Compensation for damage caused by illegal actions of the bodies of inquiry, preliminary investigation, prosecutor's office and court

Compensation for harm refers to tort types of civil liability, i.e. it does not follow from contracts and law of obligations. In order to incur obligations to compensate for personal injury, the legal literature indicates the need to establish the classical legal composition of the offense, i.e. the conditions of responsibility.

This is, firstly, the presence of guilt, since only then can the victim have grounds for compensation.

Secondly, the illegality of the behavior (in cases established by law) of a person acting in violation of the norms of law, objective rules of conduct, as a result of which there is a need to protect the subjective interests of the victim.

Thus, contractual obligations are based on a legitimate legal fact - a civil law contract, and non-contractual obligations arise from the unlawful infliction of harm (from a tort), therefore, liability under Article 917 of the Civil Code occurs in the presence of illegality of behavior, the presence of harm, and the presence of a causal relationship between them, the fault of the harm-doer. Harm may be caused to the person or property of a citizen or a legal entity. Illegality of conduct (action or omission) means that it contradicts the norms of law. In contractual relations, illegality is expressed in the inconsistency of behavior with the terms of the contract and the relevant legal norms. In non–contractual obligations, misconduct violates legal relationships in which subjective rights such as property rights, the right to life, health, etc. are enshrined in law.

The institution of liability for harm, taking its origin from constitutional law, is regulated by Chapter 47 of the Civil Code of the Republic of Kazakhstan (obligations arising for harm), which provides for the types of civil liability of various entities.:

- liability of legal entities or citizens for harm caused by their employee;

- liability for harm caused by state bodies, local self-government bodies, as well as their officials;

- liability for harm caused by illegal actions of the bodies of inquiry, preliminary investigation, prosecutor's office and court;

- responsibility for harm caused by minors, responsibility for harm caused by a citizen who is recognized as legally incompetent, with limited legal capacity, able to understand the meaning of his actions;

- liability for harm caused by activities that create increased danger to others, etc.

In the same chapter, issues of compensation for damage caused to the life and health of a citizen caused as a result of defects in goods, works, services, as well as compensation for moral damage are separately provided.

This summary analyzes judicial acts related to art.922 of the Civil Code of the Republic of Kazakhstan, which provides for liability for harm caused by state bodies, local governments, as well as their officials, i.e. judicial acts in civil cases where actions of state enterprises, institutions and organizations were challenged were studied.

According to the above-mentioned norm of civil substantive law, damage caused as a result of the issuance by state bodies of acts that do not comply with legislative acts is subject to compensation on the basis of a court decision, regardless of the fault of the bodies and officials who issued the act. The damage is compensated at the expense of the state treasury. Local self-government bodies are responsible for the damage caused by their bodies and officials in court. Damage caused by illegal actions (inaction) of officials of state bodies in the field of administrative management at the expense of those bodies. If they are insufficient, the damage is compensated vicariously at the expense of the state treasury.

So, Z-va Z.R. she filed a lawsuit with the State Institution "Department for Consumer Protection of the South Kazakhstan Region Agency for Consumer Protection", State Institution "Department of Natural Resources and Environmental Management of the South Kazakhstan region" on recognition of illegal and cancellation of Order No. 1570 dated 09.09.2014, notification No. 08/2755 dated 08/04/2014, arguing that that, based on the conclusion of the State Agency for Natural Resources and Environmental Management of the South Kazakhstan Region, a series X emission permit was issued for No.0003155 dated 07/30/2013 for a period of 5 years until 12/31/2017. According to Article 58 of the Environmental Code, disagreements in the implementation of the state environmental assessment are considered through negotiations or in court. But on this issue of the withdrawal of the environmental emission certificate, there are no negotiations with J. Z. they were not conducted by an authorized body in the field of the environment. In addition, from the side of J. Z. There is no violation of environmental norms and requirements, environmental management conditions provided for by the environmental permit, which caused particularly serious damage to the environment and/or public health.

