Application of Procedural Coercive Measures in the Form of a Monetary Penalty Against a Person Abusing Procedural Rights

In cases where violations of procedural law are established during the consideration of a case, procedural coercive measures in the form of a monetary penalty are applied.

In accordance with Article 127 of the Administrative Procedural and Process-Related Code (APPC), the court has the right to impose a monetary penalty on a person who abuses procedural rights or fails to fulfill procedural obligations, including instances of submitting evidence or executing court instructions beyond the deadline established by the court without valid reasons, if such conduct results in delaying the consideration of an administrative case. The penalty amounts to ten monthly calculation indices (MCI) for each act or omission.

For failure to comply with a court requirement or request, failure of a participant in administrative proceedings to appear before the court, untimely notification of the court, untimely submission of a response, disobedience to the presiding judge's orders during a court hearing, violation of court rules, as well as other actions (or omissions) clearly demonstrating disrespect toward the court and/or the judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices.

For failure to comply with a court judgment, a court ruling approving an agreement on conciliation, mediation, or dispute settlement through a participatory procedure, the court shall impose a monetary penalty on the defendant in the amount of fifty monthly calculation indices, while simultaneously setting a period for compliance not exceeding one month within the same judicial act.

During the analyzed period, a judicial practice of applying procedural coercive measures in the form of monetary penalties has developed. In disputes concerning appeals against the actions (inaction) of enforcement officers, monetary penalties were most frequently imposed on defendants for the following reasons:

• Failure to submit a response within the prescribed time;
• Untimely submission of enforcement proceeding materials;
• Submission of enforcement proceeding materials in an incomplete form;
• Failure to appear (or failure to connect online) at a court hearing without valid reasons.

Analyzing monetary penalties imposed on private enforcement officers (PEOs), it should be noted that penalties were also imposed for failure to execute court decisions.

In Case No. 5194-23-00-4/546, a court decision obligated a private enforcement officer to recalculate alimony arrears within five days from the date the decision entered into legal force (August 28, 2023).

As of October 3, 2023, the decision had not been executed, which served as grounds for the court to apply procedural coercive measures.

The defendant was duly notified, and during a separate hearing the court imposed a monetary penalty on the PEO in the amount of 50 MCIs (172,500 tenge).

Following the imposition of the monetary penalty, the PEO complied with the court decision, and the amount of arrears was determined at 608,860 tenge.

This example demonstrates the effective use of coercive measures to ensure the timely execution of a judicial act, while observing procedural safeguards and implementing the principle of inevitability of liability.

Another example concerns a ruling of the Specialized Interdistrict Administrative Court (SIAC) of Almaty dated December 12, 2024, whereby Private Enforcement Officer D. Estenov was ordered to submit, by December 17, 2024, a written statement of defense prepared in accordance with Article 166 of the Civil Procedure Code, together with scanned copies of the enforcement proceeding materials.

The court explained that failure to submit the response and the requested documents within the period established by the judge could serve as grounds for imposing a monetary penalty under Article 127 of the APPC in an amount of up to 20 MCIs and would not prevent the administrative case from being considered on its merits.

The defendant failed to comply with the court ruling of December 12, 2024, within the prescribed period. Only on January 16, 2025, after repeated reminders, did the defendant submit the response and copies of the enforcement proceeding materials.

Preparatory proceedings for the preliminary hearing were scheduled for December 18, 2024, at 3:20 p.m., while the preliminary hearing was scheduled for January 10, 2025, at 12:00 p.m. However, PEO D.Zh. Estenov neither ensured his participation nor submitted the response and enforcement materials within the deadline established by the court.

The defendant also failed to participate in the court hearing scheduled for January 16, 2025, at 10:00 a.m. Through his actions, the private enforcement officer obstructed the consideration of the case on its merits.

Taking into account the defendant's failure to fulfill procedural obligations and comply with court requirements, the court applied procedural coercive measures предусмотренные Article 123 of the APPC to PEO D.Zh. Estenov, as his conduct clearly demonstrated disrespect toward the court.

The ruling entered into legal force and was enforced through compulsory execution procedures.

As an example of positive practice, the activities of the Specialized Interdistrict Administrative Court and the Judicial Panel for Administrative Cases of the Kostanay Regional Court may be noted.

