On the recognition as illegal and cancellation of the act on the appointment of an audit and the act on the results of the audit of justice
No.6001-24-00-6ap/3091ot June 03, 2025
Plaintiff: H.K.
Defendants: Russian State Institution "Department of Justice of the city of the Ministry of Justice of the Republic of Kazakhstan" (hereinafter – the Department).
The subject of the dispute: on the recognition as illegal and cancellation of the act on the appointment of an inspection and the act on the results of the inspection.
Review of the defendant's cassation complaint PLOT:
H.K. appealed to the court with the above claim.
By the decision of the court of first instance of May 4, 2024, the claim was satisfied.
The acts on the appointment of inspections from were declared illegal and canceled .
On November 15, 2023 for No. 221 and on the results of the inspection dated November 30, 2023 for No. 221-1.
By the decision of the Court of Appeal of September 17, 2024, the court's decision remained unchanged.
In the cassation appeals, the defendant asks to cancel the judicial acts that took place in the case and to make a new decision to dismiss the claim, pointing out the violation by the courts of the norms of substantive and procedural law.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case have been annulled. A new decision has been made in the case.
To refuse to satisfy the claim for recognition as illegal and cancellation of the act on the appointment of an inspection.
To return the claim regarding the claim for recognition as illegal and cancellation of the act on the results of the audit.
Conclusions: Based on the results of the analysis and verification of the legality of the issuance of executive inscriptions by notaries and their execution by private bailiffs for 2021-2023, the Prosecutor General's Office of the Republic of Kazakhstan sent a submission to the Minister of Justice of the Republic of Kazakhstan on the elimination of violations of legality (hereinafter referred to as the submission).
In this regard, the regional departments on the part of the Ministry have been instructed to carry out, in accordance with the established procedure, an inspection of notaries for compliance with the law when issuing executive inscriptions.
In pursuance of this instruction, on November 15, 2023, the Department appointed an unscheduled inspection against the plaintiff, and an inspection appointment act No. 221 was drawn up.
The period under review is from January 1, 2021 to October 4, 2023.
On November 30, 2023, an act on the results of the audit No. 221-1 was drawn up, which established 28 facts of violation by the plaintiff of the legislation regulating the procedure for making executive inscriptions, in terms of violation of the rules of territoriality.
The local courts, satisfying the claim, concluded that the prosecutor's office's submission could not be the basis for ordering an unscheduled inspection, since the inspection had already been carried out by the prosecutor's office for the same period and on the same issue. The defendant had no legal grounds for ordering an inspection.
The Board does not agree with the conclusions of the local courts due to their inconsistency with the norms of substantive law and the circumstances of the case.
By virtue of subparagraph 4) of paragraph 5 of Article 144 of the Criminal Code, one of the grounds for an unscheduled inspection of subjects (objects) of control and supervision is the prosecutor's requirement for specific facts of causing or threatening harm to life, human health, the environment, the rights and legitimate interests of individuals and legal entities, and the state.
By virtue of the provisions of article 17 of the Constitutional Law "On the Prosecutor's Office" (hereinafter referred to as the Constitutional Law), supreme supervision on behalf of the Republic of Kazakhstan is carried out by checking compliance with legality, analyzing the state of legality, and evaluating acts that have entered into force.
According to paragraphs 1 and 2 of Article 32 of the Constitutional Law, the system of acts of the Prosecutor's Office consists of: 1) acts of prosecutorial supervision: protest, sanction, instruction, presentation, resolution; 2) acts of prosecutorial response: petition, statement (claim), appeal, explanation of the inadmissibility of violations of the laws of the Republic of Kazakhstan; 3) acts regulating the organization and activities of the prosecutor's office: orders, orders, regulations, instructions, regulations and others.
Acts of prosecutorial supervision and response are introduced based on the results of checking compliance with legality, analyzing the state of legality, evaluating acts that have entered into force, reviewing appeals and performing other functions provided for by this Constitutional Law, the laws of the Republic of Kazakhstan, and are mandatory for review and execution by the bodies, organizations and officials to whom they are addressed.
It follows from the inspection materials that the prosecutor's office conducted a random check on individual notaries, as well as an analysis
the activities of notaries in the issuance of executive inscriptions in the republic as a whole.
At the same time, the plaintiff's activities were not subjected to a prosecutor's check; the certificate on the results of the check and analysis provides only statistical data on the number of executive inscriptions issued by H.K., taken from publicly available sources.
The plaintiff does not dispute these circumstances, and at the hearing she confirmed that the prosecutor's office had not conducted an investigation into her.
In this regard, the conclusions of the courts on the illegality of the defendant's initiation of a contested audit on the same issue over the same period do not correspond to the factual circumstances of the case.
The reason for the appointment of an inspection by the Department was the prosecutor's submission on the need to verify the activities of notaries who executed executive inscriptions in violation of the rules of territoriality, which meets the requirements of Article 144 of the PC.
Based on paragraph 4 of Article 155 of the CPC, the court refuses to satisfy the claim if, upon its consideration, it finds that the contested action (inaction) has been committed, the decision has been made in accordance with the competence and legislation of the Republic of Kazakhstan.
The contested administrative act on the appointment of an audit was adopted by the Department in accordance with the competence and legislation of the Republic of Kazakhstan.
Considering that the case does not require the collection and additional verification of evidence, the circumstances of the dispute have been fully established, however, the courts of first and appellate instances made mistakes in their legal assessment, interpretation and application of substantive law, the judicial board considered that the judicial acts rendered in the case should be canceled with a new decision to dismiss the claim for challenging the act on the appointment of an inspection.
Regarding the contesting of the act on the results of the audit, the judicial board came to the following conclusion.
According to subparagraph 4) of the first part 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.
All these signs, by virtue of subparagraph 5) of the first part of Article 4 of the CPC, must also be inherent in an administrative action.
(inaction).
At the same time, the contested act on the results of the audit is not an administrative act subject to independent appeal, since it does not implement, does not restrict, or otherwise does not
It affects the realization of the rights and legitimate interests of the plaintiff and is an interim act.
Accordingly, the plaintiff's claims in this part are subject to return on the basis of subparagraph 11) of the second part of Article 138 of the CPC, as not subject to consideration in administrative proceedings.
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