Return of a claim due to missing the deadline for filing in administrative proceedings

Return of a claim due to missing the filing deadline: assessment of the admissibility of an SMS message as evidence of proper notification in administrative proceedings

Basically, disputes in the analyzed category are considered by filing lawsuits for challenging, coercion, and actions (Articles 132-134 of the CPC).

Part 4 of Article 136 of the CPC provides that claims against the actions (inaction) of the bailiff for the execution of enforcement documents are filed with the court within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of It is known about him.

The establishment of such a deadline is conditioned by the need to ensure the continuity of enforcement proceedings and cannot be considered as violating the right to judicial protection.

In practice, there are cases when the actions of bailiffs are appealed by debtors in order to delay the terms of enforcement proceedings, with reasons stating that the party was not informed of the materials of the enforcement proceedings in a timely manner, and therefore, claims are filed in violation of the established deadlines for applying to the court.

When considering this category of disputes, special attention is paid to studying the materials of enforcement proceedings and establishing the methods and dates for notifying the parties to the enforcement proceedings of the actions committed.

By virtue of part 7 of Article 136 of the CPC, the deadline for filing a claim that has been missed for a valid reason may be restored by the court according to the rules of the CPC. The reasons for missing the deadline for filing a lawsuit and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.

In accordance with paragraph 2 of Article 126 of the CPC, the time limits established by law may be restored by the court if they are missed for a reason recognized by the court as valid.

At the same time, the validity of missing the deadline must be confirmed by acceptable and relevant evidence.

The court returns claims when the reasons for missing the deadline are not objective and do not indicate the existence of any facts that would prevent the timely appeal of the plaintiff to the court.

For example, Saparova A.T. filed an administrative claim with the court against the private bailiff Isimov R.M. (hereinafter referred to as the Private Bailiff) for the recognition of the resolution on the initiation of the enforcement proceedings dated August 23, 2023, as unlawful.

By the decision of the SMAS of the West Kazakhstan Region dated September 29, 2023, which was upheld by the decision of the SCAD of the West Kazakhstan Regional Court dated October 24, 2023, the claim was returned due to the expiration of the time limit for filing a lawsuit.

Disagreeing with the adopted judicial acts, Saparova A.T. filed a cassation appeal, in which she requested their cancellation and the referral of the case for a new trial on the merits. In support of her appeal, the plaintiff stated that she had not been properly notified of the initiation of the enforcement proceedings and only learned about it after receiving the relevant resolution by mail on September 1, 2023. She disputed the fact of timely notification through a SMS message, arguing that the message contained a set of hieroglyphs, without specifying the parties, the number and date of the enforcement document, as well as the details of the bailiff himself.

In the course of the case, it was established that on August 23, 2023, the Private Bailiff Isimov R.M. issued a resolution on the initiation of the enforcement proceedings against the debtor Saparova A.T. based on the enforcement document issued in favor of Toyasov M.Kh.

The subject of enforcement was the transfer of the founding documents, accounting documents, and title documents for the property of the Altyn Dan Farm to the bankruptcy manager.

According to the case materials, on August 24, 2023, the Private Bailiff sent copies of the resolution to the addresses of the parties involved in the enforcement proceedings. As Saparova A.T. confirmed, she received the postal notification and the resolution itself only on September 1, 2023.

This fact was not refuted during the course of the case, and no evidence was presented to indicate earlier notification of the addressee.

The local courts concluded that the plaintiff was notified on August 24, 2023, by sending a SMS message to her phone number, as evidenced by the delivery report.

The courts also pointed out that the message contained a link that allowed access to all the documents in the enforcement proceedings. However, the Supreme Court's SCAD found that the case file did not contain any reliable evidence to support the claim that the message was actually read, that the link provided access to the document, or that the text of the SMS was clear to the recipient. On the contrary, the plaintiff consistently argued that the message contained only symbols that did not identify the enforcement proceedings, their participants, or their content.

The courts did not assess the fact that a SMS notification cannot be considered a proper notice if it does not provide the recipient with actual and complete information about a legally significant action. These arguments were not examined or evaluated by the courts of first and appellate instance, despite their significance for determining the correct outcome. 

