Persons Participating in Administrative Proceedings: Plaintiff, Defendant, Interested Party and Prosecutor

Pursuant to Article 26, paragraph 1 of the APPC, the participants in administrative proceedings are the plaintiff, defendant, interested party and prosecutor.

Under subparagraph 33) of paragraph 1 of Article 4 of the APPC, a plaintiff is a person who has applied to the court for the protection of his or her violated or disputed rights, freedoms and legitimate interests, or a person in whose interests a claim has been filed by a prosecutor or another person authorized by the laws of the Republic of Kazakhstan to exercise such powers.

Pursuant to subparagraph 15) of paragraph 1 of Article 4 of the APPC, a defendant is an administrative body or official against whom a claim has been brought before the court.

Pursuant to paragraph 1 of Article 30 of the APPC, an interested party is a person whose rights, freedoms and legitimate interests are affected or may be affected by a judicial act.

In practice, disputes frequently arise between judicial enforcement officers and persons who are not parties to enforcement proceedings. This provision establishes the right to judicial protection where such person has a legitimate interest.

When claims are filed by persons who are not parties to enforcement proceedings, courts should determine whether there is another available means of protecting and restoring the disputed right and whether the actions in question have resulted in direct legal consequences for the plaintiff.

Pursuant to Article 31 of the APPC, the prosecutor exercises supervision over compliance with the law and enters administrative proceedings to provide an opinion.

Where necessary, in cases involving plaintiffs and defendants in disputes unrelated to entrepreneurial activity who are participants of the Great Patriotic War, persons equated to them, conscript military personnel, persons with Group I or II disabilities, or old-age pensioners, advocates (legal consultants) are engaged in the proceedings.

In claims affecting the interests of minors, guardianship and trusteeship authorities are engaged in the proceedings, with the mandatory participation of legal representatives.

In addition, pursuant to the Memorandum of Cooperation concluded between the parties, representatives of the Republican Chamber of Judicial Enforcement Officers may, where necessary, be engaged in the proceedings.

Issuance of Two Separate Rulings against One Judicial Enforcement Officer in Connection with Violations in Enforcement Proceedings

By the judgment of the Specialized Interdistrict Administrative Court of Kostanay Region dated 29 October 2024, the claim of LLP “Obshchezhitie” against Judicial Enforcement Officer L.Ya. Shakarova seeking to declare unlawful and annul the resolution dated 16 March 2024 on termination of enforcement proceedings was granted. A separate ruling was issued against Judicial Enforcement Officer L.Ya. Shakarova and forwarded to the Republican Chamber of Judicial Enforcement Officers (3994-24-00-4/816).

It was established that on 15 April 2016, Judicial Enforcement Officer L.Ya. Shakarova initiated enforcement proceedings No. 1118/16-39-2001 for recovery from E.F. Leksina in favour of LLP “Obshchezhitie” of a debt in the amount of KZT 150,253.

On 16 March 2024, the enforcement proceedings were terminated on the grounds that the enforcement document had been fully executed.

At the same time, the court hearing established that there were no documents confirming execution of the court judgment. Moreover, not all materials of the enforcement proceedings, including the original enforcement document, were submitted upon the request of the court of first instance, and the defendant misled the court by stating that the document had been lost.

Furthermore, the materials of the enforcement proceedings did not contain information on all enforcement actions or correspondence with the parties to the enforcement proceedings. Therefore, the Administrative Chamber of the Kostanay Regional Court requested the relevant documents from the claimant and the debtor, whereas such documents should have been contained in the enforcement case file.

In this regard, the Specialized Interdistrict Administrative Court of Kostanay Region and the Administrative Chamber of the Kostanay Regional Court issued two separate rulings against Judicial Enforcement Officer L.Ya. Shakarova. Following consideration thereof, the Head of the Republican Chamber of Judicial Enforcement Officers of Kostanay Region imposed a severe reprimand on Judicial Enforcement Officer L.Ya. Shakarova.

Formulation of Claims

When filing an administrative claim challenging the actions (inaction) of judicial enforcement officers, plaintiffs formulate their claims in different ways.

As a rule, disputes within the category under review are considered through claims for annulment, compulsion and performance of an action (Articles 132–134 of the APPC).

Pursuant to Article 132 of the APPC, where an encumbering administrative act violates the rights, freedoms or legitimate interests of the plaintiff, the plaintiff is entitled to file a claim for annulment seeking to revoke the administrative act in whole or in part.

Where the plaintiff disagrees with a resolution issued by a judicial enforcement officer, the claim should seek to declare such resolution unlawful. It is not necessary to simultaneously file a claim seeking to declare the relevant actions unlawful.

Pursuant to paragraph 2 of Article 84 of the APPC, an unlawful administrative act may be annulled in whole or in part.

Where a resolution is declared unlawful, the court annuls the relevant resolution.

Return of a Claim

Paragraph 2 of Article 138 of the APPC provides for 17 grounds for returning an administrative claim.

