Issuance of a Private Ruling Due to Failure to Comply with the Time Limit for Initiating Enforcement Proceedings

By the decision of the Specialized Interdistrict Administrative Court dated July 1, 2024, the claim of Azambayev D.K. against Private Bailiff Zhangudiyev D.K. challenging the ruling on the initiation of enforcement proceedings and all subsequent actions taken within the framework of the enforcement proceedings was fully satisfied (Case No. 6394-24-00-4/330).

At the same time, the court considered it necessary to issue a private ruling and draw the attention of the Head of the Regional Chamber of Private Bailiffs of the East Kazakhstan Region to the following circumstances.

According to paragraph 1 of Article 37 of the Law on Enforcement Proceedings, a bailiff initiates enforcement proceedings on the basis of an enforcement document upon the application of the creditor, unless otherwise provided by this Law and other legislative acts of the Republic of Kazakhstan.

After receiving an enforcement document that complies with the requirements established by the legislation of the Republic of Kazakhstan, the bailiff must initiate enforcement proceedings no later than three working days and issue a corresponding ruling (paragraph 4 of Article 37 of the Law on Enforcement Proceedings).

The court established that the enforcement proceedings were initiated on the basis of a writ of execution issued pursuant to a court decision dated December 12, 2023, which entered into legal force on January 16, 2024.

Paragraph 1 of Article 38 of the Law on Enforcement Proceedings sets forth the grounds on which a bailiff is obliged to issue a ruling refusing to initiate enforcement proceedings. This list is exhaustive and is not subject to broad interpretation.

Having examined the materials of the enforcement proceedings, the court found that the defendant had several grounds for refusing to initiate enforcement proceedings.

In particular, pursuant to subparagraph 10) of paragraph 1 of Article 38 of the Law on Enforcement Proceedings, within three working days from the receipt of an enforcement document, the bailiff must issue a ruling refusing to initiate enforcement proceedings if the period established by paragraph 1-1 of Article 11 of the Law has not yet expired.

Paragraph 1-1 of Article 11 of the Law on Enforcement Proceedings provides that enforcement documents may be submitted for compulsory execution no earlier than five working days after they have entered into legal force, except for documents specified in subparagraph 4) of paragraph 1 of the same article.

Considering that the writ of execution was issued on the basis of a court decision and is not a resolution of a body (official) authorized to consider cases of administrative offenses, the defendant should have issued a ruling refusing to initiate enforcement proceedings for the recovery of debt from the debtor in favor of the creditor, since the period established by paragraph 1-1 of Article 11 of the Law on Enforcement Proceedings had not yet expired.

The court reliably established that the defendant not only initiated enforcement proceedings on the very day the court decision entered into legal force, namely January 16, 2024, but also sold movable property belonging to the debtor, distributed all proceeds from the sale of the seized property, and withheld remuneration for his services. These actions contradict the requirements of Article 11 of the Law on Enforcement Proceedings and indicate their unlawfulness.

Moreover, the enforcement proceedings file contains a judicial act attached to the writ of execution that lacks a mark confirming its entry into legal force. It does not contain the judge’s electronic digital signature indicating the date on which the judicial act entered into legal force, nor the judge’s handwritten signature and the court seal. Under such circumstances, the defendant was also obliged to refuse the initiation of enforcement proceedings pursuant to subparagraph 8) of paragraph 1 of Article 38 of the Law on Enforcement Proceedings.

The enforcement proceedings file also lacks reliable evidence confirming that the debtor was properly notified of the initiation of enforcement proceedings.

In view of the foregoing, the court concluded that the violations committed demonstrated the private bailiff’s insufficient knowledge of the relevant legislation. Accordingly, the court issued a private ruling for the adoption of appropriate measures and to prevent similar violations in the future, and brought it to the attention of the Head of the Regional Chamber of Private Bailiffs of the East Kazakhstan Region.

The private ruling was appealed by the defendant to the appellate court, whose decision left the private ruling unchanged.

According to the response of the Regional Chamber of Private Bailiffs of the East Kazakhstan Region dated September 29, 2024, the private ruling was reviewed at a meeting.

However, this approach of the Chamber was merely formal in nature, as no measures were taken against the private bailiff following the review.

While courts identify violations and respond by issuing private rulings, the Regional Chamber of Private Bailiffs effectively shields unscrupulous private bailiffs by failing to take any effective measures.

Formulation of Claims

When filing administrative claims challenging the actions (or omissions) of bailiffs, claimants formulate their requests in various ways.

Most disputes in this category are considered through claims for annulment, claims to compel action, and claims requiring the performance of certain actions (Articles 132–134 of the Administrative Procedural Code).

Pursuant to Article 132 of the Administrative Procedural Code, where an onerous administrative act violates the rights, freedoms, or legitimate interests of a claimant, the claimant may file an action seeking the annulment of the administrative act in whole or in part.

