On the recognition of illegal inaction
On March 16, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of the presiding judge N., Judges A and B, with the participation of the applicant N., her representative A., representatives of U., A., and others, considered in open court using mobile videoconference the civil case at the request of L.A. on the recognition of the illegal inaction of the KGP at the Health Department of the regional Akimat, the State Institution "Health Department", the Russian State Institution "Department of Sanitary and Epidemiological Control", the Russian State Institution "City Department of Sanitary and Epidemiological Control",
received at the request of the applicant's representative S.A. for a cassation review of the decision of the judicial board for civil cases of the regional court dated July 22, 2021,
L.A. She applied to the court with a statement declaring illegal the inaction of the KGP at the Health Department of the regional Akimat (hereinafter referred to as the Center), the State Institution "Health Department" (hereinafter referred to as the Health Department), the State Institution "Department of Sanitary and Epidemiological Control" (hereinafter referred to as the SEC Department), the State Institution "City Department of Sanitary and Epidemiological Control" (Next – Management of the SEC), which served as an obstacle to the exercise of her right to receive a one-time social benefit provided for in the Rules for the implementation of one-time social benefits to employees of the healthcare system in the event of their infection with coronavirus infection or viral pneumonia during anti-epidemic measures, as well as to their families in the event of the death of an employee, regardless of participation in anti-epidemic measures, approved by the joint Order of the Minister of Labor and Social Protection of the Population of the Republic of Kazakhstan dated April 9, 2020 No. 129 and the Minister of Health of the Republic of Kazakhstan dated April 9, 2020 No. KR DSM-35/2020 (hereinafter referred to as the Rules).
The decision of the city court of May 20, 2021, upheld by the decision of the judicial board for civil cases of the regional court of July 22, 2021, denied the application.
The Court of First instance issued a private ruling to the Center.
In the petition, S.A. asks to cancel the decision of the regional court of July 22, 2021 due to violations of substantive law, inconsistency of the conclusions of the courts with factual circumstances, and to send the case for a new appeal. He argues that as a result of the inaction of the defendants, L.A. was deprived of the opportunity to receive a one-time social payment in the amount of 2,000,000 tenge, provided for by the Rules in force at the time of her coronavirus infection.
In their responses to the petition, the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan, the Ministry of Health of the Republic of Kazakhstan, the SEC Department, and the Center ask that the contested judicial acts remain unchanged due to their legality and validity.
After hearing the explanations of the applicant and her representative in support of the petition, the objections of the representatives of the defendants and third parties, and examining the materials of the civil case, the judicial board of the Supreme Court (hereinafter referred to as the judicial board) comes to the following conclusion.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such violations were committed during the consideration of the case.
The court found that L.A. had been working at the Center since October 15, 2014 as a nurse at the children's infectious diseases department, and since August 3, 2020, she has been transferred to the coronavirus infection hospital No. 1.
On August 16, 2020, L.A. tested positive for coronavirus infection COVID-19 by polymerase chain reaction, and therefore she was hospitalized in an infectious diseases hospital, where she was treated inpatient until August 24, 2020, after which she underwent outpatient treatment until September 7, 2020.
Paragraphs 1, 2, 6, and 7 of the Rules establish the procedure for making one–time social payments (hereinafter referred to as ERUs) to healthcare system employees in case of infection or viral pneumonia on clinical and epidemiological grounds that do not exclude coronavirus infection (probable case of coronavirus infection), as well as to their families in case of death.
In particular, subparagraph 2) Paragraph 2 of the Rules stipulates that ERU is carried out by doctors, secondary and junior medical workers of dispensary hospitals, doctors and paramedics of emergency medical care, including outpatient clinics, as well as doctors and secondary medical workers of sanitary aviation infected with coronavirus infection COVID-19 or viral pneumonia during anti-epidemic measures during the period of validity. restrictive measures in accordance with Article 104 of the Code of the Republic of Kazakhstan "On the Health of the people and the healthcare system", as well as their families, in case of death of an employee from infection (disease).
The fact that L.A., at the time of infection with coronavirus infection during the performance of her official duties, belonged to the category of medical workers listed in subparagraph 2) of paragraph 2 of the Rules was not disputed by the parties.
