Issuance of a Special Ruling for Failure to Provide Information to the Parties to Enforcement Proceedings on the Initiation of Enforcement Proceedings or the Return of an Enforcement Document

Pursuant to paragraph 4 of Article 37 of the Law on Enforcement Proceedings, upon receipt of an enforcement document that complies with the requirements established by the legislation of the Republic of Kazakhstan, the enforcement officer shall initiate enforcement proceedings within no later than three working days and issue a ruling to that effect.

In accordance with Article 27 of the Law on Enforcement Proceedings, participants in enforcement proceedings shall be informed of enforcement actions and compulsory enforcement measures by means of a notice.

A notice or summons shall be sent by registered mail to the address specified in the enforcement document, unless the participant in the enforcement proceedings or their representative has provided another address, or to the participant’s place of employment. It may also be sent through other means of communication that provide confirmation of receipt or delivered to the addressee against signature.

A notice or summons addressed to a legal entity shall be sent to the address of its registered location or to the location of its branch or representative office.

A notice or summons sent to a party to enforcement proceedings by other means not prohibited by law, which ensure that the delivery of the notice is properly recorded, shall also constitute proper notification or summons.

In judicial practice, courts have identified violations committed by private enforcement officers, consisting of a failure to send notification of the initiation of enforcement proceedings, which resulted in adverse consequences for the claimant.

For example, by the decision of the Specialized Interdistrict Administrative Court (SMAC) dated December 20, 2023, the claim of the convicted person, V.V. Demyanenko, against private enforcement officer K.Zh. Zhusupbekov was satisfied. The claim sought recognition as unlawful of the actions relating to the return of the enforcement document without execution and the imposition of an obligation to terminate the enforcement proceedings (case No. 3994-23-00-4/999).

Following the consideration of the case, the court issued a special ruling to bring to the attention of the head of the Regional Chamber of Private Enforcement Officers the violations committed by the private enforcement officer. These violations consisted of the failure to send information regarding the initiation of enforcement proceedings to the Penal Enforcement System Institution, which resulted in adverse consequences for the claimant in the form of a refusal to grant conditional early release.

A decision was made to impose a disciplinary sanction on private enforcement officer K.Zh. Zhusupbekov in the form of a severe reprimand.

A similar case involving the return of an enforcement document without proper grounds also occurred in the Turkestan Region. The Specialized Interdistrict Administrative Court of the Turkestan Region considered the claim of D.T. Tastemirova against private enforcement officer Zh.Zh. Abilbekova seeking recognition as unlawful of the rulings on the return of the enforcement document and on the absence of alimony arrears, as well as an order requiring the calculation of arrears as of September 29, 2023 (case No. 5194-24-00-4/1252).

The court granted the claim, finding that the return of the court order had been carried out without a proper application and in violation of the requirements of Articles 63 and 64 of the Administrative Procedure and Process Code (APPC). It was also established that the calculation of arrears had not been carried out within the three-year period prescribed by law.

In connection with the identified violations, the court issued a special ruling addressed to the Regional Chamber of Private Enforcement Officers. According to the Chamber, a disciplinary sanction in the form of a severe reprimand was imposed on the private enforcement officer.

This example highlights the importance of complying with the established procedure for returning an enforcement document and calculating alimony arrears, particularly where the interests of minor children are affected.

Formulation of Claims

When filing an administrative claim challenging the actions (inaction) of enforcement officers, claimants formulate their claims in various ways.

In general, disputes within the category under review are considered through claims for contestation, coercion, and the performance of actions (Articles 132–134 of the Administrative Procedure and Process Code (APPC)).

Pursuant to Article 132 of the APPC, where the rights, freedoms, and legitimate interests of a claimant are violated by a burdensome administrative act, the claimant is entitled to file a claim for contestation seeking the full or partial cancellation of the administrative act.

Where a party disagrees with a ruling issued by an enforcement officer, the claim should seek recognition of that ruling as unlawful. It is not necessary to simultaneously file a claim seeking recognition of the enforcement officer’s actions as unlawful.

In accordance with Part 2 of Article 84 of the APPC, an unlawful administrative act may be cancelled in whole or in part.

Where a ruling is recognized as unlawful, the court shall cancel the relevant ruling.

Return of a Claim

Part 2 of Article 138 of the APPC provides for 17 grounds for the return of an administrative claim.

