On challenging administrative acts and actions of the Department of Ecology
7.11.2023 No. 6001-23-00-6ap/1207 (2)
Plaintiff: DA-K LLP (hereinafter referred to as LLP, partnership)
Defendants: RSU" 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 referred to as the Department of Ecology, Department),
RSU "State Revenue Department of the state revenue department" (hereinafter referred to as the Revenue Department)
Subject of the dispute: on challenging administrative acts and actions
Review of the Cassation complaint filed by the defendants
SUBJECT OF THE CASE:
On April 26, 2021, the prosecutor of the city region sent a claim to the Department of Ecology and instructed to conduct an audit of compliance with environmental legislation in the company's activities from 2018 to 2021.
The Department of Ecology sent the request of 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) and asked to make a decision 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-O on the appointment of an unscheduled inspection of DA-K LLP.
On May 24, 2021, the Department of Ecology adopted Act No. 20 on the appointment of inspections. The Act specifies the requirement of the prosecutor's Office of the Kyzylorda region as of April 26, 2021 and subparagraph 5) of Paragraph 3 of Article 144 of the entrepreneurial code of the Republic of Kazakhstan as a legal basis for conducting an audit.
On June 4, 2021, based on the results of the Audit, Act No. 20/28 was drawn up and on the basis of this Act, ruling No. 20/28 on the elimination of the violation was adopted and submitted to the plaintiff for execution.
On June 4, 2021, with the results of the audit, protocols on administrative offenses were formed in relation to DA-K LLP.
On June 17, 2021, the Department of ecology, as a result of an unscheduled inspection, sent information on the actual amount of waste placed on the territory of the partnership's landfill to the RSU "Department of state revenues for the Kyzylorda region of the state Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the revenue department).
Based on this information, the revenue department formed and sent to the plaintiff for execution on July 9, 2021 notifications about the calculated amount of payments for emissions into the environment.
On July 15, 2021, the Department of Ecology recalled the information sent by it from the Department of revenue due to the need to make additions.
In turn, the revenue department returned all messages from the Partnership sent on July 9, 2021.
On August 4, 2021, the Department of Ecology sent information on the actual waste volume to the revenue department for the second time.
On the basis of this information, the revenue department has formed notifications about the calculated amount of payments for emissions into the environment and about the payment of tax arrears.
In the lawsuit filed by the plaintiff to the court, the act of the Department of Ecology on the appointment of verification No. 20 of May 24, 2021, the ruling on the elimination of violations No. 20/28 of June 4, 2021, the illegal recognition and cancellation of attempts to provide information as a result of this audit as of August 4, 2021, and the Act No. 260000000017 of August 12, 2021, adopted by the Revenue Department,
№26000000018, №26000000019, №26000000020, №26000000021, №26000000022,
№26000000023, №26000000024, №26000000025, №26000000026, №26000000027,
№260000000028, №26000000029, dated August 17, 2021 №26000000030
notifications, on the payment of tax arrears as of February 3, 2022
No. 14000007014 disputed messages.
Judicial acts:
Stage 1: the claim of the plaintiff on the recognition of the act as illegal and cancellation based on the results of the audit dated June 4, 2021, was returned due to the fact that the Audit Act does not cause legal consequences.
Appeal: other claims of the claim are satisfied. The court decision remains in force.
Cassation: judicial acts left in force.
Conclusion:
Article 7 of the law of the Republic of Kazakhstan "on the prosecutor's office" (in force until November 17, 2022) (hereinafter referred to as the law) provides for the procedure for conducting inspections.
In turn, in the requirement of the prosecutor of the Kyzylorda region dated April 26, 2021, it is indicated that it was issued in accordance with paragraph 1 of Article 7 of the law.
The form and limits of prosecutorial supervision, including in relation to private business entities, are set out in Article 6 of this law.
Paragraph 3 of Article 6 of the law stipulates that the prosecutor appoints and conducts an audit of compliance with the rule of law on the basis of instructions of the president of the Republic of Kazakhstan or the prosecutor general of the Republic of Kazakhstan.
That is, the prosecutor's office checks compliance with the rule of law in relation to private business entities on behalf of the president of the Republic of Kazakhstan, the prosecutor general or on the basis of their consent.
There were no instructions from the president of the Republic of Kazakhstan or the prosecutor general of the Republic of Kazakhstan to conduct an audit of the partnership.
Therefore, the prosecutor of Kyzylorda region did not have a legal basis for requesting an audit of the Department of ecology, that is, the conclusions of local courts in this section are correct.
Part 3 of Article 129 of the code establishes that the defendant can refer only to the grounds specified in the administrative act.
The act on the appointment of the audit specifies the requirement of the prosecutor's Office of the Kyzylorda region as of 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 CC) as the basis for conducting the audit.
In accordance with subparagraph 4) of Paragraph 5 of Article 144 of the criminal code, the basis for unscheduled inspections of subjects (objects) of control and supervision are instructions of the prosecutor's office on specific facts of harm to life, health, the environment and the legitimate interests of individuals and legal entities, the state, or on the threat of harm.
However, the conclusions of the Department of Ecology on the absence of grounds for conducting unscheduled inspections of the partnership, provided for by subparagraph 4) of Paragraph 5 of Article 144 of the criminal code, are justified in connection with the fact that the audit in dispute with the courts was appointed at the request of the regional prosecutor, and not by applications of individuals and legal entities.
For the period 2018-2019, when a controversial audit was conducted by local courts, it was established that earlier inspections of the Partnership were carried out, including unscheduled, comprehensive inspections.
In accordance with subparagraph 6) of Article 151 of the CC (version in force in 2021), paragraph 3 of Article 144 of the CC 3), 3-1), 4), 8), 9), 10) during the same period, it is restricted to carry out preventive control and supervision by visiting the subject (object) of control and supervision on the same issue, with the exception of cases provided for in subitems 13).
In accordance with subparagraph 1) of Paragraph 1 of Article 155 of the CC, subjects of control and supervision have the right not to send officials of control and supervision bodies to the object in cases where the control and supervision body does not comply with the frequency of conducting and assigning an inspection to the subject (object) of preventive control and (or) inspection on the same issue during the same period.
The established norms of the law prohibit re-examination.
In addition, it is established that the actual volume of emissions into the environment by the courts is formed on the basis of the company's own data. He, in turn, noted that the Department did not work to identify this information during the audit, and the information provided to the tax authority was determined by the results of the audit.
Disagreement of a party with a judicial statement cannot be the basis for revising judicial acts that are legal and correspond to the circumstances of the case.
Therefore, the conclusions of local courts on the satisfaction of the claim are correct.
The judicial board considers that there are no valid grounds for canceling or changing the force of the contested judicial acts.
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