Disputes related to environmental protection

When accepting claims related to environmental protection for court proceedings, it must comply with the requirements of Articles 150,151,247 of the Civil Procedure Code.

The form and content of the accepted statements of claim must comply with the requirements of Chapter 14 of the CPC.

When filing a statement of claim, it is necessary to comply with the requirements of the CPC on filing claims in court at the defendant's place of residence, to 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 15a 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.

Example: 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.

Jurisdiction over disputes related to environmental protection

             Article 27 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").

             In 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.

For example: By the ruling of the Yessil District Court of Astana dated January 19, 2015, the claim of the RSU "Department of Ecology for Astana city 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,

At the same time, the court indicated that the plaintiff indicated the location addresses of the defendants – Astana, 71 (111) Zhenis Ave., sq.48, andTlendieva, 15, building 4, 97 block. 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.

 

Drafting of 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 Article 226 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 the 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.

In recent years, courts have increasingly applied the norms of international environmental treaties ratified by Kazakhstan, including the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. It can be stated that the courts have a clear understanding of the provisions of paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan, according to which international treaties ratified by the Republic take precedence over its laws and are applied directly. This also applies to the Aarhus Convention.

The peculiarity of the Aarhus Convention is that this international treaty establishes procedural rules aimed at ensuring and guaranteeing the public the right to access justice in environmental matters. The Convention is one of the international treaties ratified by Kazakhstan, according to which citizens and non–governmental legal entities have the right to appeal to the international instance of the Committee on Compliance with the Aarhus Convention (hereinafter referred to as the Committee on Compliance with the Convention), with statements on the facts of its non-compliance. This opportunity is actively used by Kazakhstani citizens and environmental organizations.

In accordance with articles 13 and 14 of the Environmental Code, individuals and environmental organizations have the right to file lawsuits for 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.

So, as an example, the civil case considered by the Specialized Interdistrict Economic Court of the Pavlodar region in the case of the application of the Public Association "World of Ecology" to "Maikuben-West" LLP for invalidation of public hearings, the protocol of public hearings, recognition of the illegal plan of environmental protection measures, the obligation to hold public hearings on the plan of environmental protection measures for 2015, recognizing permits for emissions into the environment as illegal.

By the decision of this court dated April 30, 2015, the application was partially satisfied, the protocol of the public hearing was declared illegal and canceled.The rest of the application was denied.

The decision of the Appellate Judicial Board of the Pavlodar Regional Court dated July 07, 2015 amended the decision of the Specialized Interdistrict Economic Court of the Pavlodar region dated April 30, 2015 on the application of the Public Association "World of Ecology" to "Maikuben-West" LLP on invalidation of public hearings, the protocol of public hearings, recognition of the illegal plan of environmental protection measures, the obligation to hold public hearings according to the environmental action plan for 2015, the recognition of permits for emissions into the environment is illegal.

Regarding the satisfaction of the application of the NGO "World of Ecology" to Maykuben-West LLP for the cancellation and invalidation of the protocol of public hearings, the court's decision was reversed, with the adoption of a new decision to refuse to satisfy this part of the application.

The rest of the court's decision should remain unchanged. The Board found that, in accordance with paragraph 24 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan "On the practice of applying environmental legislation by courts" when considering cases in this category, courts should take measures to identify the nature of the violation, establish the legal grounds for the claims, and require the parties to submit relevant acts and other data, 64 of the CPC may be recognized as evidence in the case.

Regarding the refusal to satisfy the application for recognition of the environmental action plan for 2015, the environmental emission permit and the recognition of public hearings as illegal, the final conclusion of the court is correct, since these requirements are additional, the satisfaction of which depends on the satisfaction of the main requirement for invalidation of the hearing protocol. In addition, the case did not involve the proper defendant, the authorized body represented by 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, which directly issued the contested document, and the local executive body charged with conducting public hearings. In this regard, the decision regarding the refusal to satisfy the requirements must be left unchanged.

In support of the satisfaction of the application for invalidation of the protocol, the court referred to a letter from the akim of Shoptykol rural district on February 10, 2015 about the failure to hold hearings on l.d. 27 vol.1 and the lack of access to the issue under discussion by the interested public as a result.

