Disputes related to environmental protection - lawsuits filed by individuals
Kazakhstan has a well-developed mining and processing industry, and the growth rates of these industries have been increasing over the past five years.
Large industrial facilities are being built and put into operation, which leads to increased air pollution and deterioration of the environment in Kazakhstan as a whole. Over the years, more than twenty billion tons of waste have accumulated in the republic, about a third of which are toxic.
The main part of this waste is the result of the mining and mining processing industry, ferrous metallurgy, petrochemistry, and the production of building materials. Despite the fact that large companies and the government are developing programs to combat air pollution, the environment in Kazakhstan leaves much to be desired.
A big problem is the utilization of associated and natural gases in the production of hydrocarbons. When burning associated gas on flares, nitrogen oxides, sulfur dioxide, and soot are released into the atmosphere.
The most harmful industries are lead–zinc in the Ust-Kamenogorsk region, lead-phosphate in Shymkent, the phosphorus industry in Taraz, and chrome enterprises in Aktobe. The atmospheric air is most polluted over the East Kazakhstan, Karaganda, Pavlodar regions, and Atyrau region. In the cities of Kazakhstan, the main contribution to air pollution is made by road transport.
The poor quality of the fuel used and the lack of filters for cleaning exhaust gases, the poor condition of the rolling stock of car farms, the increase in the number of cars in cities, leads to the fact that a huge amount of carbon monoxide, lead, etc. is released into the atmosphere. The level of atmospheric air pollution by harmful emissions has been increased in fifteen cities of the republic.
Among these cities are Zyryanovsk, Aktau, Temirtau, Taraz, Petropavlovsk, Shymkent, Almaty. The high level of air pollution in cities is a consequence of outdated production technologies, inefficient sewage treatment plants, and the poor quality of the fuel used. The main pollutants are dust, sulfur dioxide, nitrogen dioxide, hydrocarbons, phenol, lead, hydrogen sulfide, hydrogen chloride, ammonia, etc. Each of these substances has its own negative effect on health.
Dust, for example, causes diseases of the respiratory tract, liver, and blood. The most dusty cities in Kazakhstan are Aktau, Atyrau, Zhezkazgan, Semipalatinsk, Ust-Kamenogorsk. High carbon monoxide content is observed in cities such as Almaty, Aktobe, Karaganda, Kostanay, Petropavlovsk, Pavlodar, Semipalatinsk and some others.
Nowadays, the factor of economic efficiency of any activity aimed at improving the environment and rationalizing the use of natural resources is becoming increasingly important, for which new waste-free, low-waste, resource-saving technologies, modern sewage treatment plants, etc. are being introduced.
However, as judicial practice shows, our legislation lacks a flexible mechanism for paying for pollution, preferential taxation of environmental protection activities, i.e. the so-called "green" taxes that exist in developed European countries, support for entrepreneurial and innovative activities aimed at protecting the environment, and other mechanisms that encourage entrepreneurs to reduce the amount of waste generated, emissions and discharges into the environment and the desire to involve production waste in reuse, that is, ways to economically stimulate environmental protection by enterprises.
The incentive measures provided for in the Environmental Code of the Republic of Kazakhstan remain unclaimed due to the lack of necessary norms in legislation establishing specific ways of their implementation.
Preparation and appointment for trial
Judicial practice in accepting claims related to environmental protection for court proceedings complies with the requirements of Articles 150,151,247 of the Code of Civil Procedure and is correct.
When accepting a statement of claim, the courts complied with the requirements of art. 31 of the CPC on filing claims in court at the defendant's place of residence, against a legal entity - at the location of the body of the legal entity.
Grounds for the return of claims.