During the reviewed period, the SIAC of the Kostanay Region issued a total of 14 rulings imposing monetary penalties on enforcement officers, all of which were fully executed (2023 – 8, 2024 – 6, first half of 2025 – 0), totaling 1,278,300 tenge (2023 – 724,500 tenge; 2024 – 553,800 tenge).

For example, for failure to submit a statement of defense, monetary penalties of 20 MCIs (69,000 tenge) were imposed on PEO T.A. Abildinova in Case No. 3994-23-00-4/436 and likewise in Case No. 3994-23-00-4/732.

Similar penalties were imposed in Cases Nos. 3994-24-00-4/474 and 3994-24-00-4/609.

For failure to execute a court decision, PEO T.A. Abildinova was subjected to a monetary penalty of 50 MCIs (172,500 tenge) in Case No. 3994-23-00-4/181.

A similar penalty was imposed in Case No. 3994-23-00-4/717.

For failure to comply with court requirements and requests and for non-appearance in court, a monetary penalty of 20 MCIs (69,000 tenge) was imposed on defendant PEO Zh.S. Nysanova in Case No. 3994-23-00-4/717.

For failure to provide information requested by the court within the prescribed period, a monetary penalty of 20 MCIs (69,000 tenge) was imposed on PEO A.S. Akanova in Case No. 3994-23-00-4/1002.

A similar situation occurred in Case No. 3994-24-00-4/545.

Formulation of Claims

When filing an administrative claim challenging the actions (inaction) of enforcement officers, claimants formulate their claims in various ways.

Generally, disputes within this category are considered through claims for contestation, compulsion, and performance of actions (Articles 132–134 of the APPC).

Pursuant to Article 132 of the APPC, if a burdensome administrative act violates the claimant's rights, freedoms, or legitimate interests, the claimant has the right to file a claim challenging the administrative act and requesting its full or partial annulment.

Where a claimant disagrees with a resolution issued by an enforcement officer, the claim should seek recognition of that resolution as unlawful. Simultaneously filing a separate claim seeking recognition of the officer's actions as unlawful is not required.

According to Paragraph 2 of Article 84 of the APPC, an unlawful administrative act may be annulled in whole or in part.

If the resolution is found unlawful, the court shall annul the respective resolution.

Return of the Claim

Part 2 of Article 138 of the Administrative Procedural and Process-Related Code (APPC) provides 17 grounds for the return of an administrative claim.

Cases within the category under review are most frequently returned on the following grounds:

• Subparagraph 6) of Part 2 of Article 138 of the APPC – the claimant has withdrawn the filed claim;
• Subparagraph 9) of Part 2 of Article 138 of the APPC – the parties have concluded a settlement, mediation agreement, or an agreement on dispute resolution through a participatory procedure, and such agreement has been approved by the court;
• Subparagraph 11) of Part 2 of Article 138 of the APPC – the case is not subject to consideration under administrative court proceedings;
• Subparagraph 17) of Part 2 of Article 138 of the APPC – the case does not fall within the jurisdiction of the respective court.

In addition, grounds for returning a claim are also provided in Part 8 of Article 136 of the APPC. Under this provision, a claim shall be returned if the statutory time limit for filing it with the court has been missed without valid reasons and restoration of the missed time limit is not possible.

Courts generally do not encounter difficulties when resolving issues related to the return of claims within the analyzed category of cases.

At the same time, the implementation of the principle of the court’s active role has contributed to a significant increase in the number of cases resolved amicably through settlement agreements or withdrawal of claims.

Time Limit for Appealing a Court Decision

According to Part 4 of Article 168 of the APPC, in administrative cases concerning challenges to the actions (inaction) of enforcement officers, an appeal and a prosecutor’s petition may be filed within ten working days from the date the court decision is issued in its final form. The full text of the decision must be prepared no later than ten working days after the date of its announcement.

Amendments to this provision were introduced on November 21, 2024, in order to implement the Regulatory Resolution No. 33-NP of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023, “On Reviewing the Constitutionality of Paragraph One of Part 4 of Article 168 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan.”

The Constitutional Court concluded that the provisions of Part 4 of Article 168 derive from the rules set forth in Part 2 of the same article, which establish the general procedure for appealing court decisions that have not yet entered into legal force. Accordingly, the time limit should be calculated from the date the decision is issued in its final form.