At the same time, this letter is actually refuted by the following letter from the same akim dated March 23, 2015, informing the public association "World of Ecology" about the inaccuracy of the original letter dated February 10, 2015 and its inconsistency with reality. This letter is also available in the case file on l.d.119 t.1. However, these circumstances have not been properly assessed by the court.

In this regard, in order to eliminate these contradictions, the appellate instance interviewed as witnesses the persons indicated by the participants of the contested meeting and the akim who signed these letters.

Thus, the akim of the rural district, Izbastin B.B., explained that on September 29, 2014, the hearings were actually held, which was announced in advance on the website. Since he had not yet been appointed akim of the rural district, he did not participate in the hearings himself. The initial letter was signed by him according to erroneous information heard from specialist Bismeldinova, who is not currently working in the akimat, as it turned out, she did not participate in the hearings and did not know about them. Subsequently, Akim found out from other employees that such hearings had actually been held, and a message about the hearings was immediately sent to the public association in this regard.

Other witnesses, having been warned about criminal liability for giving deliberately false testimony, testified the following in the court of appeal. Witness Isatayeva A.S. testified that the hearings had indeed been scheduled and held, she was acting as akim that day and had left for a meeting in the district. However, she knows that the hearings were scheduled and knows from the employees that the hearings were held, she did not take part in them, as she left for a meeting.

Another employee of the akimat, A.A. Zhakupova, confirmed in court that the hearings were held, and the persons indicated in the protocol, A.E. Kabysheva, an employee of the akimat, took part in them. 4-5 people from local residents came and asked only about road repairs. A representative from Astana, A.N. Koshpanova, also participated.. But the representative of the authorized body, Omarov A.B., arrived at the venue of the hearings later, about half an hour or an hour after they were held. There were no real proposals on the substance of the environmental protection issue from the participants either at the time of the hearing or later.

Thus, these explanations of the witnesses refuted the letter of the akim, which formed the basis for the decision to invalidate the protocol. In addition, this letter was refuted by the case materials, a letter from the same akim, which indicates that the court's conclusions contradict the case materials and the factual circumstances of the case, which, by virtue of paragraphs 3) of Part 1 of Article 364 of the CPC, is the basis for revoking the decision in this part.

It should be noted that the defendant, Maikuben-West LLP, in accordance with paragraph 8 of the Rules, published an announcement in the following wording: - that Maikuben-West LLP invites the population of the Shoptykol rural district, Bayanaul village, government agencies, public organizations and media representatives to public hearings on the approval of the draft environmental action plan. Wednesdays for 2015, which will be held on September 29, 2014 at 12:00 p.m. at the address: Bayanaul district, Shoptykol village, in the Akimat building. The contact phone number is 33-41-37."

This publication on the hearings complies with clauses 6 and 8 - 10 of the Rules for Public Hearings, approved by the Order of the Minister of Environmental Protection of the Republic of Kazakhstan dated May 7, 2007 No. 135-p (hereinafter referred to as the Rules). Thus, access of members of the public to the above-mentioned projects, reception and registration of comments and suggestions in paper or electronic form with an indication of the address, were actually provided. In addition, after the hearing, the protocol was published in accordance with the procedure prescribed by law, which was confirmed by witness Seregina S.Yu..

The purpose of the hearings is to provide access to projects, the implementation of which may directly affect the environment and the health of citizens, as well as plans for environmental protection measures and information about planned environmental protection measures. Such access is provided by the defendant.

According to Article 14 of the Environmental Code of the Republic of Kazakhstan, public associations are responsible for facilitating the implementation of measures aimed at the rational use of natural resources, environmental protection and environmental safety.

However, the applicant, being aware of such hearings and having a real opportunity to participate in them and make comments on the record, in accordance with paragraph 19 of the Rules, did not exercise this right.

And only after the hearings have been held and the environmental user has received permission to issue a formal appeal against the protocol. At the same time, the applicant did not submit any real proposals and amendments that could affect the results of the hearings and could be submitted by the public if they participated in the hearings.

There is also no evidence that Omarov A.B., a late representative of the Department of Ecology, and Isatayeva A.S., an employee of the Akimat, could not have influenced the results of the public hearings. There is no evidence of harm caused as a result of hearing poor-quality environmental impact assessment material. In other words, there is no evidence that the cancellation of the protocol of public hearings meets the objectives of environmental protection.

In the court of appeal, the applicant's representative replied to this question that the protocol had been appealed so that next time nature users would know about the inadmissibility of a formal approach to public hearings and that now there was such a public organization represented by the plaintiff.

However, these reasons for the claim in themselves cannot serve as a basis for satisfying the claim, since only violated rights and legally protected interests are subject to protection in court by virtue of Articles 8, 9 of the Civil Code and Article 8 of the CPC. At the same time, actions of individuals and legal entities aimed at abusing the right, as well as exercising the right in contradiction with its purpose, are not allowed. In case of non-compliance with these requirements, the court may refuse to protect the plaintiff's right.

In this regard, the decision regarding the cancellation of the protocol of public hearings and its invalidation is subject to cancellation with the adoption of a new decision in this part on the refusal to satisfy such requirements.

In addition, in accordance with paragraph 7 of the Rules, the organization of public hearings is entrusted to the local executive body, and not to the nature user, who acts only as a customer by submitting an application to the akimat for their holding.

However, the application was submitted only to the nature user, Maikuben West LLP. The application in this part has not been submitted to the proper respondent to the local executive body. Moreover, this protocol, by virtue of Article 280 of the CPC, could be appealed within three months from the day when the applicant became aware of the violation of his rights, freedoms or legally protected interests. By virtue of paragraph 18 of the Rules, the applicant had to find out about the existence of this protocol within five days after the hearing, that is, before October 7, 2014. Therefore, the deadline for appealing the protocol expired on January 7, 2015. However, the application was filed with the court only on February 11, 2015, that is, after missing the deadline requested by the defendant, which, by virtue of Part 2 of Article 280 of the CPC, is a separate ground for refusing to satisfy the stated claim.            

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,

Civil Code of the Republic of Kazakhstan, Land Code of the Republic of Kazakhstan,

The 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),

"Agenda for the 21st Century" (Rio de Janeiro, 1992), the Millennium Summit Declarations (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 are the United Nations Commission on Sustainable Development; the Interstate Commission for Sustainable Development of Central Asian Countries; the regional Eurasian network of the World Council of Entrepreneurs for Sustainable Development; the 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).

Regulatory acts 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 environment and the 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.

Paragraph 3 of article 9 of the Aarhus Convention regulates public access to administrative or judicial procedures to challenge the actions or omissions of individuals and public authorities that violate the provisions of national legislation related to the environment. This provision of the Convention is based primarily on the idea of using the potential of the public to ensure compliance with environmental legislation, rather than regulating issues of compensation for harm to individuals and legal entities.

The Aarhus Convention establishes the international legal framework for organizing the activities of government agencies to ensure the environmental rights of the public. It defines their responsibilities and tasks in relation to the three so-called basic elements of the Convention: (key environmental rights of the public). - public access to environmental information - public participation in making environmentally significant decisions related to planned economic activities, the development by executive authorities of draft strategies, programs, plans, and regulatory legal acts related to the environment. - Public access to justice in environmental matters.

In accordance with articles 13 and 14 of the Environmental Code, individuals and public associations are entitled to file lawsuits in court for compensation for damage caused to their health and property as a result of violations of the environmental legislation of the Republic of Kazakhstan. The Law "On Radiation Safety of the Population" provides for the right of citizens to compensation for damage caused to their life and health, and to compensation for property losses caused by exposure to ionizing radiation beyond the established limits, or as a result of a radiation accident, in accordance with the legislation of the Republic of Kazakhstan.

A number of other laws of the Republic of Kazakhstan also provide for the right of members of the public to compensation for damage caused as a result of violations of the law. These include the Labor Code, the Environmental, Water and Forest Codes, the laws "On the sanitary and epidemiological welfare of the population", architectural, urban planning and construction activities, radiation safety of the population, emergency situations of a natural and man-made nature, on specially protected natural territories, protection, reproduction and use of wildlife, etc.laws.

 

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