On challenging administrative acts and actions
Dated 7.11.2023, No. 6001-23-00-6ap/1207 (2)
Plaintiff: LLP "DA-K" (Hereinafter-LLP, partnership)
Respondents: Russian State Institution "Department of Ecology of the Committee for Environmental Regulation and Control of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan" (hereinafter - the Department of Ecology, Department),
RSU "State Revenue Department of the State Revenue Department" (hereinafter referred to as the Revenue Department)
The subject of the dispute: on challenging administrative acts and actions
Review of the cassation complaint submitted by the defendants
THE ESSENCE OF THE MATTER:
On April 26, 2021, the prosecutor of the Moscow region filed a lawsuit with the Department of Ecology and instructed to verify compliance with environmental legislation in the partnership's activities from 2018 to 2021.
The Department of Ecology sent a request from the Prosecutor's Office to the Committee for Environmental Regulation and Control of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the Committee) with a request to decide on the appointment of an audit of DA-K LLP.
On May 20, 2021, the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan issued Order No. 155-r on the appointment of an unscheduled inspection of DA-K LLP.
On May 24, 2021, the Act of the Department of Ecology No. 20 on the appointment of an inspection was adopted. The act specifies the requirement of the Prosecutor's Office of the Kyzylorda region dated April 26, 2021 and subparagraph 5) of paragraph 3 of Article 144 of the Entrepreneurial Code of the Republic of Kazakhstan as the legal basis for the audit.
On June 4, 2021, based on the results of the audit, Act No. 20/28 was drawn up and, based on this act, order No. 20/28 on the elimination of the violation was accepted and handed over to the plaintiff for execution.
On June 4, 2021, based on the results of the audit, protocols on administrative offenses were drawn up against DA-K LLP.
On June 17, 2021, the Department of Ecology, based on the results of an unscheduled inspection, sent information on the actual volume of waste disposed on the territory of the partnership's landfill to the State State Revenue Department for the Kyzylorda Region of the State Revenue Committee of the Ministry of Agriculture of the Republic of Kazakhstan (hereinafter referred to as the Revenue Department).
Based on this information, on July 9, 2021, the Revenue Department formed and sent notices to the plaintiff on the accrued amount of payment for emissions into the environment.
On July 15, 2021, the Department of Ecology withdrew its information from the Revenue Department due to the need for additions.
In turn, the revenue department returned from the partnership all notifications sent on July 9, 2021.
On August 4, 2021, the Department of Ecology sent information on the actual volume of waste to the Revenue Department for the second time.
Based on this information, the Revenue Department has generated notifications on the accrued amount of fees for emissions into the environment and on the payment of tax arrears.
In the lawsuit filed by the plaintiff to the court, to recognize as illegal and cancel the act of the Department of Ecology on the appointment of an inspection No. 20 dated May 24, 2021, the definition on the elimination of violations No. 20/28 dated June 4, 2021, to recognize as illegal the actions to provide information on the results of this inspection dated August 4, 2021 and to take note of the adopted revenue management dated August 12, 2021 №26000000017, №26000000018, №26000000019, №26000000020, №26000000021, №26000000022,
№26000000023, №26000000024, №26000000025, №26000000026, №26000000027,
No.26000000028, No. 26000000029 dated August 17, 2021 No. 26000000030
on the payment of tax arrears dated February 3, 2022
№14000007014.
Judicial acts:
Stage 1: the plaintiff's claim for recognition of the act as illegal and annulment based on the results of the audit dated June 4, 2021, the verification act was returned due to the absence of legal consequences.
Appeal: other claims have been satisfied. The court's decision is upheld.
Cassation: judicial acts are upheld.
Conclusion:
Article 7 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office" (effective until November 17, 2022) (hereinafter referred to as the Law) provides for the procedure for conducting inspections.
In turn, the request of the prosecutor of the Kyzylorda region dated April 26, 2021 states that it was issued in accordance with paragraph 1 of Article 7 of the Law.
The form and limits of prosecutorial supervision, including the exceptional circumstances that served as the basis for the appointment of an audit in respect of private business entities, are specified in article 6 of the said law.
Paragraph 3 of Article 6 of the Law states that a law enforcement check is appointed and conducted by the prosecutor on the basis of instructions from the President of the Republic of Kazakhstan or the Prosecutor General of the Republic of Kazakhstan.
That is, the verification of the legality of private business entities is carried out by the Prosecutor's office on behalf of the President of the Republic of Kazakhstan, the Prosecutor General or on the basis of their consent.
There was no instruction from the President of the Republic of Kazakhstan or the Prosecutor General of the Republic of Kazakhstan regarding the audit of the partnership.
Therefore, the prosecutor of the Kyzylorda region had no legal grounds to demand an audit of the Department of Ecology, that is, the conclusions of the local courts in this part are correct.
Part 3 of Article 129 of the LPC establishes that the defendant can only refer to the grounds specified in the administrative act.
The act on the appointment of an inspection specifies the requirement of the Prosecutor's Office of the Kyzylorda region dated April 26, 2021 and subparagraph 4) of paragraph 5 of Article 144 of the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the PC) as the basis for the inspection.
In accordance with subparagraph 4) Paragraph 5 of Article 144 of the Labor Code is based on the instructions of the prosecutor's office on the actual facts of harm to life, human health, the environment and the legitimate interests of individuals and legal entities, the state, or the threat of harm.
However, the conclusions of the Department of Ecology on the absence of grounds for an unscheduled inspection of the partnership provided for in subparagraph 4) are substantiated. paragraph 5 of Article 144 of the Labor Code, due to the fact that the court found that the disputed inspection was appointed not at the request of individuals and legal entities, but at the request of the regional prosecutor.
It was established that for the periods 2018-2019, when local courts conducted a controversial audit, the partnership had previously conducted inspections, including unscheduled, comprehensive ones.
In accordance with subparagraph 6) of Article 151 of the CC (effective in 2021 edition) of paragraph 3 of Article 144 of the CC 3), 3-1), 4), 8), 9), 10) monitoring on the same issue during the same period, except for the cases provided for in paragraphs 13) and conducting preventive control and supervision with a visit to the subject (object) of supervision.
In accordance with subparagraph 1) In accordance with paragraph 1 of Article 155 of the Labor Code, subjects of control and supervision have the right not to allow officials of control and supervision bodies to the facility in cases of non-compliance by the control and supervision body with the frequency and appointment of inspections of the subject (facility) where preventive control and (or) verification on the same issue was carried out during the same period..
The established norms of the law prohibit double-checking.
In addition, the courts found that the actual volume of emissions into the environment was formed on the basis of information provided by the partnership. In turn, he pointed out that the Department had not carried out any work to identify this information during the audit, and the information reflected in the information submitted to the tax authority had been revealed by the results of the audit.
A party's disagreement with the court's conclusion cannot serve as a basis for reviewing judicial acts that are lawful and appropriate to the circumstances of the case.
Therefore, the conclusions of the local courts on the satisfaction of the claim are correct.
The Judicial Board considers that there are no valid grounds for revoking or changing the force of the contested judicial acts.
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