On recognizing the actions of the Environmental Prosecutor's Office as illegal

No. 6001-23-00-6ap/1407 dated 11/21/2023

Plaintiff: Company "N" (hereinafter referred to as the Company)

The defendants are the Specialized Environmental Prosecutor's Office (hereinafter referred to as the Environmental Prosecutor's Office), the Western Interregional Directorate of State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan (hereinafter referred to as the Directorate).

The subject of the dispute: on declaring illegal the actions of the Environmental Prosecutor's Office in making and sending to the Department the requirement No. 2- 0509-22-00430 dated September 21, 2022 on conducting an inspection, declaring illegal and canceling the Management act on the appointment of an inspection No. 37 dated September 22, 2022

Review of the defendant's cassation complaint PLOT:

On August 3, 2022, the Russian State Institution "Department of the Industrial Safety Committee of the Ministry of Emergency Situations of the Republic of Kazakhstan" (hereinafter referred to as the Department) received a notification from the Company about an incident at the Integrated Oil and gas treatment Plant "B" (hereinafter referred to as UKPNiG "B") related to the activation of toxic gas sensors in the area of sludge traps, in connection with This caused the gas pressure from the sludge traps to be released onto the flare system. All plant installations have been shut down and brought to a safe state.

On September 21, 2022, the Department received an instruction from the Environmental Prosecutor's Office to conduct an unscheduled inspection of the Company on the above-mentioned fact of the activation of toxic gas sensors in the area of sludge traps at UKPNiG "B".

On September 22, 2022, the Management appointed an unscheduled audit of the Company in accordance with the act on the appointment of an audit No. 37 (hereinafter referred to as the Act).

The company appealed the Act to the Ministry, having received a refusal to satisfy the complaint.

Judicial acts:

1st instance: the claim is satisfied. It was decided to declare illegal the actions of the prosecutor of the Environmental Prosecutor's Office in making and sending to the Department the requirement No. 2-0509-22-00430 dated September 21, 2022 on conducting an inspection.

To declare illegal and cancel the Management's act on the appointment of an audit

No. 37 dated September 22, 2022.

Appeal: the court's decision is upheld.

Cassation: judicial acts are upheld.

Conclusions: The court of first instance motivated the satisfaction of the claim by the fact that the actions of the prosecutor of the Environmental Prosecutor's Office to make and send to the Department a request for an inspection were illegal.

The appellate judicial board agreed with the conclusions of the court of first instance.

It follows from the case file that the Act specifies as the basis for the inspection: letter from the Environmental Prosecutor's Office No. 2- 0509-22-00430 dated September 21, 2022, with reference to subparagraph 5) of paragraph 3 of Article 144 of the Criminal Code – instructions from the prosecutor's office on specific facts of causing or threatening harm to life, human health, or the environment. and the legitimate interests of individuals, legal entities, and the state.

According to Article 156 of the PC, inspection and preventive control and supervision with a visit to the subject (object) of control and supervision are considered invalid if they are conducted by the control and supervision body in gross violation of the requirements for organizing and conducting inspections and preventive control and supervision with a visit to the subject (object) of control and supervision established by this Code. Gross violations of the requirements of this Code include the absence of grounds for conducting an inspection and preventive control and supervision with a visit to the subject (object) of control and supervision.

In this case, there was no reason to conduct an audit, and therefore the act of appointing an audit is unlawful.

Paragraph 4 of Article 3 of the Law of the Republic of Kazakhstan dated June 30, 2017 "On the Prosecutor's Office", which was in force at the time of sending the order to the Office (hereinafter referred to as the Law), established that the prosecutor's office does not have the right to interfere in the activities of business entities, organizations and government agencies, appoint inspections of their activities, request information or documents on grounds not provided for by law.

In the case under consideration, the provisions of article 7 of the Law cannot be applied in isolation from the provisions of article 6 of the Law, which provides for the subject, forms and limits of prosecutorial supervision, including the exclusive grounds for ordering inspections of private business entities.

Paragraph 1 of Article 7 of the Law regulates the procedure for conducting inspections, but not the grounds for ordering inspections, therefore, this provision of the law does not give the prosecutor grounds to send demands to the authorized body for the appointment of an inspection in respect of a private business entity.

Taking into account the lack of instructions, the local courts reasonably concluded that the administrative claim was satisfied.

The normative resolution of the Supreme Court of the Republic of Kazakhstan dated January 15, 2016 "On the right of access to justice and the powers of the Supreme Court of the Republic of Kazakhstan to review judicial acts" stipulates that the uniformity of judicial practice, characterized by uniform approaches to the interpretation and application of legal norms by courts, is achieved not only through the adoption by the Supreme Court of normative decisions clarifying issues of judicial practice, but also as a result of the cassation review of judicial acts that have entered into force. At the same time, the activity of the Supreme Court in reviewing judicial acts aimed at ensuring their legality, validity and fairness is of crucial importance for the formation of judicial practice.

By resolution of the Judicial Board on Administrative Cases of the Supreme Court  Courts of the Republic  Kazakhstan, on August 16, 2022, in the administrative case on the claim of GT & K LLP to the city prosecutor's office for the recognition of illegal actions to make and send a request for an audit, judicial acts of the first and appellate instances were canceled, with a new decision on the satisfaction of the claim in the case.

In these circumstances, the judicial board agrees with the conclusions of the courts, as they correspond to the circumstances established in the case, are made with the correct application of substantive law and its interpretation, based on the evidence provided by the parties, which has been properly evaluated.

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