On challenging the act on the appointment of an audit
No.6001-23-00-6ap/1138 dated October 26, 2023
Plaintiff: K LLP (hereinafter referred to as the Partnership)
Respondent: 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 referred to as the Department)
The subject of the dispute: on challenging the act on the appointment of an audit No. 62 dated August 9, 2022, the act on the results of the audit No. 62 dated August 16, 2022, the regulation on the elimination of violations No. 62 dated August 16, 2022, on challenging the actions of the audit
Review of the plaintiff's cassation appeal. PLOT:
On July 12, 2022, O.E. addressed the Department, which presented a video about an unauthorized landfill of waste on a land plot leased by the plaintiff, from which it is visible and established the accumulation of metal barrels and other types of waste, as well as their burning in metal containers, thereby causing damage to the environment.Gorenje wrote on her Facebook page.
Based on the request of O.E. dated July 15, 2022, the Department appointed an inspection of compliance with environmental legislation in waste management by the Partnership, which resulted in an inspection appointment Act No. 62 dated August 9, 2022 (hereinafter referred to as the inspection appointment Act).
By order of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter referred to as the Minister of Ecology) dated July 26, 2022, an unscheduled inspection was scheduled for the Partnership to ensure compliance with the requirements of environmental legislation in waste management and the availability of a state environmental assessment and environmental permit.
The act on the appointment of an audit by the Department was registered with the Office of the Committee on Legal Statistics and Special Accounts of the Prosecutor General's Office of the Republic of Kazakhstan on August 10, 2022.
The Department conducted an inspection of the facility of the Partnership, located at 61 Prospect K., E. city (hereinafter referred to as the facility), according to the results of which it was established that:
a) in violation of the requirements of the Environmental Code of the Republic of Kazakhstan (hereinafter - EC) the plaintiff has no:
- a document certifying the right to carry out a negative impact on the environment and defining the environmental condition for carrying out activities;
- the conclusion of the state environmental assessment on the object;
b) the plaintiff's storage of hazardous waste was carried out outside specially designated places, that is, not intended for their accumulation.
In relation to the Partnership, an act on the results of the audit No. 62 dated August 16, 2022, as well as an order on the elimination of violations No. 62 dated
On August 16, 2022, three protocols on administrative offenses were drawn up under part four of Article 328, part one of Article 332, and part two of Article 344 of the Code of the Republic of Kazakhstan "On Administrative Offenses."
Disagreeing with the actions of the Department for conducting the inspection and the act and order issued based on its results, the plaintiff appealed to the Committee for Environmental Regulation and Control of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan," which dismissed the complaint.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts have been changed, acts regarding the denial of a claim for
The contesting of the act on the results of the audit No. 62 dated August 16, 2022 was canceled, the claim in the specified part was returned to K LLP.
The rest of the judicial acts of the local courts remained in force.
Conclusions: the concept and features of an administrative act and judicial jurisdiction of disputes are determined by the provisions of the APPC.
The second part of Article 102 of the APPC states that the courts, in administrative proceedings, have jurisdiction over disputes arising from public law relations provided for by the APPC.
The provisions of the first part of Article 4 of the APPC determine that:
1) an administrative act is a decision taken by an administrative body, an official in public relations, implementing the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.;
2) an administrative claim is a claim filed in court for the purpose of protecting and restoring violated or disputed rights, freedoms or legitimate interests arising from public law relations.
An administrative act is the main external form of administrative activity of administrative bodies and officials. It is adopted by an administrative body in public law relations, has an authoritative character and is a unilateral decision of an administrative body endowed with authority, which is mandatory and secured by state coercion and is aimed primarily at the realization of subjective public rights and obligations, addressed to a specific person or an individually defined circle of people.
The subject of a claim may be an act that denies implementation, restricts, terminates the right of a participant in an administrative procedure or imposes certain duties on him, as well as otherwise worsens his situation.
