing of an appeal by the prosecutor, if the decision has not been appealed or the prosecutor has not filed an appeal.
In cases of filing an appeal, bringing an appeal by the prosecutor, the decision, if it is not canceled and (or) not changed, enters into force from the moment the decision is announced by the court of appeal[8].
Thus, according to the requirements of civil procedural legislation, a judicial act enters into force after the stage of appeal.
In contrast to the Code of Civil Procedure in the APPC, the decision of the court of appeal comes into force not from the moment of announcement, but after the expiration of the period for cassation appeal. If a cassation appeal is filed, the decision of the appeal does not enter into force until the end of the cassation. A cassation complaint may be filed within one month after the delivery of the decision of the court of appeal in the final form.
In such a situation, an administrative act enters into force only after verification of its legality in three judicial instances, including cassation.
From the above, it follows that a formal appeal may affect the timeliness of the entry into force of a legal administrative act in the interests of a person who does not want the consequences of its adoption.
An analysis of court decisions has shown that, at present, the court is developing a practice on which the rule of law in the public law sphere will depend.
The adoption of the APPC in Kazakhstan is aimed at improving the efficiency of public administration and the degree of public confidence in government bodies. The new administrative judiciary will make it possible to achieve this goal with slow but sure steps.
At the same time, the administrative courts still have a lot of work to do in restructuring to a new format. In this regard, in order to ensure the principle of uniform application of law, it seems appropriate to adopt a normative resolution of the Supreme Court "On certain issues of the application of administrative legislation."
List of sources used:
1. Decree of the President of the Republic of Kazakhstan dated January 26, 2021 No. 500 “On Specialized Administrative Courts” [electronic resource] https://adilet.zan.kz/rus/docs/U2100000500/history;
2. Data of the Committee on Legal Statistics and Special Accounts [electronic resource] https://qamqor.gov.kz/EussWar;
3. Administrative procedural and process-related code [electronic resource] https://adilet.zan.kz/rus/docs/K2000000350;
4. Law “On Mediation” [electronic resource] https://adilet.zan.kz/rus/docs/Z1100000401
5. Data of the information base "Judicial office" [electronic resource] https://office.sud.kz/lawsuit/;
6. Civil Procedure Code of the Republic of Kazakhstan [electronic resource] https://adilet.zan.kz/rus/docs/K1500000377
[1] Decree of the President of the Republic of Kazakhstan dated January 26, 2021 No. 500 “On Specialized Administrative Courts” [electronic resource] https://adilet.zan.kz/rus/docs/U2100000500/history
[2] Data of the Committee on Legal Statistics and Special Accounts [electronic resource] https://qamqor.gov.kz/EussWar
[3] Administrative procedural and process-related code [electronic resource] https://adilet.zan.kz/rus/docs/K2000000350
[4] Data Committee on legal statistics and special accounts of the General Prosecutor's office of the Republic of Kazakhstan[electronic resource] https://qamqor.gov.kz/EussWar
[5] Information base "Judicial office" [electronic resource] https://office.sud.kz/lawsuit/
[6] Law "On Mediation" [electronic resource] https://adilet.zan.kz/rus/docs/Z1100000401
[7] Administrative procedural and process-related code [electronic resource] https://adilet.zan.kz/rus/docs/K2000000350
[8] Civil Procedure Code of the Republic of Kazakhstan [electronic resource] https://adilet.zan.kz/rus/docs/K1500000377