The use of procedural coercion measures in the event of a violation of the norms of procedural legislation.
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 does not
performing 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 the 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 connecting online) at a court hearing without a valid reason.
Analyzing the monetary penalties imposed on the CSI, it should be noted that monetary penalties were also imposed for non-compliance with the court decision.
In case No. 5194-23-00-4/546, a court decision imposed on the CSU the obligation to recalculate the alimony arrears within 5 days from the date of entry into force of the decision (August 28, 2023).
The decision was not executed until October 3, 2023, which served as the basis for the court to apply a measure of procedural coercion.
A notice was sent to the defendant, and as part of a separate hearing, the court imposed a fine of 50 MCI (172,500 tenge) on the defendant.
After the imposition of a monetary penalty, the CHSI executed the court's decision: the debt was determined in the amount of 608,860 tenge.
The example reflects the effective application of coercive measures to ensure the timely execution of a judicial act, while observing the procedure for procedural impact and implementing the principle of the inevitability of responsibility.
Another example, by a ruling of the SMAS of Almaty dated December 12, 2024, the court ordered CHSI Estenov D. to submit a written response to the claim, prepared and executed in accordance with the requirements of Article 166 of the CPC, a scanned copy of the enforcement proceedings by December 17, 2024.
At the same time, the court clarified that failure to submit the recall and the requested documents within the time limit set by the judge may be the basis for applying a monetary penalty under the rules of Article 127 of the CPC in the amount of up to 20 monthly calculation indices and does not prevent the consideration of the administrative case on the merits.
The defendant did not execute the court ruling of December 12, 2024 on time. It was not until January 16, 2025, after repeated reminders, that the defendant submitted a response to the claim and copies of the enforcement proceedings.
The preparation of the case for the preliminary hearing was scheduled for
On December 18, 2024, at 15-20 o'clock, a preliminary hearing in the case was scheduled for January 10, 2025 at 12:00 p.m. However, the defendant, CHSI Estenov D.Zh., did not ensure his participation and did not submit a review and materials of the enforcement proceedings within the time limit set by the court.
The defendant also did not ensure his participation in the court hearing scheduled for January 16, 2025 at 10:00 a.m. By his actions, the private bailiff prevented the consideration of the case on the merits.
Taking into account the facts of the defendant's failure to fulfill his procedural obligations to comply with the requirements of the court, the court applied procedural coercion measures provided for in Article 123 of the CPC to the private bailiff, D.J. Estenov, since his actions indicate clear disrespect for the court.
The ruling has entered into legal force, and the ruling has been enforced by referral for execution.
As an example of positive practice, the activities of the SMAS and the SCAD of the Kostanay Regional Court can be noted.
During the generalized period, the SMAS of the Kostanay Regional Court issued a total of 14 rulings on the imposition of monetary penalties on bailiffs, which were executed in full (2023 - 8, 2024 - 6, 1st half of 2025 - 0) for a total amount of 1,278,300 tenge (2023 - 724,500 tenge, 2024 -
553,800 tenge).
For example, monetary penalties in the amount of 20 MCI - 69,000 tenge were imposed for failure to provide a response to the claim against CHSI Abildinova T.A. (3994- 23-00-4/436 ) and in the amount of 20 MCI - 69,000 tenge in case 3994-23-00-4/732.
Similarly: on business №№ 3994-24-00-4/474, 3994-24-00-4/609.
For non-fulfillment of the court's decision, a monetary penalty of 50 MCI - 172,500 tenge was imposed on CHSI Abildinova T.A. in the case.
№3994-23-00-4/181.
Similarly, in case No. 3994-23-00-4/717.
For failure to comply with the requirement, the court's request, and the failure of a person to appear in court, the defendant, CHSI Nysanov Zh.S., was fined 20 MCI ‑ 69,000 tenge (case No. 3994-23-00-4/717).
For failure to provide information within the prescribed period, at the request of the court, a monetary penalty was imposed on CHSI Akanov A.S. in the amount of 20 MCI - 69,000 tenge (case No. 3994-23-00-4/1002).
Similarly in case No. 3994-24-00-4/545.
Formulation of requirements
When filing an administrative claim to appeal against the actions (inaction) of bailiffs, the plaintiffs state the claims in various versions.
Basically, disputes in the generalized category are dealt with by filing claims for challenge, coercion, and commission of actions (Articles 132-134 of the CPC).
By virtue of article 132 of the CPC, if an encumbering administrative act violates the rights, freedoms and legitimate interests of the plaintiff, he has the right to file a challenge claim demanding that the administrative act be revoked in full or in any part thereof.
In case of disagreement with the decision issued by the bailiff, the demands are made to declare this decision illegal. Simultaneous filing of a claim for recognition of actions as illegal is not required.
In accordance with part 2 of Article 84 of the CPC, an illegal administrative act may be repealed in whole or in part.
If the decision is declared illegal, the court cancels the said decision.
Claim refund
Part 2 of Article 138 of the CPC provides 17 grounds for the return of an administrative claim.
Cases in this category are most often returned for the following reasons:
subclause 6) of part 2 of Article 138 of the APPC - the plaintiff withdrew the filed claim;
9) of part 2 of Article 138 of the CPC - the parties have concluded an agreement on reconciliation, mediation or dispute settlement through a participatory procedure, and it has been approved by the court;
11) of part 2 of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings;
17) of part 2 of Article 138 of the CPC - the case is beyond the jurisdiction of this court.
Also, the basis for returning a claim is provided for in part 8 of Article 136 of the CPC, according to which skipping the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
The courts do not have any difficulties in resolving the issue of the return of claims in the analyzed category.
At the same time, the implementation of the principle of the active role of the court has significantly increased the number of cases resolved peacefully (concluding an agreement or withdrawing a claim).
The time limit for appealing a court decision
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 the participants of the opportunity to familiarize themselves with the motivational part of the process 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 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 exempted, 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:
· APPK - 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";
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