The fourth part of Article 168 of the CPC stipulates that an appeal, a petition from the prosecutor for administrative cases to challenge the actions (inaction) of bailiffs may be filed within ten working days from the date of the final decision, which is made no later than ten working days from the date of the announcement of the decision. Amendments to this provision were made on 11/21/2024, in the implementation of the resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 33-NP "On the review of paragraph one of Part Four of Article 168 of the CPC for compliance with the Constitution of the Republic of Kazakhstan".

As follows from the regulatory resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 33-NP "On reviewing for compliance with the Constitution of the Republic of Kazakhstan paragraph one of Part four of Article 168 of the APPC", the provisions of part four of Article 168 of the APPC are derived from the norms of part two of this article, which define the general rules of appeal not entered into force court decisions, calculated from the date of the final court decision.

In this regard, the period of ten working days provided for filing appeals and petitions of the prosecutor for administrative cases to challenge the actions (inaction) of bailiffs should be calculated from the date of the final decision, since the deadline set by the APPC for filing an appeal (ten working days from the date of the court decision) In fact, it may expire before the decision is made in its final form., this deprives participants in the process of the opportunity to familiarize themselves with its motivational part and fully exercise the right to appeal.

The Constitutional Court pointed out that such regulation may limit the constitutionally guaranteed right to judicial protection, 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 ("the day of the decision", "the day of the final decision", etc.) are not legally precise enough and allow for ambiguous interpretation, creating risks of violating the rights of participants in the process.

As a result, the Constitutional Court recognized the contested provision as consistent with the Constitution only in the interpretation that the time limit for filing an appeal and a prosecutor's appeal motion in the categories of administrative cases specified in part four of Article 168 should be calculated not from the moment the operative part was announced, but from the date of the final court decision.

Prior to the introduction of the above-mentioned amendments to part 4 of Article 168 of the CPC, local courts allowed for a different interpretation of this rule in terms of calculating the time limit for appealing a decision of the court of first instance.

The SCAD of the Supreme Court confirmed the priority of the constitutional and legal interpretation of procedural norms and consolidated the practice ensuring a uniform calculation of the time limits for appeal — from the date of the final decision.

This practice is of systemic importance, as it eliminates contradictions in judicial practice and helps ensure that the parties have a real opportunity to exercise their right to judicial protection in administrative proceedings.

Evidence and proof

The procedure for the legal regulation of evidence, factual data that is not acceptable as evidence, the subject of proof and sources of evidence, as well as the collection, research, evaluation and use of evidence (evidence) and other provisions on evidence and evidence are determined by the norms of the CPC, with the exception of the specifics established by the CPC (Article 128 of the CPC).

When appealing the actions of the CSI to the court, various documents and materials confirming violations by the CSI can serve as evidence. It is necessary to establish specific facts indicating illegal actions or omissions.

The evidence (enforcement proceedings, laced and numbered) includes:

Executive document:

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

The decisions of the Civil Court, which are being appealed, with an indication of the date and content.

Documents confirming violations:

Payment receipts, correspondence with the CSI, notices (SMS notification delivery reports), witness statements, property assessment reports, property inventory reports, inspection reports, non-residence certificates, photographs, videos and any other materials confirming the violation of the applicant's rights and legitimate interests.

Complaints to the judicial authorities or the Chamber of the CSI (if a complaint is filed against the actions of the CSI, a copy and responses to it can also be used as evidence)

Witness statements:

Witnesses who can confirm the circumstances of the case are called to court to testify.

Collection of state duty

Plaintiffs on claims to appeal the actions (inaction) of bailiffs from paying the state fee when filing a claim with the court are exempt in accordance with subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget."

In accordance with Part 1 of Article 122 of the CPC, issues related to the allocation of court costs are considered according to the rules of the CPC.

By virtue of part 1 of Article 117 of the CPC, the state fee from which the plaintiff was exempt, as well as the costs associated with the proceedings, are collected from the defendant, who is not exempt from paying court costs, to the state's income in full or in proportion to the satisfied part of the claim.