In cases falling within the category under review, claims are most frequently returned on the following grounds:

subparagraph 6) of paragraph 2 of Article 138 of the APPC – the plaintiff has withdrawn the filed claim;

subparagraph 9) of paragraph 2 of Article 138 of the APPC – the parties have entered into a settlement agreement, mediation agreement or agreement on settlement of the dispute through a participatory procedure, and such agreement has been approved by the court;

subparagraph 11) of paragraph 2 of Article 138 of the APPC – the case is not subject to consideration under administrative proceedings;

subparagraph 17) of paragraph 2 of Article 138 of the APPC – the case is not within the jurisdiction of the relevant court.

Another ground for returning a claim is provided for in paragraph 8 of Article 136 of the APPC. Under this provision, failure to comply with the time limit for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed time limit for applying to the court, constitutes grounds for returning the claim.

Courts do not encounter difficulties in resolving the issue of returning claims in the category of cases under review.

At the same time, implementation of the principle of the active role of the court has significantly increased the number of cases resolved amicably, through the conclusion of an agreement or withdrawal of the claim.

Time Limit for Appealing a Court Judgment

Pursuant to paragraph 4 of Article 168 of the APPC, an appellate complaint or a prosecutor's petition in administrative cases challenging the actions (inaction) of judicial enforcement officers may be filed within ten business days from the date on which the judgment is issued in its final form. The judgment must be prepared no later than ten business days from the date on which the judgment is pronounced.

Amendments to this provision were introduced on 21 November 2024 in implementation of Regulatory Resolution No. 33-NP of the Constitutional Court of the Republic of Kazakhstan dated 6 October 2023 “On consideration of the issue of compliance of the first paragraph of paragraph 4 of Article 168 of the APPC with the Constitution of the Republic of Kazakhstan.”

As follows from Regulatory Resolution No. 33-NP of the Constitutional Court of the Republic of Kazakhstan dated 6 October 2023 “On consideration of the issue of compliance of the first paragraph of paragraph 4 of Article 168 of the APPC with the Constitution of the Republic of Kazakhstan,” the provisions of paragraph 4 of Article 168 of the APPC derive from the provisions of paragraph 2 of that Article, which establish the general rules for appealing court judgments that have not entered into legal force, with the relevant period being calculated from the date on which the court judgment is issued in its final form.

Accordingly, the ten-business-day period established for filing an appellate complaint and a prosecutor's appellate petition in administrative cases challenging the actions (inaction) of judicial enforcement officers should be calculated from the date on which the court judgment is issued (prepared) in its final form, rather than from the date on which its operative part is pronounced. This is because the time limit established by the APPC for filing an appellate complaint (ten business days from the date of issuance of the court judgment) could, in practice, expire before the judgment is prepared in its final form, thereby depriving participants in the proceedings of the opportunity to review its reasoning and fully exercise their right of appeal.

The Constitutional Court indicated that such regulation may restrict the constitutionally guaranteed right to judicial protection, the right to qualified legal assistance, and the principle of equality of all before the law and the court.

The Constitutional Court noted that the concepts used in the APPC (“date of issuance of the judgment,” “date of preparation of the judgment in its final form,” etc.) are not sufficiently precise from a legal perspective and allow for differing interpretations, creating risks of violations of the rights of participants in the proceedings.

As a result, the Constitutional Court recognized the challenged provision as consistent with the Constitution only insofar as it is interpreted to mean that the time limit for filing an appellate complaint and a prosecutor's appellate petition in the categories of administrative cases specified in paragraph 4 of Article 168 of the APPC must be calculated not from the time the operative part of the judgment is pronounced, but from the date on which the court judgment is issued (prepared) in its final form.

Prior to the introduction of the above amendments to paragraph 4 of Article 168 of the APPC, local courts applied different interpretations of this provision with respect to calculating the time limit for appealing judgments of courts of first instance.

The Administrative Chamber of the Supreme Court confirmed the priority of the constitutional and legal interpretation of procedural rules and established judicial practice ensuring uniform calculation of appellate time limits from the date on which the judgment is prepared in its final form.

This practice is of systemic importance, as it eliminates inconsistencies in judicial practice and contributes to ensuring that the parties have a genuine opportunity to exercise their right to judicial protection within administrative proceedings.

Ниже — перевод как есть, с сохранением структуры, терминологии, нумерации статей и сокращений.

Evidence and Proof

The procedure for the legal regulation of evidence, factual data inadmissible as evidence, the subject matter of proof and sources of evidence, as well as the collection, examination, assessment and use of evidence (proof) and other provisions concerning evidence and proof are determined by the provisions of the CPC, except for the specific features established by the APPC (Article 128 of the APPC).

When challenging the actions of a JEO in court, various documents and materials confirming violations committed by the JEO may serve as evidence. It is necessary to establish specific facts indicating unlawful actions or inaction.

Evidence (the enforcement proceedings file, bound and numbered) includes:

Enforcement document:

The original or a certified copy of the writ of execution or court order on the basis of which the JEO acted.

Resolutions of the JEO being challenged, indicating the date and content thereof.

Documents confirming violations:

Payment receipts, correspondence with the JEO, notifications (reports on delivery of SMS notifications), witness statements, property valuation reports, property inventory reports, inspection reports, reports confirming non-residence, photographs, video recordings and any other materials confirming the violation of the rights and legitimate interests of the applicant.

