Recognition of the appointment of an unscheduled inspection as illegal
No. 6001-23-00-6ap/1434 dated 07.12.2023
Plaintiff: I.J.
The defendant: State Institution "Department of State Architectural and Construction Control" (UGASK)
Interested person: Akimat of the region
The subject of the dispute:
1) to declare illegal the failure to provide a response to the plaintiff's appeal dated October 8, 2022;
2) to declare illegal the appointment of an unscheduled inspection in accordance with Act No. 60 of November 3, 2022;
Review of the defendant's cassation complaint PLOT:
On September 8, 2022, based on the results of the UGAC inspection, an order was sent to the plaintiff to eliminate violations of paragraph 34 of the checklist – suspension of operation of the residential building building No. 2.,
C street -1, before its commissioning, for the period of elimination until October 8, 2022.
On October 8, 2022, the plaintiff applied to UGASK for an extension of the deadline for eliminating violations, indicating the reasons for the impossibility of executing the order. Upon receipt of the request, the defendant did not initiate an administrative procedure, and the application was not returned to the plaintiff, indicating which requirements it did not meet.
The plaintiff filed the above-mentioned claim with the court, arguing that the defendant did not respond to his e-mail request for an extension of the time limit for the elimination of violations specified in Order No. 39 dated September 8, 2022. The plaintiff also does not agree with the act on the appointment of an unscheduled inspection dated November 3, 2022, since at that time the court was conducting a civil case on the claim of LLP "K" to the mayor of the city on the recognition of illegal acts of local executive authorities on granting permission for the construction of a residential building.
Judicial acts:
1st instance: the claim is partially satisfied. Essentially, it was decided: to declare illegal the inaction of UGASK by not providing a response
to the plaintiff's appeal dated October 8, 2022;
to oblige UGASK to carry out an administrative procedure to review the plaintiff's appeal dated October 8, 2022 to extend the deadline for eliminating violations within ten working days from the date of entry into force of the decision.;
The rest of the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
1. Satisfying the claim, SMAS proceeded from the fact that (key arguments):
according to claim No. 1
a) according to article 152 of the Code of Criminal Procedure, based on the results of an inspection by an official of the control and supervision body, an order is drawn up to eliminate the identified violations in cases of its detection, with a deadline for execution. In case of identified violations, if additional time and (or) financial costs are required, the subject of control and supervision has the right, no later than three working days, to apply to the state body that conducted the audit with an application for an extension of the time limit for eliminating violations. The state body that conducted the inspection, within three working days, taking into account the arguments set out in the application, decides to extend the deadline for eliminating violations or to refuse to extend it with a reasoned justification.;
b) according to Article 64 of the APPC, an application submitted in accordance with the procedure established by this Code is subject to mandatory admission, registration, accounting and consideration;
c) the defendant, in violation of the requirements of Chapter 9 of the CPC and Article 152 of the PC, did not consider the merits of the plaintiff's application for an extension of the time limit for the elimination of violations, that is, by his inaction, violated the plaintiff's right to consider his appeal. The defendant's arguments about the absence of an electronic signature in the appeal
The court considers the digital signature of the person authorized to sign it to be untenable, since the fact of receipt of the appeal by the defendant is not denied and is confirmed by the case materials, therefore, in case of non-compliance with the requirements, the defendant should have set a deadline for its correction, and notify the applicant.;
according to claim No. 2
a) the plaintiff's arguments about the illegality of the appointment of an unscheduled inspection in view of the consideration by the court of a civil case against the claim of LLP "K" to the mayor of the city are not justified, since this circumstance cannot prevent the appointment of an inspection as part of the control of the execution of the order;
b) according to the fourth part 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. Thus, the contested administrative act was issued by the defendant in accordance with his competence and the requirements of the law, therefore, the claim in this part is not subject to satisfaction.
2. Leaving the decision of the SMAC unchanged, and agreeing with its conclusions in full, the Court of Appeal stated that (key arguments):
a) the representative of the defendant explained to the court that the plaintiff's appeal was received by mail on October 12, 2022. However, this explanation is refuted by his own objection to the claim dated November 22, 2022, where he did not deny the receipt of the plaintiff's statement on October 8, 2022. At the same time, the defendant admitted that the response to the plaintiff's appeal had not been given. These circumstances confirm the defendant's violation of the requirements of Article 76 of the CPC of the Republic of Kazakhstan regarding the procedure and time frame for considering citizens' appeals.;
b) the defendant's arguments about the absence of a signature in the appeal and sending it to another email address are not justified, since according to the rules of part six of Article 64 of the CPC, if the appeal does not meet the established requirements, the administrative authority indicates to the applicant which requirements the appeal does not meet, sets a reasonable time to bring it in line with the requirements;
c) the defendant's arguments about non-compliance with the pre-trial dispute settlement procedure are not grounds for revoking a judicial act, since the rules of subparagraph 4) of the first part of Article 424 of the CPC do not allow the cancellation of a court decision on the grounds of non-compliance by the plaintiff with the pre-trial dispute resolution procedure.;
d) the decision of the court of first instance regarding the refusal to recognize as illegal the appointment of an unscheduled inspection is lawful and motivated, the parties have not appealed.
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