The burden of proving compliance with the law of the appealed decision of the committed action (inaction) falls on the official.

L., M., Ch. and F. filed a lawsuit against the head of the Department of the State Sanitary and Epidemiological Supervision Committee of the Ministry of Health in Almaty, D. on recognizing the inaction of an official in terms of failure to carry out sanitary and epidemiological supervision, expressed in the absence of control over the establishment and designation of sanitary protection zones and gaps with special signs on the ground, assigning the duty to the official to take measures to comply with the Land Code in terms of the establishment of special signs on the ground indicating sanitary protection zones and gaps, assigning the duty to provide documents on the recovery of court costs, received at the request of the applicants' representative K. on challenging the judicial acts that took place in the case. The applicants indicated that for many years they had been forced to live in sanitary protection zones (including on the territory of sanitary breaks) of the private enterprise Ts LLP, railways and highways. In 2011, the situation was further complicated by the reconstruction of Bokeikhanov Street, where their houses are located near the named production facilities that pose a danger to life and health.

The burden of proving compliance with the law of the appealed decision of the committed action (inaction) falls on the official.

However, the local government authorities did not control the organization of the sanitary protection zone, the observance of the regime of this territory, the establishment of its borders on the ground and the eviction of residents outside the sanitary protection zone (hereinafter referred to as the SPZ). The applicants requested that the official, in particular the head of the Department of State Sanitary and Epidemiological Supervision for the city of Almaty (hereinafter referred to as the Department), D., be recognized as inaction in this matter, which resulted in the lack of control on his part over the establishment of SPZ and gaps with special signs on the ground. Assign him the duty to take the necessary measures to designate these zones in accordance with the requirements of the Land Code. The applicants requested that the head of the named state institution be required to submit the necessary documents reflecting the boundaries of the SPZ and sanitary gaps in relation to their homes. The decision of the Medeu District Court of Almaty dated December 26, 2012 denied the application. The court's decision was left unchanged by the decisions of the appellate and cassation instances. After discussing the case materials and the arguments of the petition, the supervisory judicial board of the Supreme Court came to the following conclusions. The applicants, who live near the enterprise of Ts LLP, railways and highways, filed a statement regarding the inaction of the official regarding the need to take control measures to designate a sanitary protection zone and sanitary gaps in the area, and also asked him to oblige him to submit the necessary documents reflecting these zones regarding the location of the enterprise and their homes. In support of their arguments, the applicants cited a number of regulatory legal acts directly regulating the activities of sanitary and epidemiological surveillance authorities, as well as the Land and Environmental Codes. The court, rejecting the application, pointed out that the list of regulatory legal acts that guide the bodies of the sanitary and epidemiological service, Environmental and Land Codes are not included. On this basis, the court concluded that the application of measures to establish special signs on the ground indicating sanitary protection zones and gaps is not within the authority of this service. At the same time, the court referred to the provisions of Article 65 of the CPC stating that each party must prove the circumstances to which it refers in support of its claims, whereas they were not, in the court's opinion, presented by the applicants. Subsequent judicial instances also agreed with these conclusions. Meanwhile, such conclusions of the court of first and subsequent instances do not follow from the actual circumstances of the case and the requirements of the law. The applicants' allegations about the official's inaction were not limited to assigning him the responsibility to establish special signs, but to monitor the activities of the entities that should establish them, as required by current legislation. Such powers of the state body in the field of sanitary and epidemiological surveillance and its officials are regulated not only by the framework of the Code "On the Health of the People and the Healthcare System" and Sanitary Rules approved by the Government, as noted by the court, but must also be ensured by other legislative norms, as well as international treaties ratified by the Republic of Kazakhstan. Article 18 of the Environmental Code lists special authorized State bodies and their competence in the field of environmental protection.

The burden of proving compliance with the law of the appealed decision of the committed action (inaction) falls on the official.

These include the authorized state body in the field of sanitary and epidemiological welfare of the population. Moreover, the said norm directly reflects that the competence of such bodies is established by the Land, Water and Forest Codes, as well as other laws. Article 121 of the Land Code defines sanitary protection zones of an industrial enterprise and protective forest zones adjacent to the right-of-way of railways and highways as zones with special conditions of use. According to paragraph 3 of this article, lands included in zones with special conditions of use are marked locally with special signs. Article 21 of the Code "On the Health of the People and the Healthcare System" stipulates the right of officials of the authorized body in the field of sanitary and epidemiological supervision to establish sanitary protection zones and change their size. These legal provisions were not taken into account by the local courts when considering the applicants' claims. The courts' reference to the applicants' lack of evidence of the defendant's documents reflecting the layout of their homes, enterprises that make up the industrial zone and the boundaries of the SPZ and sanitary gaps is unconvincing and cannot serve as a basis for rejecting the application. In accordance with the provisions of article 18 of the Constitution, government agencies and officials are required to ensure that every citizen has the opportunity to familiarize himself with documents, decisions and sources of information affecting his rights and interests. Within the meaning of article 4 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, public authorities are required to provide environmental information, including copies of documents containing such information, upon public request in accordance with the requirements of national legislation. In accordance with article 13 of the Environmental Code, individuals have the right to an environment favorable to their life and health, to take measures to protect and improve the environment, to contact government agencies with letters, complaints, statements and proposals on environmental issues and to request their consideration, as well as to receive from government agencies and organizations timely, complete and reliable environmental information. In this case, the applicants were not provided with comprehensive information on their appeals.  The court's reference to article 65 of the CPC regarding the need to provide evidence on the part of the applicants is unconvincing. In this regard, there is an explanation in the Normative Resolution of the Supreme Court of December 24, 2010 No. 20 "On certain issues of application by courts of the norms of Chapter 27 of the Code of Civil Procedure". Paragraph 24 of this Regulatory Resolution states that the head of a state body, a local government body participating in a court hearing and his representative, an official or a civil servant are required to prove compliance with the law of the appealed decision, the committed action (inaction). Thus, in cases of this category, it is the official, and not the applicant, who primarily bears the burden of proof. Based on the above, the supervisory Judicial Board for Civil and administrative Cases of the Supreme Court overturned the judicial acts issued in the case and made a new decision to satisfy the application. It was decided: to recognize inaction on the part of the head of the Department of the Committee for State Sanitary and Epidemiological Supervision of the Ministry of Health in the city of Almaty D. lack of control over the establishment and designation of sanitary protection zones with special signs on the ground. Assign it to D. the obligation to take measures to control the designation of sanitary protection zones of industrial enterprises on the ground with special signs and oblige applicants to provide relevant documents reflecting the location of their homes and the boundaries of sanitary protection zones. To collect court costs from D. in favor of the applicants in the amount of 1,618 tenge. 

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