Upon satisfaction of the claim, the state fee to the local budget revenue is subject to collection from the bailiff in proportion to the satisfied part of the claim.

The state duty rate is calculated according to the rules of subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the budget" (0.5 MCI).

Application of procedural coercion measures

In the event of a violation of the norms of procedural legislation, when considering a case, measures of procedural coercion are applied in the form of imposing a monetary penalty.

In accordance with article 127 of the CPC, the court has the right to impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including in cases of presenting evidence, executing orders in violation of the time limit set by the court without valid reasons, if this led to a delay in the consideration of an administrative case, for each action (inaction) in the amount of ten monthly calculation indices.

For failure to comply with a requirement or a court request, failure to appear in court of a person participating in an administrative case, late notification of the court, late submission of a review, disobedience to the orders of the presiding judge, violation of the rules established in court, as well as other actions (omissions) clearly indicating disrespect for the court and (or) the judge, the court has the right to impose a monetary penalty in the amount of twenty monthly calculation indices.

For failure to comply with a court decision, a court ruling approving an agreement between the parties on reconciliation, mediation, or dispute settlement through a participatory procedure, the court imposes 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 during which it is to be enforced.

During the analyzed period, the courts have developed the practice of applying a measure of procedural coercion in the form of imposing a monetary penalty. In the category of disputes concerning the appeal of actions (inaction) of bailiffs, monetary penalties were most often imposed on defendants for the following reasons:

late provision of feedback;

non-timely provision of enforcement proceedings;

provision of enforcement proceedings not in full;

failure to appear (or not connect online) at a court hearing without a valid reason.

Abbreviations used:

· APPC - Administrative Procedural Code

· The Republic of Kazakhstan;

· CPC - The Civil Procedure Code of the Republic of Kazakhstan;

· Civil Code of the Republic of Kazakhstan - Civil Code of the Republic of Kazakhstan;

· The Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" - the Law on Enforcement Proceedings;

· NP VS - The normative resolution of the Supreme Court of the Republic of Kazakhstan;

·       Rules for the sale of seized property, including at auction in the form of an electronic auction - Rules;

· AIAS          -           Automated information and analytical system of judicial authorities of the Republic of Kazakhstan "Torelik";

· SCAD VS - Judicial Board for administrative cases of the Supreme Court of the Republic of Kazakhstan;

· SCAD or collegium - judicial collegium for administrative cases;

· SMAS - specialized interdistrict administrative Court;

· DU - Department(s) of Justice;

· GSI - State bailiff(s);

· CSI is a private bailiff(s).

· IP - enforcement proceedings

The main regulatory legal acts regulating the issues of enforcement proceedings are:

·       The Constitution of the Republic of Kazakhstan;

· APPC;

· GC;

· GPC;

· The Law on Enforcement Proceedings;

· The Law of the Republic of Kazakhstan "On Evaluation activities in the Republic of Kazakhstan";

· The Law of the Republic of Kazakhstan "On Mediation";

·       The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family";

· NP of the Supreme Court of March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings";

· NP of the Supreme Court of December 19, 2003 No. 12 "On liability for non-enforcement of judicial acts";

· NP of the Supreme Court of January 12, 2009 No. 2 "On the adoption of interim measures in civil cases";

· NP of the Supreme Council of November 29, 2024 No. 5 "On judicial decision on administrative cases";

· NP of the Supreme Court of November 29, 2019 No. 6 "On the application of legislation by courts when considering cases related to the recovery of alimony";

·       Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 "On approval of the amount of payment for the activities of a private bailiff" (expired on July 13, 2023);

·       Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372 "On approval of the List of types of wages and (or) other income from which alimony is deducted for the maintenance of minor children";

·       Order of the Minister of Justice of the Republic of Kazakhstan dated June 27, 2023 No. 416 "On approval of the amount of payment for the activities of a private bailiff";

·       Order of the Minister of Justice of the Republic of Kazakhstan dated March 28, 2019 No. 148 "On approval of Standard Forms of Decisions of private bailiffs";

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