In accordance with the Rules for the organization of ERUs to persons specified in paragraph 2 of the Rules (with the exception of persons who are employees of healthcare organizations under the jurisdiction of the Ministry of Health of the Republic of Kazakhstan, its departments, the state body in the field of sanitary and epidemiological welfare of the population or its territorial divisions), local executive bodies of regions, cities of republican significance and the capital A commission is being created.
Paragraph 6 of the Rules stipulates that, based on information provided by the heads of healthcare organizations, the state body in the field of sanitary and epidemiological welfare of the population and its territorial divisions, subordinate organizations, provided in writing within two working days from the date of detection of the fact of infection (illness) of a healthcare worker with coronavirus infection, viral pneumonia, within five working days, the commission reviews and, after checking for information on the employee in the database of the Resource Management System, makes a positive or negative decision on the right or lack of right to receive ERUs and forms lists of employees of the healthcare system and (or) family members, employees of the healthcare system (in case of death) in accordance with the established form, infected with coronavirus infection, infected with viral pneumonia. Based on the results of the audit, an electronic application for ERUs is generated through the information system individually for each employee.
In accordance with paragraph 7 of the Rules, the above-mentioned decision on the right or absence of the right of a listed person to receive an ERU is made by the commission, which, when making such a decision, checks the employees represented in the lists for compliance with paragraph 2 of the Rules.
According to paragraph 9 of the Rules, as amended during the period of L.A.'s infection and treatment with coronavirus infection, based on information from the heads of healthcare organizations provided in writing within two working days from the date of detection of the fact of infection of a healthcare worker with coronavirus infection COVID-19, viral pneumonia, the commission forms lists of healthcare workers, specified in paragraph 2 of the Rules, in accordance with Annex 1 to the Rules. A card of the epidemiological examination of the outbreak of an infectious disease, in form No. 415, approved by the order of the Minister of National Economy dated May 30, 2015, is attached to the list of health care workers for obtaining an ERU.
In the case, it was established that by order of the akim of the region No. 64-r dated June 1, 2020, a commission was established to implement the ERU to healthcare workers involved in anti-epidemic measures to combat coronavirus infection, in case of infection or death.
Upon L.A.'s infection with coronavirus infection on August 16, 2020, an employee of the Zh.K. Center issued an emergency notification on form No. 090/u, which was sent electronically to the Health Department on August 17, 2020, but instead of the email address used by the latter. zpp@dsm.gov.kz the notification was mistakenly sent to a different address – zpp@dsm.gov.kz .
As a result of the error that occurred upon L.A.'s infection with coronavirus infection, an emergency notification was not received by the Health Department in a timely manner, an epidemiological examination was not conducted, the relevant materials were not submitted to the commission for consideration and, accordingly, the issue of L.A.'s inclusion in the list of persons eligible for ERUs was not considered.
Appealing to the court, L.A. argues that due to infection with coronavirus infection during the performance of her work duties, she has the right to receive an ERU in the amount of 2,000,000 tenge provided for by the Rules, but as a result of an error made by an employee of the Center and the inaction of other above-mentioned state institutions, she is deprived of this right.
The city and regional courts, having recognized as established the fact that L.A. had been infected with coronavirus infection in the workplace, as well as the fact that the applicant's right as an applicant for ERU had been infringed as a result of improper performance of official duties by an employee of the Center, the refusal to satisfy the application and the appeal was motivated by the indication that the legal consequences for L.A. They are connected not only with the inaction of the Center, which resulted in non-compliance with paragraph 9 of the Rules, but also with the termination of the ERU implementation mechanism due to the cancellation of the Rules by a joint order of the Minister of Health and the Minister of Labor and Social Protection of the Population dated October 24, 2020.
However, it is impossible to agree with such conclusions of the court.
It follows from L.A.'s statement that she appealed to the court in accordance with Chapter 29 of the CPC, which was in force at the time of the appeal.