The return of the statement of claim is provided for in Articles 154 of the CPC RK. The judge returns the statement of claim if:
1) the plaintiff has not complied with the procedure for preliminary pre-trial dispute resolution established by the contract or the legislation of the Republic of Kazakhstan for this category of cases and the possibility of applying this procedure has not been lost;
2) the case is beyond the jurisdiction of this court;
3) the application was submitted by an incompetent person;
4) the application is signed by a person who does not have the authority to sign it.;
5) in the proceedings of the same or another court or arbitration or arbitration court, there is a case on a dispute between the same parties, on the same subject and on the same grounds;
5-1) an agreement has been concluded between the parties in accordance with the law on the transfer of this dispute to arbitration or an arbitration court, unless otherwise provided by legislative acts of the Republic of Kazakhstan.;
6) the body authorized to manage communal property has applied to the court for recognition of the right of communal ownership of an immovable thing before the expiration of one year from the date of registration of this thing by the body carrying out state registration of the right to immovable property, with the exception of the case specified in the second part of paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan;
7) this was stated by the plaintiff.
On the return of the application, the judge issues a reasoned ruling in which he indicates which court the applicant should apply to if the case is beyond the jurisdiction of this court, or how to eliminate the circumstances preventing the initiation of the case. The ruling on the return of the statement of claim must be issued within five days from the date of its receipt by the court and handed over or sent to the applicant with all the documents attached to the application.
The return of the application does not prevent the plaintiff from filing a lawsuit against the same defendant again, on the same subject and on the same grounds, if they eliminate the violation.
A private complaint or protest may be filed against the judge's decision to return the application.
In particular, by the definition of the specialized interdistrict economic court of the Pavlodar region, the statement of claim of the NGO "World of Ecology" to the Pavlodar regional branch of the Kazakhavtodor RSE for the recognition of public hearings, the protocol of public hearings dated December 05, 2014, the program of environmental protection measures for 2015-2018 and the permit for emission into the environment dated March 11, 2015 illegal, returned.
The reason for the return of the statement of claim was the fact that the judge's ruling of June 05, 2015, left the statement without motion, since the statement of claim did not contain information about the defendant.
In the submitted application, the defendant indicated the Pavlodar regional branch of the Kazakhavtodor RSE, whereas paragraph 1 of Article 48 of the CPC of the Republic of Kazakhstan stipulates that the defendants are legal entities.
In this regard, this statement of claim, according to paragraph 2 of Article 155 of the Civil Procedure Code of the Republic of Kazakhstan, is considered not filed and, by the judge's ruling, is subject to return to the applicant with all the documents attached to it.
Also, by the ruling of the Specialized Interdistrict Economic Court for the Zhambyl region dated August 25, 2015, the claim of the Russian State Institution "Department of Ecology for the Zhambyl region of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan was returned to Pak S.I. a statement of claim has been returned to Pak S.I. about the termination of activities in the NEIA of the Russian State Institution "Department of Ecology for the Zhambyl region of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan" due to the fact that from the representative of the plaintiff – the head of the Department M.Konisbekov received an application for the return of the statement of claim.
Jurisdiction over Disputes related to environmental protection - lawsuits filed by individuals
Article 30 of the Civil Procedure Code of the Republic of Kazakhstan stipulates that specialized inter-district economic courts consider civil cases on property and non-property disputes, the parties to which are citizens engaged in business activities without forming a legal entity, legal entities, corporate disputes, as well as civil cases on the restructuring of financial organizations and organizations belonging to a banking conglomerate in as a parent organization and non-financial organizations, in the following cases:, provided for by the laws of the Republic of Kazakhstan.
A claim in these civil cases, with the exception of cases on the restructuring of financial organizations and organizations that are part of a banking conglomerate as a parent organization and are not financial organizations, may be filed if the plaintiff complies with the pre-trial dispute settlement procedure provided for in the contract or legislation of the Republic of Kazakhstan. (Subject to the amendments introduced by the Law of the Republic of Kazakhstan dated November 17, 2014 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the further administration of justice and reduction of bureaucratic procedures").
According to part 3 of Article 32 of the Civil Procedure Code of the Republic of Kazakhstan, a claim arising from the activities of a branch or representative office of a legal entity may also be filed at the location of the branch or representative office. On the basis of these norms, cases of this category are subject to the jurisdiction of specialized inter-district economic courts.
By the ruling of the Yessil District Court of Astana dated January 19, 2015, the claim of the RSU "Department of Ecology for Astana of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan" was returned to Abdirov A.D., Beisembaev B.M. for damages, while the court indicated that the plaintiff indicated the location addresses of the defendants – Astana city, 71 (111)Zhenis ave., sq.48, and ul.Tlendieva, 15, building 4, sq. 97.
