On recognition as illegal and cancellation of the order Department of Ecology
No. 6001-24-00-6ap/1881 dated February 06, 2025
Plaintiff: U 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 the recognition as illegal and cancellation of the order of July 19, 2023
Review of the plaintiff's cassation complaint PLOT:
On January 2, 2023, the specialized environmental Prosecutor's office conducted an analysis of the effectiveness of measures taken by local executive and authorized state bodies aimed at preventing contamination of groundwater in the K. sandy massif and expanding the territory of specially protected natural areas.
Based on the results of such an analysis, a letter was sent to the Prosecutor General's Office of the Republic of Kazakhstan on approval of inspections in the activities of a number of enterprises for compliance with environmental legislation.
On June 1, 2023, the Head of the Public Interest Protection Service of the Prosecutor General's Office of the Republic of Kazakhstan instructed the Prosecutor of the region, the Minister of Ecology and Natural Resources, to send a request to the Department to conduct unscheduled inspections of the activities of several legal entities, including Partnerships.
On June 2, 2023, the regional prosecutor's office sent an instruction to the specialized environmental prosecutor's office of the region to send a request to the Department to conduct an unscheduled inspection of the activities of the above-mentioned organizations for compliance with environmental legislation.
In pursuance of this instruction, on June 6, 2023, the specialized environmental prosecutor's office submitted to the Department a submission on conducting an audit of the Partnership's activities for compliance with environmental legislation (ensuring water sampling from observation wells and laboratory testing for petroleum products).
On June 21, 2023, the Department, on the basis of instructions from the prosecutor's office, ordered an inspection of the Partnership regarding the threat of harm to human life and health and the environment.
Based on the results of the audit, an order was sent to the Partnership dated July 19, 2023 on the elimination of violations.
Judicial acts:
1st instance: the claim is satisfied. The order on elimination of violations was declared illegal and cancelled. dated July 19, 2023 on
elimination of violations.
Appeal: the decision of the court of first instance was overturned with a new decision rejecting the claim.
Cassation: the decision of the appeal in this case is overturned.
The decision of the court of first instance is upheld.
Conclusions: according to subparagraph 4) of paragraph 5 of Article 144 of the Criminal Code, the basis for an unscheduled inspection of subjects (objects) of control and supervision is the instruction of the prosecutor's office on specific facts of causing or threatening harm to life, human health, the environment and the legitimate interests of individuals and legal entities, the state.
In accordance with subparagraph 5) of paragraph 2 of Article 18 of the Constitutional Law of the Republic of Kazakhstan "On the Prosecutor's Office", the verification of the legality of private business entities is carried out on behalf of the President of the Republic of Kazakhstan, the Prosecutor General or in consultation with them.
In this case, there were no instructions from the President of the Republic of Kazakhstan or the Prosecutor General of the Republic of Kazakhstan.
The case materials established that the instruction to the prosecutor, the Minister of Ecology and Natural Resources to send a corresponding request to the Department of Ecology to conduct unscheduled inspections in the activities of the joint-stock company (hereinafter - JSC) "K", LLP "F", LLP
"K" and "U" LLP were given by the Head of the Public Interest Protection Service of the Prosecutor General's Office.
The submissions of the regional Prosecutor's Office and the Environmental Prosecutor's Office are based on a certificate from the working commission on the inspection of oil and gas wells within the K. groundwater field, which is not an administrative act and does not entail legal consequences.
Neither the defendant, nor the regional prosecutor's office, nor the environmental prosecutor's office presented specific facts of causing or threatening harm to life, human health, the environment, and the legitimate interests of individuals, legal entities, and the state.
Taking into account the above-mentioned legal norms, the court of first instance legitimately pointed out that the actions of the regional prosecutor's office and the environmental prosecutor's Office to make and send representations to the Department demanding an inspection are illegal.
Absence of a basis for conducting an inspection provided for in subparagraph 4) paragraph 5 of Article 144 of the Criminal Code did not give the Department the right to inspect the plaintiff's activities.
This circumstance means that the Department committed a gross violation of the requirements for the organization and conduct of inspections established by paragraph 2 of Article 156 of the Criminal Code, in connection with the appointment of inspections in the absence of a legitimate reason.
The terms of inspections have been extended without timely notification of the inspection subjects.
It was established that the additional act on the extension of the audit No. 28 dated June 21, 2023 lacks information (a stamp indicating the number and date) on registration with the authorized body and a link to the main act on the appointment of the audit.
Whereas, in accordance with the requirements of paragraph 2 of Article 148 of the PC, in case of extension of the terms of preventive control with a visit to the subject (object) of control and supervision, the control body draws up an additional act with registration with the authorized body of legal statistics. The act indicates the number and date of registration of the previous act, the reason for the extension.
In this case, only the requirement to indicate the reason for the extension is met: "obtaining the results of laboratory tests of samples in the field of environmental protection."
Thus, the act on the extension of the audit dated June 21, 2023 was adopted with procedural violations.
During the sampling of water from monitoring wells, the regulatory document ST RK GOST R 51592-2003 "WATER. General requirements for sampling".
During the proceedings, it was established that the water sampling act did not specify the characteristics of the dishes, thermometer and pump. The report does not contain data on the depth of the well, the method of transportation and the parameters of the cooler bag.
Violations in the sampling of water did not allow to determine the composition and properties of the water, that is, to establish the guilt of the subjects of control in pollution. In violation of article 149 of the PC, only one sample was taken instead of three.
The court proceedings did not confirm the violations specified in the regulations regarding non-compliance with the conditions of the environmental permit.
By a protocol decision of the Ministry of Energy and the Ministry of Ecology dated December 1, 2022, subsurface users had until February 1, 2023 to draw up an action plan for the liquidation of oil and gas wells, coordinating it with the ministries.
In pursuance of the instructions, the subsoil users carried out activities, drew up plans and sent them for approval. After completion, the plans were re-submitted for approval. To date, there is no legal act regulating the requirements and deadlines for the adoption of the action plan.
It follows from the above that there is no fault in the actions of the Partnership.
The defendant has not provided evidence of gross violations of environmental legislation that harm the environment, while the burden of proof is placed on him according to article 129 of the CPC.
Thus, the Department committed a violation of the procedural
character, which is correctly established by the court of first instance.
In the context of the above, the judicial board concluded that the Department's audit was conducted in violation of the requirements of the PC and other laws, therefore, the order is subject to recognition as illegal and cancellation.
Consequently, the court of first instance gave a proper legal assessment to the circumstances of the case and the evidence presented by the plaintiff, and the norms of law were to be applied in the above interpretation.
The inconsistency of the conclusions of the court of appeal with the circumstances of the dispute and the erroneous interpretation of the law are grounds for the cancellation of the contested judicial act.
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