Cases within the category under review are most frequently returned on the following grounds:

Subparagraph 6) of Part 2 of Article 138 of the APPC — the claimant has withdrawn the filed claim;

Subparagraph 9) of Part 2 of Article 138 of the APPC — the parties have concluded a settlement agreement, a mediation agreement, or an agreement to resolve the dispute through a participatory procedure, and such agreement has been approved by the court;

Subparagraph 11) of Part 2 of Article 138 of the APPC — the case is not subject to consideration under administrative judicial proceedings;

Subparagraph 17) of Part 2 of Article 138 of the APPC — the case does not fall within the jurisdiction of the relevant court.

An additional ground for returning a claim is provided for in Part 8 of Article 136 of the APPC. Under this provision, missing the statutory deadline for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed deadline for applying to the court, constitute grounds for returning the claim.

Courts do not encounter difficulties in resolving the issue of returning claims in the category under analysis.

At the same time, the implementation of the principle of the court’s active role has made it possible to significantly increase the number of cases resolved amicably, including through the conclusion of agreements or the withdrawal of claims.

Time Limit for Appealing a Court Decision

Part four of Article 168 of the Administrative Procedure and Process Code (APPC) provides that an appeal or a prosecutor’s motion in administrative cases challenging the actions (inaction) of enforcement officers may be filed within ten working days from the date the decision is issued in its final form. The final-form decision shall be prepared no later than ten working days from the date the decision is announced. Amendments to this provision were introduced on November 21, 2024, pursuant to the Resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 33-NP “On consideration of the compliance of the first paragraph of part four of Article 168 of the Administrative Procedure and Process Code with the Constitution of the Republic of Kazakhstan.”

As follows from the Resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 33-NP “On consideration of the compliance of the first paragraph of part four of Article 168 of the Administrative Procedure and Process Code with the Constitution of the Republic of Kazakhstan,” the provisions of part four of Article 168 of the APPC derive from the provisions of part two of the same article, which establish the general rules for appealing court decisions that have not entered into legal force. The relevant time limit 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 motion in administrative cases challenging the actions (inaction) of enforcement officers must be calculated from the date the decision is issued (prepared) in its final form. This is because the time limit for filing an appeal established by the APPC — ten working days from the date the court decision is issued — may, in practice, expire before the decision is prepared in its final form. This deprives participants in the proceedings of the opportunity to familiarize themselves with the reasoning part of the decision and fully exercise their right to appeal.

The Constitutional Court indicated that such regulation may restrict the constitutionally guaranteed right to judicial protection, the right to qualified legal assistance, and the principle of equality of all persons before the law and the court.

The Constitutional Court noted that the concepts used in the APPC (“date of issuance of the decision,” “date of preparation of the decision in its final form,” etc.) are not sufficiently precise from a legal perspective and allow for ambiguous interpretation, thereby creating risks of violations of the rights of participants in the proceedings.

As a result, the Constitutional Court recognized the contested provision as consistent with the Constitution only insofar as the time limit for filing an appeal and a prosecutor’s appellate motion in the categories of administrative cases specified in part four of Article 168 of the APPC must be calculated not from the moment the operative part of the decision is announced, 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 a decision of a court of first instance.

The Administrative Case Law Collegium of the Supreme Court confirmed the priority of constitutional and legal interpretation of procedural rules and established a practice ensuring uniform calculation of the time limit for appellate review — 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 contributes to ensuring that the parties have a genuine opportunity to exercise their right to judicial protection within administrative proceedings.

Evidence and Proof

The procedure for the legal regulation of evidence, factual information inadmissible as evidence, the subject matter of proof and sources of evidence, as well as the collection, examination, assessment, and use of evidence (proof) and other provisions concerning evidence and proof, are governed by the provisions of the Civil Procedure Code, except for the specific features established by the APPC (Article 128 of the APPC).

When challenging the actions of a private enforcement officer (PEO) before a court, various documents and materials confirming violations committed by the PEO may serve as evidence. It is necessary to establish specific facts indicating unlawful actions or inaction.

The evidence contained in the enforcement proceedings, which should be bound and numbered, includes:

Enforcement Document:

The original or a certified copy of the writ of execution or court order on the basis of which the PEO acted.

The PEO’s contested rulings, indicating their dates and contents.