However, the act on the results of the audit No. 62 of August 16, 2022, challenged by the plaintiff (hereinafter referred to as the act on the results of the audit) is not an administrative act adopted in public law relations and does not impose any obligations on the plaintiff. In the context of the defendant's appealed acts, it is interim, that is, preceding the issuance of an order to eliminate violations and the actual administrative evidence in this case.
Accordingly, the courts of the first and appellate instances violated the norms of procedural law in this part of the claim, and therefore the Partnership's claim for revocation of the inspection report should be returned to the plaintiff due to the fact that it is not subject to consideration in administrative proceedings.
Based on the above, the judicial board concludes that the local courts have essentially considered the requirement to appeal the act on the results of the audit, which is not subject to resolution in administrative proceedings, which entails the cancellation of judicial acts in this part and the return of the claim to its submitter on the basis of subparagraph 11) of the second part of Article 138 of the CPC.
Subparagraph 3) Paragraph 3 of Article 144 of the PC defines that the grounds for an unscheduled inspection of subjects of control and supervision are appeals from individuals and legal entities on specific facts of harm to the environment.
It follows from this rule that state control in the form of verification can be carried out upon citizens' requests for specific facts that cause harm to the environment.
A specific fact should be understood as an event, the reliability of which is considered established and confirmed by specific circumstances.
Such circumstances and evidence in this case have been established.
Thus, the object was received by an individual entrepreneur (hereinafter referred to as IP) from P.S. for temporary paid possession and use until December 31, 2022 for the purpose of using it as storage facilities for storing property, on the basis of a lease agreement for non-residential premises dated February 18, 2021.
Based on the lease agreement dated December 31, 2021, the facility was leased from IP D.O. by the Partnership for the placement of property until December 31, 2022.
The act on the results of the inspection established the placement of hazardous waste - oiled rags, sawdust contaminated with petroleum products, used oil containers, metal fuel containers, used oil filters. These circumstances are confirmed by photos and videos taken during the inspection, as well as explanations from the representative of the landlord, P.M.
In accordance with the order of the Acting Minister of Ecology dated August 6, 2021 "On approval of the Waste Classifier", oiled rags, sawdust contaminated with petroleum products, used oil containers, metal fuel containers, used oil filters, tires are classified as hazardous waste.
Article 106 of the EC establishes that an environmental permit is a document certifying the right of individual entrepreneurs and legal entities to have a negative impact on the environment and defining the environmental conditions for carrying out activities.
Paragraph 3 of Article 106 of the EC stipulates that an environmental permit is issued for each individual object of categories I and II.
According to the decision on determining the category of an object having a negative impact on the environment, the Department of Ecology dated August 25, 2021, assigned category II to the Partnership.
Meanwhile, according to the information of the State Institution "Management of Subsoil Use, Environment and Water Resources" dated May 26, 2022, the plaintiff does not have an environmental impact assessment and a state environmental assessment report on waste collection and management activities at the specified facility.
Consequently, the Partnership did not have the appropriate environmental permit to carry out negative impacts on
the environment at the leased facility.
Thus, by resolving the dispute and rejecting the claim, the local courts, guided by the norms of Article 106 of the EC, came to the correct conclusion that the Partnership carried out activities on the land plot of the leased facility without an environmental permit and a positive conclusion of the state environmental assessment.
Based on the above, the judicial board concludes that judicial acts regarding the rejection of a claim to challenge the act on the appointment of an audit No. 62 dated August 9, 2022, prescriptions for the elimination of violations
No. 62 dated August 16, 2022, on challenging the actions of conducting an audit, are subject to remain in force.
No. 62 dated August 16, 2022, on challenging the actions of conducting an audit, are subject to remain in force.
The rest of the arguments of the complaint were the subject of research by the local courts and do not refute their conclusions, but only express disagreement with them, a different legal assessment of the established circumstances and amounts to a reassessment of the evidence and conclusions of the courts contained in the contested judicial acts. Whereas the reassessment of evidence is not within the competence of the cassation instance.
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