Complaints to justice authorities or the Chamber of JEOs:

(In the event that a complaint against the actions of the JEO has been filed, a copy of the complaint and the responses thereto may also be used as evidence.)

Witness statements:

Witnesses who may confirm the circumstances of the case are summoned to court to give evidence.

Recovery of State Duty

Plaintiffs in claims challenging the actions (inaction) of judicial enforcement officers are exempt from payment of state duty when filing a claim with the court pursuant to subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget.”

Pursuant to paragraph 1 of Article 122 of the APPC, issues concerning the allocation of court costs are considered in accordance with the rules of the CPC.

Pursuant to paragraph 1 of Article 117 of the CPC, the state duty from which the plaintiff was exempt, as well as expenses related to the proceedings in the case, shall be recovered from the defendant who is not exempt from payment of court costs, to the state revenue in full or proportionally to the satisfied part of the claim.

If the claim is satisfied, the state duty shall be recovered to the local budget from the judicial enforcement officer in proportion to the satisfied part of the claim.

The rate of state duty is calculated in accordance with the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (0.5 MCI).

Application of Procedural Coercive Measures

If a violation of procedural legislation is established during consideration of the case, procedural coercive measures in the form of a monetary penalty shall be applied.

Pursuant to Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including in cases of submitting evidence or executing instructions in violation of the time limit established by the court without valid reasons, if this resulted in delaying the consideration of the administrative case, in the amount of ten monthly calculation indices for each action (inaction).

For failure to comply with a requirement or request of the court, failure of a person participating in an administrative case to appear in court, untimely notification of the court, untimely submission of a response, failure to comply with the instructions of the presiding judge at the court hearing, violation of the rules established in court, as well as other actions (inaction) clearly indicating disrespect for the court and/or judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices.

For failure to comply with a court judgment, a court ruling approving an agreement between the parties on reconciliation, mediation or settlement of a dispute through a participatory procedure, the court shall impose a monetary penalty on the defendant in the amount of fifty monthly calculation indices, indicating in the same judicial act a period not exceeding one month within which it is to be executed.

During the period under review, the courts developed a practice of applying the procedural coercive measure in the form of a monetary penalty. In the category of disputes challenging the actions (inaction) of judicial enforcement officers, monetary penalties were most frequently imposed on defendants for the following reasons:

• untimely submission of a response;
• untimely submission of enforcement proceedings materials;
• submission of enforcement proceedings materials not in full;
• failure to appear at a court hearing (or failure to connect online) without a valid reason.

Abbreviations Used:

· APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;

· CPC – Civil Procedure Code of the Republic of Kazakhstan;

· CC – Civil Code of the Republic of Kazakhstan;

· Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers” – Law on Enforcement Proceedings;

· NP SC – Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan;

· Rules for the Sale of Seized Property, Including at Auctions in the Form of an Electronic Auction – Rules;

· AIAS – Automated Information and Analytical System of Judicial Bodies of the Republic of Kazakhstan “Törelik”;

· SCAD SC – Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;

· SCAD or Collegium – Judicial Collegium for Administrative Cases;

· SIAС – Specialized Interdistrict Administrative Court;

· DOJ – Department(s) of Justice;

· SJO – State Judicial Enforcement Officer(s);

· JEO – Private Judicial Enforcement Officer(s);

· EP – Enforcement Proceedings.

The Main Regulatory Legal Acts Governing Enforcement Proceedings Are:

· Constitution of the Republic of Kazakhstan;

· APPC;

· CC;

· CPC;

· Law on Enforcement Proceedings;

· Law of the Republic of Kazakhstan “On Valuation Activities in the Republic of Kazakhstan”;

· Law of the Republic of Kazakhstan “On Mediation”;

· Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;

· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 31 March 2017 No. 1 “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;

· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 19 December 2003 No. 12 “On Liability for Non-Execution of Judicial Acts”;

· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 12 January 2009 No. 2 “On Taking Interim Measures in Civil Cases”;

· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 29 November 2024 No. 5 “On Court Judgment in Administrative Cases”;

· Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 29 November 2019 No. 6 “On the Application by Courts of Legislation in Considering Cases Related to the Recovery of Alimony”;

· Resolution of the Government of the Republic of Kazakhstan dated 4 May 2014 No. 437 “On Approval of the Rates of Payment for the Activities of a Private Judicial Enforcement Officer” (repealed on 13 July 2023);

· Order of the Minister of Justice of the Republic of Kazakhstan dated 24 December 2014 No. 372 “On Approval of the List of Types of Wages and/or Other Income from Which Alimony for the Maintenance of Minor Children Is Withheld”;

· Order of the Minister of Justice of the Republic of Kazakhstan dated 27 June 2023 No. 416 “On Approval of the Rates of Payment for the Activities of a Private Judicial Enforcement Officer”;

· Order of the Minister of Justice of the Republic of Kazakhstan dated 28 March 2019 No. 148 “On Approval of Standard Forms of Resolutions of Private Judicial Enforcement Officers”.

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