In the court of first instance, it was established that, according to the application of J. Z. The Department of the State Sanitary and Epidemiological Supervision Committee for South Kazakhstan Region issued a sanitary and epidemiological conclusion No. 17- 6-492 dated 06/04/2013 on the draft standards for maximum permissible emissions of pollutants into the atmosphere by kitchen stoves of the Zh-v Car Market in Shymkent along the Tashkent highway, b\n, as well as the emission parameters are proposed to be taken as maximum allowable for 2013-2017.

On the basis of the draft regulations of the PDV, the conclusion of the DCGSEN of the Ministry of Health of the Republic of Kazakhstan for No. 17-6-492 dated 06/04/2013, the act on the right of private ownership of land on 07/03/2013, the State Agency for Natural Resources and Environmental Management of South Kazakhstan Region issued the conclusion of the state environmental expertise on the draft standards of maximum permissible emissions into the atmosphere for the Zh-ov car market, located along the Tashkent highway, used in Shymkent, South Kazakhstan region. Based on this conclusion, a series X emission permit was issued for No.0003155 dated 07/30/2013 for a period of 5 years until 12/31/2017.

The specialized Environmental Prosecutor's Office sent representations to the State Institution "Department for Consumer Protection of the South Kazakhstan Region Agency for Consumer Protection" and the State Institution "Department of Natural Resources and Environmental Management of the South Kazakhstan region" about the violation of the norms of laws, namely that the use of previously W-o r. and W-o Z. It is illegal to use land plots from the state forest fund for the automobile market. The project of maximum permissible emissions has not been approved by the owner of the land plot. In addition, in violation of paragraph 11 of the "Standard of Public Services" in force at that time, the application from Ms. Z. was accepted without requesting a document certifying her authority to represent her. In this regard, it is proposed to consider revoking the positive conclusion of the state environmental assessment No.000642 dated 07/03/2013 on the draft standards of maximum permissible emissions into the atmosphere for the Zhnov car market, as well as the permit for emissions into the environment No. 0003155 dated 07/30/2013.

Also, the court found that according to donation agreements No. 9519, No. 9521, No. 9517 dated 05.11.2009, the deceased J.R. donated, donated to his son J. N. the right of private ownership of a land plot allocated for parking cars, landscaping, organization of shopping malls and sale of cars with a measure of 5,5948 ha., cadastral numbers No. 19-309-153-021, No. 19-309-153-022, for the construction of a wholesale trade and purchasing base measuring 0.8960 ha., cadastral number No. 19- 309-153002 located at the address: South Kazakhstan region, Shymkent, Tashkent highway. This donation agreement, in accordance with the Law of the Republic of Kazakhstan "On State Registration of Rights to Immovable Property", has not passed state registration, that is, according to art.118 of the Civil Code, the rights of J.N. to these land plots did not arise. At the same time, according to a letter from private notary Imanova G. dated 08.01.2015, these land plots are not included in the estate in the case after the death of J. R. on the basis of the above-mentioned donation agreements.

In addition, J.N. issued a power of attorney to plaintiff J. Z. on 25.11.2013. for the management and disposal of all property belonging to him, however, these land plots are not owned by J. N., and also upon receipt of the sanitary and epidemiological conclusion in June 2013, J. Z. She did not have the authority to represent them.

By virtue of the statement made by the Specialized Interdistrict Economic Court of the South Kazakhstan region dated 05/22/2015 in satisfaction of the application of the individual entrepreneur J.Z.R. to the state institution "Department for Consumer Protection of the South Kazakhstan Region Agency for Consumer Protection", the state institution "Department of Natural Resources and Environmental Management of the South Kazakhstan region" for recognition as illegal and The cancellation of Order No. 1570 dated September 09, 2014 and notification No. 08/2755 dated August 04, 2014 were refused.

By the decision of the Appellate Judicial Board for Civil and administrative cases of the South Kazakhstan Regional Court dated 05.08.2015, the said decision of the court of first instance was left unchanged, the appeal of IP Zh-oh was not satisfied, on the grounds that the ownership rights of Zh-va N. to these land plots did not arise. For the same reason, these land plots could not be included in the estate after the death of J. R., which is objectively confirmed by the notary's letter.

 

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