Return of a Claim Due to Failure to Comply with Pre-Trial Dispute Resolution Procedure
According to subparagraph 1) of part 2 of Article 138 of the Administrative Procedural Code (APPC), the court shall issue a ruling to return a claim if the claimant has not complied with the pre-trial dispute resolution procedure established by law for this category of cases, and the possibility of applying such procedure has not been lost.
Returning a claim on grounds not supported by legal justification constitutes a significant violation of procedural law, as well as the principles of fairness and effectiveness of justice enshrined in the Constitution and the APPC.
The Judicial Panel for Administrative Cases of the Supreme Court (hereinafter – the Panel) reviewed the cassation appeal of the claimant in the case filed by JSC “Berekebank” (hereinafter – the Bank) against private bailiff Seitov I.I. seeking to declare his actions unlawful and to invalidate the appraisal report (case No. 6001-24-00-6ап/2807).
The cassation appeal was filed due to the return of the claim by local courts on the grounds of failure to comply with the mandatory pre-trial dispute resolution procedure, specifically due to the absence of evidence of prior обращения to the Expert Council of the Chamber of Appraisers before filing the claim.
However, these conclusions of the lower courts were found by the Panel to be unfounded and inconsistent with the current legislation.
According to paragraph 3 of Article 68 of the Law “On Enforcement Proceedings and the Status of Bailiffs,” a party to enforcement proceedings who disagrees with the appraisal may either apply to the Expert Council for an opinion or challenge the appraisal in court in accordance with the administrative judicial procedure.
Thus, the law does not establish the mandatory nature of pre-trial appeal of an appraisal report to the Expert Council. The choice between these two options is a right, not an obligation of the party. Therefore, the courts’ reference to the necessity of applying to the Expert Council as a mandatory pre-trial procedure is an incorrect legal interpretation.
The Panel emphasized that returning the administrative claim on such grounds violates both substantive and procedural law and restricts the constitutional right to judicial protection.
In accordance with Article 13 of the Constitution of the Republic of Kazakhstan and Article 9 of the APPC, everyone has the right to apply to the court to protect their violated or disputed rights, freedoms, and legitimate interests.
Given the public-law nature of the actions of the private bailiff, who exercises authoritative powers within enforcement proceedings, and considering that appraisal reports are subject to challenge exclusively within administrative proceedings, the Bank’s administrative claim was admissible and should have been examined on the merits.
It should also be noted that the essence of the claim was not to dispute the quality of the appraisal itself, but to challenge the actions of the bailiff in accepting an appraisal report prepared by a third party — LLP “NOK Expert PLUS.” Since the bailiff’s actions affected the claimant’s property interests, public-law relations arose between the parties, with the legality of the bailiff’s actions being the subject of the dispute.
Despite these circumstances, the local courts limited themselves to a formal reference to the pre-trial procedure and failed to assess the legal nature of the dispute or determine whether the claimant had alternative remedies. Moreover, they did not examine the consequences of the bailiff’s actions for the claimant’s rights and interests, which led to a distortion of the essence of the dispute and an unjustified restriction of access to justice.
The Panel indicated that where there are grounds to consider a case, courts are not entitled to return a claim based on formal reasons not supported by law.
These violations resulted in the annulment of the challenged judicial acts and the remittal of the case to the court of first instance for consideration on the merits.
Subsequently, during the preparation of the case for the preliminary hearing, the claimant filed a motion to withdraw the claim, and therefore the claim was returned pursuant to subparagraph 6) of part 2 of Article 138 of the APPC.
Formulation of Claims
When filing administrative claims challenging the actions (or inaction) of bailiffs, claimants formulate their demands in various ways.
Most commonly, such disputes are considered through claims for:
contestation,
compulsion,
performance of actions (Articles 132–134 of the APPC).
Under Article 132 of the APPC, if an administrative act violates the claimant’s rights, they may file a claim to invalidate it in whole or in part.
If the claimant disagrees with a bailiff’s resolution, it is sufficient to request that it be declared unlawful; it is not necessary to additionally challenge the actions separately.
Return of Claims
Part 2 of Article 138 of the APPC provides 17 grounds for returning an administrative claim.
The most common include:
subpara. 6) — withdrawal of the claim by the claimant;
subpara. 9) — conclusion of a settlement, mediation, or participatory agreement approved by the court;
subpara. 11) — the case is not subject to administrative proceedings;
subpara. 17) — lack of jurisdiction.
Additionally, under part 8 of Article 136 of the APPC, missing the filing deadline without valid reasons is also a ground for returning a claim.
Time Limits for Appeal
According to part 4 of Article 168 of the APPC, an appeal may be filed within ten working days.
Following the Constitutional Court’s decision of 6 October 2023 No. 33-NP, this period must be calculated from the date the full (reasoned) decision is issued.
This interpretation ensures the effective exercise of the right to appeal.
Evidence
Under Article 128 of the APPC, evidentiary rules are governed by the Civil Procedure Code unless otherwise specified.
Evidence may include:
enforcement documents;
bailiff’s resolutions;
payment receipts;
appraisal reports;
correspondence;
photos and videos;
witness testimony.
State Duty
Claimants challenging bailiffs’ actions are exempt from paying state duty.
If the claim is satisfied, the duty (0.5 MCI) is recovered from the respondent.
Procedural Coercive Measures
Under Article 127 of the APPC, the court may impose monetary penalties for:
delaying proceedings;
failure to submit evidence on time;
failure to appear in court.
Fines may amount to:
10 MCI,
20 MCI,
50 MCI (for non-enforcement of a court decision).
Key Legal Acts
Constitution of the Republic of Kazakhstan
Administrative Procedural Code (APPC)
Civil Procedure Code (CPC)
Civil Code (CC)
Law “On Enforcement Proceedings and the Status of Bailiffs”
Law “On Valuation Activities”
Law “On Mediation”
Regulatory Resolutions of the Supreme Court
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
