On challenging the order to eliminate violations
No. 6001-23-00-6ap/1671 dated 12/12/2023
Plaintiff: "E" 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 and Natural Resources of the Republic of Kazakhstan" (hereinafter referred to as the Department)
The subject of the dispute: on challenging the regulation on the elimination of violations
No. 100 dated November 11, 2022
Review of the defendant's cassation complaint PLOT:
On March 24, 2017, the Partnership and the Republic of Kazakhstan, represented by the State
The Department of Entrepreneurship and Industry has signed a contract for the extraction of construction sand at the S-1 deposit (hereinafter referred to as the Contract).
The contract was registered by the competent authority for No. 1402, and its validity period is 25 years. The work program (Appendix No. 1 to the Contract) provides for investments in the total amount of 1,338,915,280 tenge, including for the socio-economic development of the region in the amount of 30,000,000 tenge.
The plaintiff has a permit for emissions into the environment for objects of II, III, IV categories dated May 23, 2017 with a validity period until December 31, 2025. At the time of the inspection, the validity period of the said permit has not expired, the Partnership has not been deprived of it in court.
Judicial acts:
1st instance: the claim is satisfied. The order on the elimination of violations No. 100 dated November 11, 2022 was declared illegal and canceled.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: it follows from the act on the results of the inspection that the Partnership carried out work on sand extraction at the S-1 deposit in the absence of
conclusions of the state environmental expertise.
The local courts, satisfying the plaintiff's claims, indicated that
1) by the decision of the Council of Economic and Social Council of December 2, 2022, the claim of the Department of Entrepreneurship and Tourism for invalidation of the Contract was denied. In the framework of this case, the court took interim measures in the form of suspension of the Contract and a ban on performing any subsurface use operations related to the extraction of minerals and their sale (IESEC definition of October 26, 2022);
2) the Partnership's permit for emissions into the environment is considered valid until its expiration date, that is, until December 31, 2025;
3) The contract remains legally valid and continues to be valid until the expiration or termination of the term.;
4) the loading and removal of stored sand does not relate to mining, and therefore these types of work cannot be attributed to subsurface use operations.
Subparagraph 5) of the first part of Article 80 of the CPC stipulates that an administrative act must contain the signature of an official.
Subparagraph 10) of paragraph 1 of Article 152 of the PC stipulates that the act on the results of the audit must contain the signature of the official(s) who conducted the audit.
Similar requirements by virtue of subparagraph 9) of paragraph 2 of Article 152-1 of the PC are imposed on the regulation (as amended at the time of its issuance).
It follows from the above that the administrative act must be signed by all officials authorized to conduct an appropriate audit.
Meanwhile, it was established that the act on the results of the audit and the order were signed by only one inspector H.N., while the signatures of other inspection officials (signatories) indicated in the act on the appointment of an audit dated November 7, 2022, registered with the authorized body for legal statistics and special accounts, are missing.
In accordance with article 12 of the CPC, all doubts, contradictions and ambiguities must be interpreted in favor of the plaintiff. And in accordance with the fourth part of Article 6 of the CPC, violation of the principles of administrative procedures, depending on the nature and materiality, entails the recognition of burdensome administrative acts, actions (inaction) as illegal and their cancellation.
The first part of Article 84 of the CPC regulates that violation of the legislation of the Republic of Kazakhstan on administrative procedures is the basis for recognizing an administrative act as illegal if such violation led or could lead to the adoption of an incorrect administrative act.
In the context of the outlined legal norms and in the absence of signatures of officials specified in administrative acts, the judicial board, without entering into a discussion of the merits of the contested order, agrees with the conclusions of the courts on the satisfaction of the claim.
Thus, in the present case, the courts have examined in detail the circumstances of the case, the evidence and arguments presented by the parties.,
which have been given a proper assessment with reference to the relevant provisions of the law.
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