On recognition of illegal actions of the Akimat of the city
No. 6001-23-00-6ap/2230 dated 12/19/2023
Plaintiffs: B.O., N.N.
Defendants: Akimat of the city, office of the akim of the district, KSU "Department of Finance", KSU "Department of Entrepreneurship and Investments"
The subject of the dispute: on recognizing as illegal the actions of the Akimat of the city, expressed in redirecting complaints from lawyers and notaries to the responses of the structural divisions of the Akimat of the city to other structural divisions of the Akimat of the city that are not authorized to resolve these issues, on forcing the Akimat of the city to adopt a favorable administrative act on appeals and complaints from lawyers of the city bar Association and notaries of the city to compensate material damage to lawyers and notaries by issuing a resolution on compensation for material damage to lawyers and notaries, to those who suffered during the January events, to compel the KSU "Finance Department" to issue a positive opinion on the allocation of funds within the limits of the established material damage to compensate for material damage to lawyers and notaries who suffered during the January events, to compel the office of the akim of the district to adopt a favorable administrative act on appeals and complaints from lawyers of the Almaty City Bar Association and notaries compensation of material damage to lawyers and notaries injured during the January events
Review of the plaintiffs' cassation complaint PLOT:
Plaintiffs B.O. and N.N. are engaged in advocacy and notarial activities on the basis of a state license.
During the January events, a fire broke out in the building where the plaintiffs' offices were located during the riots. The fact of the fire was registered in the State Institution "Department of Emergency Situations".
During the riots, according to the plaintiffs, personal items (watches, bags, pastel linens, and other personal property of the plaintiffs), cash, and other property of the plaintiffs in the form of office furniture, a list of which was compiled by the plaintiffs indicating its value, were stolen from the offices.
In January 2022, the plaintiffs filed a criminal complaint with the District Police Department and the plaintiffs were recognized as victims of criminal cases by the decisions of the investigators of the SB UP of the district dated January 15, 2022.
Further, in order to receive payments for the damage suffered by the plaintiffs as a result of the January events, the plaintiffs repeatedly applied to the akimat of the city. However, the specified State body redirected the plaintiffs' statements to other bodies, which in turn redirected the statements further.
According to the plaintiffs' appeals dated December 19 and 20, 2022, addressed to the mayor of the city, the plaintiffs requested compensation for the damage caused to them in accordance with the requirements of the Rules for the Provision of Residential Premises, compensation for material damage, and provision of necessary assistance to individuals affected by the circumstances that served as the basis for the imposition of a state of emergency,"approved by a decree of the Government of the Republic Kazakhstan No. 860 from
On September 18, 2008, and the Rules for Compensation of Property Damage Caused to Individuals and Legal Entities as a result of an Act of Terrorism, approved by Resolution of the Government of the Republic of Kazakhstan No. 877 dated August 28, 2013 (hereinafter referred to as the Rules), by virtue of which property damage caused to individuals as a result of the January events, to which the plaintiffs refer themselves, is subject to compensation.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are cancelled. The case has been sent for a new hearing to a different court of appeal.
Conclusions: it has been reliably established that to date, no official response has been received from the Akimat to the plaintiffs' written requests for compensation for the damage they caused. All the plaintiffs' statements were forwarded to other authorities.
Thus, the office of the akim of the district indicated the lack of an appropriate budget, the issue of allocating budget funds is resolved by the akimat of the city. After the appeal of persons engaged in advocacy and notarial activities, the office of the akim of the district sent a letter to the Finance Department about the possibility of allocating budgetary funds and compensation for property damage.
On December 30, 2022, the Finance Department issued a conclusion that it was impossible to allocate money within the limits of the funds provided in the reserves for urgent expenses of local executive bodies. The provided calculations indicate personal property, such as watches, bags and cash, and others, the reimbursement of which is not regulated by either Rules No. 877 or Rules No. 860.
Disagreeing with the above-mentioned actions of the defendants, expressed in redirecting the petitions of the plaintiffs by the akimat of the city to other structural
The divisions of the Akimat, which are not authorized to resolve the issues raised by the plaintiffs in the appeals, the plaintiffs filed this lawsuit with the court.
The Court of First instance, refusing to satisfy the plaintiffs' claims in full, motivated the decision by the fact that, by virtue of Appendix 2 to Rules No. 860, the personal property indicated by the plaintiffs in the list is not subject to compensation. At the same time, the plaintiffs are in violation of the Rules
No. 877 was not accompanied by documents confirming the acquisition of damaged and lost property. In addition, the issue of budget allocation falls within the competence of the akimat of the city, since the defendant, represented by the office of the akim of the district, does not have its own budget. The court of first instance also concluded that the plaintiffs, as victims of the criminal case, had not lost their right to compensation for property damage in accordance with the norms of the criminal procedure legislation.
The appellate instance agreed with the above-mentioned conclusions of the court, which upheld the court's decision.
The board considers these conclusions of the local courts to be incorrect, based on a misinterpretation of the substantive and procedural law to be applied, incomplete clarification of the circumstances of the case relevant to the proper resolution of the dispute, due to the following.