Documents Confirming Violations:

Payment receipts, correspondence with the PEO, notices (reports confirming delivery of SMS notifications), witness statements, property valuation reports, property inventory and seizure records, inspection reports, certificates confirming non-residence, photographs, video recordings, and any other materials confirming the violation of the applicant’s rights and legitimate interests.

Complaints Submitted to the Justice Authorities or the PEO Chamber:

Where a complaint has been filed against the actions of a PEO, a copy of the complaint and the responses thereto may also be used as evidence.

Witness Statements:

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

Recovery of State Duty

Claimants filing claims to challenge the actions (inaction) of enforcement officers are exempt from paying state duty when filing a claim with the court pursuant to subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (the Tax Code).

In accordance with Part 1 of Article 122 of the Administrative Procedure and Process Code (APPC), issues concerning the allocation of court costs are considered in accordance with the rules of the Civil Procedure Code (CPC).

Pursuant to Part 1 of Article 117 of the CPC, the state duty from which the claimant was exempt, as well as costs associated with the proceedings, shall be recovered from the defendant who is not exempt from court costs, in favor of the state, in full or proportionately to the satisfied part of the claim.

Where the claim is satisfied, the state duty shall be recovered in favor of the local budget from the enforcement officer in proportion to the satisfied part of the claim.

The state duty is calculated in accordance with the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (0.5 monthly calculation index (MCI)).

Application of Procedural Compulsion Measures

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

Pursuant to Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including where evidence is submitted or instructions are performed after the deadline established by the court without valid reasons, if this has resulted in a delay in the consideration of the administrative case. The penalty is imposed for each such action (inaction) in the amount of ten monthly calculation indices.

For failure to comply with a court requirement or request, failure of a person participating in an administrative case to appear in court, failure to notify the court in a timely manner, failure to submit a response within the prescribed period, disobedience to the instructions of the presiding judge during a court hearing, violation of the rules established by the court, as well as other actions (inaction) clearly demonstrating disrespect for the court and/or judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices.

For failure to comply with a court decision or a court ruling approving an agreement between the parties on settlement, mediation, or resolution of the dispute through a participatory procedure, the court shall impose a monetary penalty on the defendant in the amount of fifty monthly calculation indices, specifying in the same judicial act a period not exceeding one month within which the decision or ruling must be complied with.

During the period under review, the courts developed a practice of applying procedural compulsion measures in the form of monetary penalties. In disputes concerning challenges to the actions (inaction) of enforcement officers, monetary penalties were most frequently imposed on defendants for the following reasons:

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

Abbreviations Used

• APPC – Administrative Procedure and Process Code of the Republic of Kazakhstan;
• CPC – Civil Procedure Code of the Republic of Kazakhstan;
• CC – Civil Code of the Republic of Kazakhstan;
• Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Enforcement Officers” – Law on Enforcement Proceedings;
• NPRSC – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;
• Rules for the Sale of Seized Property, Including Through Trading in the Form of an Electronic Auction – Rules;
• AIAS – Automated Information and Analytical System of the Judicial Bodies of the Republic of Kazakhstan “Törelik”;
• ACSC SC – Administrative Cases Judicial Collegium of the Supreme Court of the Republic of Kazakhstan;
• ACSC or the Collegium – Administrative Cases Judicial Collegium;
• SICAС – Specialized Interdistrict Administrative Court;
• JD – Department(s) of Justice;
• GEO – State Enforcement Officer(s);
• PEO – Private Enforcement Officer(s);
• EP – Enforcement Proceedings.
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The Main Regulatory Legal Acts Governing Enforcement Proceedings Are:

• Constitution of the Republic of Kazakhstan;
• Administrative Procedure and Process Code (APPC);
• Civil Code (CC);
• Civil Procedure Code (CPC);
• Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Enforcement Officers”;
• 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 the Republic of Kazakhstan dated 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 the Republic of Kazakhstan dated December 19, 2003 No. 12 “On Liability for Failure to Comply with Judicial Acts”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2 “On Taking Interim Measures in Civil Cases”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2024 No. 5 “On Court Decisions in Administrative Cases”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2019 No. 6 “On the Application by Courts of Legislation in Considering 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 Amounts of Remuneration for the Activities of Private Enforcement Officers” (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 the Maintenance of 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 Amounts of Remuneration for the Activities of Private Enforcement Officers”;
• Order of the Minister of Justice of the Republic of Kazakhstan dated March 28, 2019 No. 148 “On Approval of Standard Forms of Rulings of Private Enforcement Officers.”

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