Recognizing as illegal the actions of the bailiff to seize bank accounts

No. 6001-23-00-6ap/1193 dated 19.10.2023

Plaintiff: A.K.

Defendant: HSI

The subject of the dispute: on the recognition of illegal actions to seize bank accounts, to lift the arrests, Review the cassation appeal of the plaintiff

PLOT: On February 16, 2022, the CSI initiated enforcement proceedings to recover from A.K. in favor of the Bank the amount of debt owed by way of inheritance in the amount of 2,711,963 tenge, the refund of state duty in the amount of 81,359 tenge.

The Central Bank issued orders to request information about the debtor's bank account numbers and the availability of money on them, and to seize them. On the basis of the above-mentioned resolution of the CSI, arrests were made on funds held in bank accounts of A.K. On May 4, 2022, the bailiff issued a decision to lift these arrests.

By a court ruling dated August 25, 2022, the execution of the court's decision was postponed until September 25, 2022. On September 14, 2022, the bailiff again seized A.K.'s bank accounts in connection with non-fulfillment of obligations to pay monthly debts.

By resolutions on the cancellation of enforcement measures, the previously imposed arrests were lifted from funds dated September 14, 2022. On November 1, 2022, through the database on the AIS IPR system, the bailiff again seized the bank accounts of A.K.

The claim is motivated by the fact that the plaintiff is engaged in entrepreneurial activity, and the seized accounts do not allow for normal activities.

Judicial acts:

1st instance: the actions of the CSI to seize the bank accounts of A.K. are recognized as illegal.

Appeal: the decision of the court of first instance was overturned, and the court of appeal issued a decision to return the claim.

Cassation: the decision of the court of appeal is overturned, the decision of the court of first instance is upheld.

Conclusions: On November 2, 2022, A.K. appealed to the bailiff with a request to cancel the contested decision, but without receiving an appropriate response on November 29, 2022, she filed this claim with the court.

Consequently, the plaintiff did not miss the deadline for filing a claim.

Moreover, Article 424 of the CPC provides for an exhaustive list of grounds on which the court of appeal may overturn the decision of the court of first instance with rulings on the termination of the case or the return of the claim without consideration.

The return of the claim due to the omission of the procedural period from the stage of appeal consideration is not provided for by the specified norm, as well as by the norms of the APPC.

Thus, by returning the claim, the appellate instance violated the norms of the procedural law and exceeded the limits of its powers.

Checking the legality and validity of the substantive and procedural law norms applied in the case, the judicial board agrees with the conclusions of the court of first instance, since it has been reliably established and is not disputed by the parties that the bailiff, through the AIS IPR database, seized A.K.'s bank accounts without issuing an appropriate order, which should have been authorized by the prosecutor.

The conclusions of the court of first instance on the satisfaction of the claim are legitimate and justified.

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