Therefore, in administrative cases concerning challenges to the actions (inaction) of enforcement officers, the ten-working-day period for filing an appeal or a prosecutor’s petition must be calculated from the date on which the court decision is prepared and issued in its final form.

This is because the appeal period established by the APPC (ten working days from the date the decision is rendered) may, in certain cases, expire before the full text of the decision is prepared. Such a situation may deprive participants in the proceedings of the opportunity to review the reasoning section of the decision and fully exercise their appellate rights.

The Constitutional Court noted that such legal regulation could restrict the constitutional right to judicial protection, the right to qualified legal assistance, and the principle of equality before the law and the courts.

The Constitutional Court also emphasized that concepts used in the APPC, such as “the date the decision is rendered” and “the date the decision is prepared in its final form,” lacked sufficient clarity and allowed for differing interpretations, thereby creating risks of violating the rights of participants in judicial proceedings.

As a result, the Constitutional Court recognized the contested provision as constitutional, but only insofar as it is interpreted to mean that the period for filing an appeal and a prosecutor’s appellate petition begins not from the announcement of the operative part of the decision, but from the date the court decision is prepared and issued in its final form.

Prior to these amendments, local courts interpreted Part 4 of Article 168 of the APPC differently and calculated the time limit for appealing first-instance court decisions in various ways.

The Judicial Panel for Administrative Cases of the Supreme Court of the Republic of Kazakhstan confirmed the priority of the constitutional interpretation and established a uniform practice of calculating the appeal period from the date the final version of the court decision is prepared.

This practice is of systemic importance, as it eliminates inconsistencies in judicial practice and ensures the effective exercise of the parties’ right to judicial protection within administrative proceedings.

Evidence and Proof

The legal regulation of evidence, inadmissible factual data as evidence, the subject matter of proof, sources of evidence, as well as issues relating to the collection, examination, evaluation, and use of evidence (proof), and other rules concerning evidence and proof, shall be governed by the provisions of the Civil Procedure Code, except for the specific features established by the APPC (Article 128 of the APPC).

When challenging the actions of a private enforcement officer (PEO) in court, various documents and materials confirming violations committed by the PEO may be submitted as evidence. Specific facts demonstrating unlawful actions or omissions must be established.

Evidence (bound and paginated enforcement proceeding materials) may include:

Enforcement Documents

• The original or a certified copy of the writ of execution or court order on the basis of which the PEO acted;
• The challenged resolutions of the PEO, indicating their date and content.

Documents Confirming Violations

• Payment receipts;
• Correspondence with the PEO;
• Notifications (including SMS delivery reports);
• Witness statements;
• Property valuation reports;
• Property inventory records;
• Inspection reports;
• Certificates confirming non-residence;
• Photographs;
• Video recordings;
• Other materials confirming the violation of the applicant’s rights and legitimate interests.

Complaints Submitted to Justice Authorities or the Chamber of Private Enforcement Officers

If complaints were filed against the actions of the PEO, copies of such complaints and the responses received may also serve as evidence.

Witness Testimony

Witnesses capable of confirming relevant circumstances of the case may be summoned to testify before the court.

Recovery of State Duty

Under Subparagraph 15) of Article 616 of the Tax Code of the Republic of Kazakhstan, claimants filing claims challenging the actions (inaction) of enforcement officers are exempt from paying state duty when submitting a claim to the court.

According to Part 1 of Article 122 of the APPC, issues concerning the allocation of court costs shall be resolved in accordance with the rules of the Civil Procedure Code.

Pursuant to Part 1 of Article 117 of the Civil Procedure Code, state duty from which the claimant has been exempted, as well as litigation expenses, shall be recovered in favor of the state from the defendant who is not exempt from court costs, either in full or proportionally to the satisfied part of the claim.

Where the claim is satisfied, the state duty shall be recovered from the enforcement officer and credited to the local budget in proportion to the satisfied portion of the claim.

The amount of state duty is determined in accordance with Subparagraph 8) of Paragraph 1 of Article 610 of the Tax Code of the Republic of Kazakhstan and amounts to 0.5 Monthly Calculation Index (MCI).

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