Recognition of the judge's actions as unlawful

No.6001-23-00-6ap/238 dated 05/18/2023.

Plaintiff: A.A.

The defendant: Judge of the Supreme Court of the Republic of Kazakhstan

The subject of the dispute: the recognition of the judge's actions as unlawful

Review of the plaintiff's cassation appeal

PLOT:

As part of the appeal against judicial acts on 04/22/2022, the plaintiff, through the judicial office, sent a cassation appeal in the civil case against her claim to the city prosecutor's office. Her complaint was returned with an explanation of the need to file an application for the restoration of the missed procedural period, indicating the validity of the reason for its omission. The plaintiff wrote several letters to the judge's electronic address, asking for clarification of the missed deadline, but there was no response, and the complaint was returned on formal grounds.

Judicial acts:

1st instance: the claim is returned.

Appeal: the definition remains unchanged.

Cassation: judicial acts are upheld.

Conclusions:

The reason for the plaintiff's appeal to the court with this claim was the return of the cassation appeal explaining the procedure for restoring the time allowed for its filing in a civil case.

In accordance with the second part of Article 102 of the APPC, the courts, in the order of administrative proceedings, have jurisdiction over disputes arising from public-legal relations provided for by the APPC.

The APPC establishes that 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 law (subparagraph 4) of the first part of Article 4 of the APPC).

Based on the authority of an administrative body, its acts, actions (inaction) can either implement, restrict, diminish, or otherwise affect the realization of the rights and legitimate interests of the subjects to whom the administrative act and/or the act (inaction) is addressed.

Public law relations arise between subjects of law through the exercise by one of the participants in relation to the other of their authority.

Accordingly, disputes arising between an administrative body and a person in respect of whom the public functions of that administrative body established by law are implemented are considered in the order of administrative proceedings.

According to the plaintiff, the contested action follows from the above-described description received by her in response to the cassation appeal filed within the framework of the CPC.

As follows from the content of the letter contested by the plaintiff, it:

It is explanatory in nature regarding the procedure for appealing a judicial act in cassation and restoring the time limit for its release.;

It does not restrict or detract from her rights and legitimate interests, nor does it impose duties directly on her, the failure of which would entail measures of State coercion against the plaintiff.

This means that the contested action does not have the characteristics of an administrative act and does not fall into the orbit of public law relations.

According to subparagraph 2) of the seventh part of Article 3 of the CPC, cases whose procedure is provided for by the criminal procedure, civil procedure legislation of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan on administrative violations are not subject to consideration in administrative proceedings.

Based on the meaning of this rule and the circumstances of the case established by the courts, it follows that the plaintiff's exercise of the right to appeal judicial acts in a civil case is possible exclusively within the framework of the CPC.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases