Impose a monetary penalty on a private bailiff
On March 04, 2023, the Specialized Interdistrict Administrative Court of Almaty city, consisting of: the presiding judge Keldybaev G.P. with the participation of representatives of the parties to the case: the plaintiff's representative Nurlanova N.N., the defendant S.D.T. having considered using mobile videoconference during the preliminary hearing the issue of imposing a monetary penalty against the defendant of a private bailiff of the executive district Almaty city S.D.T. in an administrative case on the claim of E.Zh. to a private bailiff of the executive district of Almaty S. D.T. on the cancellation of the decree on foreclosure on property, on the seizure of property, on the transfer of seized property for sale dated February 24, 2023; on the cancellation of the decree on the seizure of immovable property; oblige to eliminate violations of rights,
The court found that E.Zh. filed the above-mentioned administrative claim against the private bailiff of the executive district of Almaty, S.D.T.
The preliminary hearing and trial are scheduled for March 24 and April 03, 2023, respectively, by a court ruling dated March 17, 2023, the court ordered defendant S.D.T. to submit enforcement proceedings against debtor E.J. by April 03, 2023, however, the private bailiff did not submit enforcement proceedings either in paper or electronic format, to according to the deadline specified by the court, explaining that he did not have time and the enforcement proceedings were not submitted to the court during the preliminary hearing.
Having studied the materials of the administrative case, having listened to the opinion of the parties to the case, the court comes to the following conclusion: In accordance with part 4 of Article 127 of the CPC, the court imposes a monetary penalty in the cases established by this Code. Thus, for failure to comply with a requirement or a court request, failure to appear in court of a person involved in an administrative case, late submission of a review, disobedience to the orders of the presiding judge, violation of the rules established in court, as well as other actions (inaction) clearly indicating disrespect for the court and (or) the judge, the court has the right to impose monetary penalties. a penalty in the amount of twenty monthly calculation indices.
By virtue of articles 28, 29, 127, 138 of the CPC, participants in administrative proceedings bear the risk of procedural consequences depending on the performance or non-performance of their procedural duties. Based on the tasks of administrative proceedings to resolve administrative cases in a timely manner in order to effectively protect the violated rights and legitimate interests of persons and promote the rule of law in public relations, the Court considers it necessary to respond to this fact by imposing a monetary penalty (Articles 5, 127 of the CPC).
The right of the court to impose a monetary penalty upon establishing the facts of non-fulfillment of procedural duties follows from the principle of independence and independence of the judiciary and serves as one of the manifestations of the discretionary powers of the court necessary for the administration of justice in the context of administrative justice.
Similarly, the imposition of a monetary penalty also contributes to the realization of such a task of judicial proceedings as the formation of respect for the law and the court (part 3 of Article 1 of the CPC and Article 4 of the Civil Procedure Code of the Republic of Kazakhstan). Considering that the defendant has not fulfilled the court's requirements for the provision of documents on enforcement proceedings, the court has grounds to impose a monetary penalty on him in the amount of 20 monthly calculation indices.
In determining the amount of the penalty, the court proceeded from the fact that this amount is fixed and proportionate to the consequences of the defendant's failure to perform procedural duties, which undermines the credibility of government agencies and diminishes the authority of the court in the eyes of the public, which is unacceptable.
Guided by Articles 1, 118, 127, 138 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan, the court DETERMINED: To impose a monetary penalty on a private bailiff of the executive district of Almaty, S.D.T. in the amount of 20 monthly calculation indices, which amounts to 69,000 (sixty-nine thousand) tenge in the income of the republican budget.
To clarify that: - an appeal against this ruling does not suspend the execution of measures of procedural coercion. Filing a private complaint against the application of a monetary penalty is allowed after the execution of the imposed penalty; - the application of procedural coercion measures to a person does not release this person from fulfilling the relevant duties established by the APPC; - payment of a monetary penalty is carried out within five working days from the date of delivery of the ruling, and it is collected to the income of the republican budget; - in case of non-fulfillment of a judicial act or a court requirement specified in parts 3 and 4 of Article 127 of the CPC, the court has the right to impose a repeated monetary penalty on the person in the amount increased by ten monthly calculation indices.
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