These addresses belong to the territory of the Saryarkinsky district of Astana. Since the defendants do not reside in the jurisdiction of the court, the court returned the statement of claim with a recommendation to apply to the Saryarkinsky District Court of Astana at the place of residence of the defendants.
Civil cases in absentia on disputes related to environmental protection - claims of individuals
Cases of this category are considered according to the rules of claim proceedings provided for in Chapter 24 of the CPC.
Also, the courts, when resolving cases of this category, are guided by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision" and March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedural legislation". The exhaustive grounds for considering the case in absentia are given in Article 260 of the CPC.
The reason for the absentee proceedings in the case is the failure to appear at the court session of the defendant, who was duly notified of the time and place of the meeting, did not inform about the valid reasons for the non-appearance and did not ask for consideration of the case in his absence.
The quality of drafting procedural documents
A judicial act must have a clear structure, be stylistically and grammatically correct. Therefore, when making a decision, judges are obliged not only to comply with the requirements of procedural legislation on the legality, validity and reasonableness of a judicial act, but also to be responsible for the presentation and execution, since competent presentation and proper execution of procedural documents is an indicator of a judge's high professional culture, respect for participants in court proceedings and other persons.
Judicial acts of the courts of the Republic of Kazakhstan are subject to registration taking into account the provisions of the Code of Civil Procedure, as well as the regulatory decree of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On Judicial Decision" (with amendments and additions made by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan No. 6 dated June 29, 2006 and No. 2 dated January 12, 2009).
According to Part 3 of Article 221 of the CPC, the introductory part of the decision specifies: the date and place of the decision; the name of the court that issued the decision; the composition of the court; the secretary of the court session; the parties; other persons participating in the case and representatives; the subject of the dispute or the stated claim.
In the introductory part of the decision, based on established judicial practice, it is necessary to indicate information about documents certifying the powers of representatives (power of attorney, warrant) with the date of issue.
Subjects of environmental pollution, environmental protection facilities
The plaintiffs in cases of compensation for damage caused to the environment are territorial divisions of state bodies performing environmental protection functions, business entities, as well as public associations and citizens.
Any legal and natural persons, state and non-state, national and foreign, can act as subjects of pollution (harm-makers). The sources of pollution are objects from which harmful substances are discharged or otherwise released into the environment. The methods of environmental pollution are:
1) business activities carried out in violation of established rules and regulations;
2) other illegal activities not related to environmental management;
3) accidents and catastrophes;
4) the importation of environmentally hazardous goods and substances into the territory of the country; The object of an environmental offense is both natural resources (soil, subsoil, water, forests and other vegetation, wildlife) and natural objects not related to natural resources (specially protected natural territories, atmospheric air, animals and plants listed in the The Red Book, etc.).
In addition, the objects of environmental violations may be the climate and other natural ecological systems, management relations in the field of environmental management, property rights and other rights to natural resources, etc.
On claims of individuals
In accordance with Article 13 of the Environmental Code of the Republic of Kazakhstan 1.Individuals have the right to:
1) an environment favorable for their life and health;
2) implement measures to protect and improve the environment;
3) create public associations and environmental protection funds;
4) participate in the decision-making process by state bodies on issues related to the environment in accordance with the procedure established by the legislation of the Republic of Kazakhstan;
5) to participate in meetings, rallies, pickets, marches and demonstrations, referendums in the field of environmental protection in accordance with the legislation of the Republic of Kazakhstan;
6) apply to government agencies with letters, complaints, statements and proposals on environmental protection issues and request their consideration;
7) receive timely, complete and reliable environmental information from government agencies and organizations;
8) participate in the discussion of draft regulatory legal acts on environmental protection issues at the stage of their preparation and submit their comments to the developers;
9) participate in the preparation of plans and programs related to the environment;
10) make proposals on conducting a public environmental assessment and take part in it;
11) demand the cancellation by administrative or judicial procedure of decisions on the placement, construction, reconstruction and commissioning of enterprises, structures and other environmentally hazardous facilities, as well as on the restriction and termination of economic and other activities of individuals and legal entities that have a negative impact on the environment and human health;
12) file lawsuits in court for compensation for damage caused to their health and property as a result of violation of the environmental legislation of the Republic of Kazakhstan. 2. Individuals are obliged to:
1) preserve the environment, take care of natural resources;
2) to promote the implementation of measures aimed at the rational use of natural resources, environmental protection and environmental safety;
3) to prevent threats to environmental safety that may arise due to their fault;
4) carry out their activities in accordance with the environmental legislation of the Republic of Kazakhstan.