Where a claimant disagrees with a ruling issued by a bailiff, the claim should seek recognition of that ruling as unlawful. Simultaneously filing a separate claim seeking recognition of the bailiff’s actions as unlawful is not required.

In accordance with Part 2 of Article 84 of the Administrative Procedural Code, an unlawful administrative act may be annulled in whole or in part.

Where a ruling is found to be unlawful, the court annuls the ruling.

Return of a Claim

Part 2 of Article 138 of the Administrative Procedural Code provides for seventeen grounds for returning an administrative claim.

Claims in this category are most frequently returned on the following grounds:

• Subparagraph 6) of Part 2 of Article 138 – the claimant has withdrawn the filed claim;
• Subparagraph 9) of Part 2 of Article 138 – the parties have concluded a settlement agreement, mediation agreement, or participatory procedure agreement, and it has been approved by the court;
• Subparagraph 11) of Part 2 of Article 138 – the case is not subject to consideration under administrative court proceedings;
• Subparagraph 17) of Part 2 of Article 138 – the case falls outside the jurisdiction of the respective court.

An additional ground for returning a claim is provided by Part 8 of Article 136 of the Administrative Procedural Code, according to which the failure to file a claim within the prescribed time limit without a valid reason, as well as the impossibility of restoring the missed procedural deadline, constitutes grounds for returning the claim.

Courts do not encounter difficulties in resolving issues concerning the return of claims in this category of cases.

At the same time, the implementation of the principle of the court’s active role has significantly increased the number of cases resolved amicably through settlement agreements or withdrawal of claims.

Time Limit for Appealing a Court Decision

Part 4 of Article 168 of the Administrative Procedural and Process-Related Code (APPC) provides that an appeal and a prosecutor’s petition in administrative cases challenging the actions (or omissions) of bailiffs may be filed within ten working days from the date the decision is issued in its final form. The final version of the decision must be prepared no later than ten working days after the announcement of the decision. Amendments to this provision were introduced on November 21, 2024, in implementation of the Constitutional Court of the Republic of Kazakhstan’s Resolution No. 33-NP of October 6, 2023, “On Reviewing the Constitutionality of the First Paragraph of Part 4 of Article 168 of the APPC.”

As follows from Constitutional Court Resolution No. 33-NP of October 6, 2023, the provisions of Part 4 of Article 168 of the APPC derive from Part 2 of the same article, which establishes the general rules for appealing court decisions that have not yet entered into legal force and provides that the appeal period is calculated from the date the court decision is issued in its final form.

Accordingly, the ten-working-day period established for filing an appeal and a prosecutor’s petition in administrative cases challenging the actions (or omissions) of bailiffs must be calculated from the date the decision is issued (prepared) in its final form. This is because the appeal period established by the APPC (ten working days from the date of the court decision) could otherwise expire before the final version of the decision is prepared, thereby depriving the parties of the opportunity to review its reasoning and fully exercise their right to appeal.

The Constitutional Court noted that such regulation may 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 further observed that the terms used in the APPC (“date of the decision,” “date of preparation of the decision in final form,” etc.) lack sufficient legal precision and allow for ambiguous interpretation, thereby creating risks of violating the rights of participants in the proceedings.

As a result, the Constitutional Court held that the challenged provision complies with the Constitution only to the extent that the time limit for filing an appeal and a prosecutor’s appellate petition in the categories of administrative cases specified in Part 4 of Article 168 must be calculated not from the announcement of the operative part of the decision, but from the date the court decision is issued (prepared) in its final form.

Prior to the introduction of the above amendments to Part 4 of Article 168 of the APPC, local courts interpreted this provision differently with regard to calculating the time limit for appealing decisions of courts of first instance.

The Judicial Panel for Administrative Cases of the Supreme Court confirmed the priority of the constitutional and legal interpretation of procedural rules and established a uniform practice of calculating appeal periods from the date the decision is prepared in its final form.

This practice is of systemic importance, as it eliminates inconsistencies in judicial practice and ensures that parties have a genuine opportunity to exercise their right to judicial protection within administrative proceedings.

Evidence and Proof

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

When challenging the actions of a private bailiff in court, evidence may consist of various documents and materials confirming violations committed by the private bailiff. It is necessary to establish specific facts indicating unlawful actions or omissions.

Evidence (the enforcement case file, bound and numbered) may include:

Enforcement Document

• The original or a certified copy of the writ of execution or court order on the basis of which the private bailiff acted.
• The rulings of the private bailiff being challenged, indicating their date and content.

Documents Confirming Violations

• Payment receipts;
• Correspondence with the private bailiff;
• Notices (including reports confirming delivery of SMS notifications);
• Witness statements;
• Property valuation reports;
• Property inventory protocols;
• Inspection reports;
• Certificates confirming non-residence;
• Photographs;
• Video recordings;
• Any other materials confirming violations of the applicant’s rights and legitimate interests.

Complaints Submitted to Justice Authorities or the Chamber of Private Bailiffs

If a complaint regarding the actions of a private bailiff was filed, copies of the complaint and responses thereto may also be used as evidence.