In accordance with the second part of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.
However, the specified task was not completed by the local courts.
As mentioned above, a fire broke out in the building where the plaintiffs' offices were located during the riots.
During the riots, according to the plaintiffs, personal belongings of the plaintiffs, including cash, were stolen from the offices, and other plaintiffs' property in the form of office furniture was damaged and unusable, a list of which was compiled by the plaintiffs partially indicating their value in criminal cases where the plaintiffs were recognized as victims.
According to the arguments of the plaintiffs' representative, documents partially confirming the amount of damage caused are in the materials of the criminal case.
It has been reliably established that the plaintiffs have repeatedly appealed to the Akimat of the city regarding compensation for damages, however, the plaintiffs have not received an official response to the refusal or satisfaction of the plaintiffs' appeals from the specified state agency so far. In addition, the akimat did not conduct an administrative procedure to hear the plaintiffs on their appeals. All petitions of the plaintiffs were redirected to other state bodies, which, for various reasons, indicated the impossibility of compensation for damages.
Thus, it follows from the above-mentioned circumstances that the akimat of the city did not issue an appropriate administrative order against the plaintiffs.
a (favorable or unfavorable) act, and also did not carry out the administrative procedure provided for in Chapter 9 of the CPC in relation to the plaintiffs, but only redirected the plaintiffs' appeals to other structural divisions.
Whereas, by virtue of subparagraph 4) of part 1 of Article 4 of the CPC, an administrative act is a decision taken by an administrative body, an official in public relations, exercising the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.
Administrative procedure – the activity of an administrative body or official in reviewing an administrative case, making and executing a decision on it, carried out on the basis of an appeal or on his own initiative, as well as activities carried out in accordance with a simplified administrative procedure (subparagraph 8) of part 1 of Article 4 of the CPC).
In accordance with the first part of Article 5 of the CPC, the objectives of administrative procedures are: the full realization of public rights, freedoms and interests of individuals and legal entities; achieving a balance of private and public interests in public relations.
The APPC, which entered into force on July 1, 2021, is aimed at regulating these relations if there is a public-law dispute between the state and a person.
Chapter 9 of the APPC provides for the initiation of an administrative procedure based on a person's appeal. In this case, the plaintiffs' appeals to the authorized body on the issue of compensation for damages, in accordance with article 66 of the CPC, should have been considered by the administrative body in the following order:
- the participant in the administrative procedure is notified of the time and place of the hearing or other events necessary for the implementation of the administrative procedure.;
-the notification (notification) is sent by registered mail with a notification of its delivery, by telephone or telegram, by text message to a cellular subscriber number or by e-mail, or using other means of communication that ensure the recording of the notification or call.;
-if the participant in the administrative procedure does not actually reside at the specified address, notifications (notices) may be sent to his legal address or place of work.
In addition, by virtue of the first and fourth parts of Article 69 of the CPC, an administrative body or official forms an administrative file on paper and (or) in electronic form, which consists of documents necessary for the implementation of an administrative procedure.
Heads of government agencies are personally responsible for the organization of work with appeals from individuals and legal entities, and the state of office work.
Articles 72-75 of the CPC provide for the obligation of an administrative body to take measures for a comprehensive and objective investigation of factual circumstances relevant for proper consideration.
to provide an opportunity for the participant of the administrative procedure to express his position on the preliminary decision on the administrative case, about which the participant of the administrative procedure is notified in advance, but not later than three working days before the adoption of the administrative act; to produce a record of the hearing; to familiarize the participant of the administrative procedure with the materials of the administrative case.
By virtue of subparagraph 4) of the first part of Article 80 of the CPC, an administrative act adopted in written (paper and/or electronic) form shall specify a description of the issues to be resolved when adopting an administrative act and the justification for the administrative act.
Thus, it was established that the petitioners' appeals were not properly considered by the akimat, as well as the principles of the APPC were not observed and the above tasks of administrative procedures were not fulfilled.
However, the local courts, despite the above-mentioned circumstances, as well as the failure of the administrative body to comply with the administrative procedure, did not establish the subject of the claim, effectively replaced the administrative body represented by the Akimat, and concluded that the plaintiffs were not entitled to compensation for the damage caused, thereby violating the procedure for regulating public relations between the administrative body. (state body) and the person in respect of whom the public functions of this administrative body established by law are implemented, this led to a violation of the competence of the administrative body and the rights of the plaintiffs.
Thus, the board concludes that the local courts have not taken sufficient measures to comprehensively, fully and objectively clarify the circumstances relevant to the case, and the norms of substantive and procedural law have been incorrectly applied.
These violations are significant, which leads to the cancellation of the contested judicial acts with the referral of the case for a new hearing to the court of appeal according to the rules of the court of first instance, in a different composition of the court.
Upon a new hearing, the court should eliminate the above-mentioned shortcomings, carefully examine the evidence and arguments presented by the parties, and resolve the dispute in accordance with the applicable substantive and procedural law.
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