Individuals have other rights and duties established by the laws of the Republic of Kazakhstan.
Regulatory framework
The main regulatory legal acts regulating disputes on environmental issues are:
The Constitution of the Republic of Kazakhstan,
Environmental Code of the Republic of Kazakhstan dated January 09, 2007,
The Civil Code of the Republic of Kazakhstan,
The Land Code of the Republic of Kazakhstan,
Water Code of the Republic of Kazakhstan,
The Law of the Republic of Kazakhstan "On Subsoil and Subsoil Use" dated June 24, 2010,
The Law of the Republic of Kazakhstan "On Specially Protected Natural Territories" dated July 07, 2006.
The courts also apply international treaties in the field of environmental protection, ratified by Kazakhstan, including the norms of the Convention on Access to Information, Public Participation in Decision–making and Access to Justice in Environmental Matters (hereinafter referred to as the Aarhus Convention), ratified by the Law of the Republic of Kazakhstan dated October 23, 2000.
Generally recognized environmental principles and directions of international cooperation are defined by the Stockholm Declaration on the Environment (1972), the World Charter of Nature (1982), the Declaration on Environment and Development (Rio de Janeiro, 1992), the "Agenda for the 21st Century" (Rio de Janeiro, 1992), the declarations of the Millennium Summit (New York, 2000), the World Summit on Sustainable Development (Johannesburg, 2002)[2] and other international acts.
These acts have great international authority and are implemented both in international conventions and in the national law of many States, including the Republic of Kazakhstan (hereinafter referred to as the "ROK").
Kazakhstan is a member and an active participant in various international commissions and processes aimed at developing and implementing international agreements on environmental protection and sustainable development at the global and regional levels.
Among them is the UN Commission on Sustainable Development.;
Interstate Commission for Sustainable Development of Central Asian Countries;
The regional Eurasian network of the World Council of Entrepreneurs for Sustainable Development;
Interstate Council for Hydrometeorology of the CIS;
the processes "Environment for Europe" and "Environment and sustainable development for Asia".
Cooperation is developing with the United Nations Development Program, the World Wildlife Fund (WWF) and other international organizations.
In total, it is estimated that over 60 international treaties of the Republic of Kazakhstan directly or indirectly affect the field of environmental protection (including issues of emissions into the environment, protection of the ozone layer from greenhouse gas emissions, prevention of pollution from ships, trade and transportation of hazardous chemicals, industrial safety at hazardous production facilities and prevention of accidents, transboundary impacts and others.)
The Code of the Republic of Kazakhstan dated January 9, 2007 No. 212-III "Environmental Code of the Republic of Kazakhstan" (hereinafter referred to as the "Environmental Code" or "EC") establishes the priority of international treaties ratified by the Republic of Kazakhstan over the provisions of the Code (paragraph 2 of art. 2 EC).
In 2015, regulations were issued, such as:
"On approval of the List of environmentally hazardous types of economic and other activities" (Order of the Minister of Energy of the Republic of Kazakhstan dated January 21, 2015 No. 27. Registered with the Ministry of Justice of the Republic of Kazakhstan on February 20, 2015 No. 10301);
"On approval of qualification requirements for a licensed type of activity in the field of environmental protection and a list of documents confirming compliance with them" (Order of the Minister of Energy of the Republic of Kazakhstan dated January 14, 2015 No. 6. Registered with the Ministry of Justice of the Republic of Kazakhstan on February 26, 2015 No. 10333).
In addition, the courts, when resolving cases of this category, are guided by the regulatory rulings of the Supreme Court of the Republic of Kazakhstan "On the practice of courts applying legislation on environmental protection" No. 16 dated December 22, 2000, "On certain issues of courts applying the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan" No. 20 dated December 24, 2010.
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