On the recognition of illegal actions regarding the adoption and initiation of enforcement proceedings

No. 6001-24-00-6ap/1991 dated March 04, 2025

Plaintiff: D.M.

Defendant: HSI

The subject of the dispute: on the recognition of illegal actions regarding the adoption and initiation of enforcement proceedings dated February 15, 2024 on determining the place of residence of minor children with their mother, on the obligation to eliminate violations, on the cancellation of the decision to initiate enforcement proceedings.

Review of the plaintiff's cassation complaint PLOT:

By the decision of the specialized interdistrict juvenile Court dated March 9, 2023, the place of residence of minor A. was determined with the mother, the place of residence of minor children of R. N. was determined at the place of residence of the father.

By the decision of the judicial board for civil cases of the City Court dated June 7, 2023, the decision of the court of first instance was changed. Regarding the determination of the place of residence of minor children at the place of residence of the father, it was canceled and in this part a new decision was made to dismiss the claims.

The ruling of the Court of Appeal dated January 26, 2024 clarified that the place of residence of minor children is the place of residence of the mother.

On February 15, 2024, the bailiff initiated enforcement proceedings and took measures to ensure the execution of the enforcement document.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: the decision of the appeal was overturned, with a new decision on the satisfaction of the claim. The CSI's action on the adoption and initiation of enforcement proceedings dated February 15, 2024 on determining the place of residence of minor children with their mother was declared illegal. The decision of the CHSI on the initiation of enforcement proceedings has been canceled.  

proceedings on determining the place of residence of minor children with their mother.

Conclusions: by resolving the dispute and rejecting the claim, the local courts concluded that the enforcement proceedings were initiated in accordance with the legislation of the Republic of Kazakhstan, since judicial acts that have entered into force are subject to mandatory execution.

The ruling of the judicial board for Civil Cases of the City Court dated January 26, 2024, which clarified the residence of children with their mother, is not an enforceable judicial act, since the above judicial acts do not determine the place of residence of minor children with their mother. That is, there were no grounds for issuing a writ of execution, respectively, and for initiating enforcement proceedings, therefore, by virtue of subparagraph 4) of paragraph 1 of Article 38 of the Law, the CSI was obliged to issue a decision on the refusal to initiate enforcement proceedings.

At the same time, despite the requirements established by Law, the CSI, without checking the received enforcement document for the existence of grounds for refusing to initiate enforcement proceedings, unlawfully initiated enforcement proceedings, whereas by virtue of paragraph 3 of Article 126 of the law, the bailiff is obliged to prevent infringement of the rights and legitimate interests of individuals and legal entities in his activities.

Thus, the board concluded that the courts of the first and appellate instances had incorrectly applied the norms of substantive and procedural law, which is why the contested judicial acts were annulled with the adoption of a new decision on the satisfaction of the plaintiff's claims.

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