In accordance with Article 293 of the CPC (as amended at the time of the court's decision), decisions, actions (inaction) of state bodies and officials subject to judicial challenge include collegial and individual decisions and actions (inaction) resulting in:
1) the rights and freedoms of a citizen and the legitimate interests of a legal entity have been violated;
2) obstacles have been created to the exercise by a citizen of his rights and freedoms, as well as by a legal entity of legitimate interests;
3) any obligation has been unlawfully imposed on a citizen or a legal entity or they have been unlawfully held accountable.
The Court clearly established that the Center had not properly fulfilled the obligation established by the Rules to provide timely information about L.A.'s infection, as a result of which obstacles were created to the applicant's exercise of her right to receive ERUs.
At the same time, the termination of the ERU implementation mechanism due to the cancellation of the Rules two months after the inaction committed against the applicant does not affect his legal assessment.
Consequently, L.A.'s demands to recognize the Center's inaction as illegal had to be satisfied.
In accordance with Article 227 of the CPC (as amended at the time of the court's decision), if the statement about the illegality of the defendant's actions (inaction) is recognized, the court obliges the state body to eliminate the violation in full and restore the violated rights, freedoms and legitimate interests of the citizen.
As of today, the Rules have been canceled, the commission has ceased its activities, therefore it is not possible to oblige the Center to eliminate the violation and restore the rights by sending relevant information regarding the applicant.
It follows from the case file that on January 8, 2021, in response to L.A.'s appeal on the ERU issue, the Health Department clarified that as a result of the cancellation of the Rules, applications remained without consideration, and the further algorithm, mechanism of financing and payments could be regulated only through the Government of the Republic of Kazakhstan.
By Order of the Prime Minister of the Republic of Kazakhstan dated January 27, 2020 No. 10-r "On measures to prevent the occurrence and spread of coronavirus infection in the territory of the Republic of Kazakhstan", an Interdepartmental Commission was established to prevent the occurrence and spread of coronavirus infection in the territory of the Republic of Kazakhstan (hereinafter referred to as the Interdepartmental Commission).
According to subparagraph 5) of paragraph 14 of the minutes of the meeting dated August 5, 2021 No. 21-03/05-2884, the Interdepartmental Commission instructed the akimats of the regions to make social payments from the reserve of the local budget to employees of the healthcare system who contracted coronavirus infection or viral pneumonia during anti-epidemic measures from April 9 to October 24, 2020, as well as their families, including in respect of which there is a court decision that has entered into force recognizing the right to receive these payments.
Considering the above, the judicial board, in order to restore the violated rights of L.A., considers it possible to recognize her right to receive an ERU.
Since the circumstances of the case were fully and correctly established by the courts of the first and appellate instances, but an error was made in the application of substantive law, the judicial board considers it possible, without transferring the case for a new hearing, to change the judicial acts in the case, canceling the refusal to recognize the Center's inaction as illegal, with a new decision on satisfaction in this part. applications and recognitions for L.A. the right to receive ERUs.
The remaining judicial acts are to be upheld, since by refusing to satisfy the requirements submitted to the Department of Health, the Department of the SEC and the Department of the SEC, the local courts correctly indicated that there was no violation of the Rules on the part of the latter, since information about L.A.'s infection with coronavirus infection was not submitted to the commission for consideration due to the Center's fault.
Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED:
The decision of the city court of May 20, 2021 and the decision of the judicial board for civil cases of the regional court of July 22, 2021 should be amended, regarding the refusal to satisfy L.A.'s application for recognition of the illegal inaction of the KGP at the Health Department of the regional Akimat, judicial acts should be canceled, in this part a new decision should be made to satisfy the application.
To recognize as illegal the inaction of the KGP at the Health Department of the regional Akimat, expressed in the failure to comply with the Rules for the implementation of one-time social payments to employees of the healthcare system, in case of their infection with coronavirus infection or viral pneumonia during anti-epidemic measures, as well as their families in the event of the death of an employee, regardless of participation in anti-epidemic measures, approved by the joint Order of the Minister of Labor and Social Protection of the Population of the Republic of Kazakhstan dated April 9, 2020 No. 129 and the Minister of Health of the Republic of Kazakhstan dated April 9, 2020 No. KR DSM-35/2020.
To recognize L.A.'s right to receive a lump sum social payment.
The rest of the judicial acts are to remain in force.
Partially satisfy the petition of the applicant's representative.
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