Witness Testimony

Witnesses who can confirm the circumstances of the case may be summoned to court to testify.

Recovery of State Duty

Claimants filing actions challenging the actions (or omissions) of bailiffs are exempt from paying state duty when filing a claim pursuant to Subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget” (Tax Code).

Under Part 1 of Article 122 of the APPC, issues relating to the allocation of court costs are resolved in accordance with the rules of the CPC.

Pursuant to Part 1 of Article 117 of the CPC, state duty from which the claimant was exempt, as well as litigation expenses, shall be recovered from the defendant who is not exempt from court costs and paid into state revenue in full or proportionally to the satisfied portion of the claim.

Where a claim is granted, state duty shall be recovered from the bailiff and paid into the local budget in proportion to the satisfied portion of the claim.

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

Application of Procedural Coercive Measures

Where violations of procedural legislation are established during the consideration of a case, procedural coercive measures in the form of monetary penalties may be imposed.

Under Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to fulfill procedural obligations, including cases where evidence is submitted or court instructions are executed after the court-established deadline without valid reasons, if such conduct resulted in delays in the consideration of the administrative case. The penalty may amount to ten Monthly Calculation Indices (MCI) for each act or omission.

For failure to comply with a court request or inquiry, failure of a participant in the administrative proceedings to appear in court, failure to timely notify the court, failure to timely submit a response, disobedience to the presiding judge’s orders during a hearing, violation of court rules, or any other acts (or omissions) clearly demonstrating contempt for the court and/or judge, the court may impose a monetary penalty of twenty MCI.

For failure to comply with a court decision or a court ruling approving a settlement agreement, mediation agreement, or participatory procedure agreement, the court shall impose a monetary penalty on the defendant in the amount of fifty MCI and specify in the same judicial act a compliance period not exceeding one month.

During the period under review, courts developed a practice of applying procedural coercive measures in the form of monetary penalties.

In disputes concerning challenges to the actions (or omissions) of bailiffs, monetary penalties were most frequently imposed on defendants for the following reasons:

• Failure to submit a response in a timely manner;
• Late submission of enforcement proceedings materials;
• Submission of incomplete enforcement proceedings materials;
• Failure to appear (or connect online) at a court hearing without a valid reason.

Abbreviations Used

• APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;
• CPC – Civil Procedure Code of the Republic of Kazakhstan;
• CC – Civil Code of the Republic of Kazakhstan;
• Law on Enforcement Proceedings – Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs”;
• NSC Resolution – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;
• Rules – Rules for the Sale of Seized Property, Including Through Electronic Auction Procedures;
• AIAS “Torelik” – Automated Information and Analytical System of the Judicial Authorities of the Republic of Kazakhstan;
• Judicial Panel for Administrative Cases of the Supreme Court – Administrative Cases Chamber of the Supreme Court of the Republic of Kazakhstan;
• Panel – Judicial Panel for Administrative Cases;
• SIAC – Specialized Interdistrict Administrative Court;
• Justice Department – Department(s) of Justice;
• State Bailiff – State Judicial Enforcement Officer(s);
• Private Bailiff – Private Judicial Enforcement Officer(s);
• Enforcement Proceedings – Enforcement Case/Proceedings.

Principal Regulatory Legal Acts Governing Enforcement Proceedings

• Constitution of the Republic of Kazakhstan;
• Administrative Procedural and Process-Related Code (APPC);
• Civil Code (CC);
• Civil Procedure Code (CPC);
• Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs”;
• Law of the Republic of Kazakhstan “On Valuation Activities in the Republic of Kazakhstan”;
• Law of the Republic of Kazakhstan “On Mediation”;
• Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
• Normative Resolution of the Supreme Court of March 31, 2017 No. 1 “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;
• Normative Resolution of the Supreme Court of December 19, 2003 No. 12 “On Liability for Failure to Execute Judicial Acts”;
• Normative Resolution of the Supreme Court of January 12, 2009 No. 2 “On the Adoption of Interim Measures in Civil Cases”;
• Normative Resolution of the Supreme Court of November 29, 2024 No. 5 “On Judicial Decisions in Administrative Cases”;
• Normative Resolution of the Supreme Court of November 29, 2019 No. 6 “On the Application of Legislation in Cases Related to the Recovery of Alimony”;
• Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 “On Approval of the Rates of Remuneration for the Activities of Private Bailiffs” (repealed on July 13, 2023);
• Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372 “On Approval of the List of Types of Wages and/or Other Income from Which Alimony for Minor Children Is Withheld”;
• Order of the Minister of Justice of the Republic of Kazakhstan dated June 27, 2023 No. 416 “On Approval of the Rates of Remuneration for the Activities of Private Bailiffs”;
• Order of the Minister of Justice of the Republic of Kazakhstan dated March 28, 2019 No. 148 “On Approval of Standard Forms of Rulings Issued by Private Bailiffs.”

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