Judicial Acts May Be Reviewed Due to New Circumstances

Pursuant to the grounds set forth in subparagraphs 1), 2), and 3) of part three of Article 455 of the Civil Procedure Code (CPC), judicial acts may be reviewed due to new circumstances. New circumstances are those that have arisen after the judicial act, subject to review, has entered into legal force.

According to subparagraph 1) of part three of Article 455 of the CPC, a new circumstance is a judicial decision that has entered into legal force, annulling a judicial act that established circumstances accepted without proof during the consideration of the given civil case, based on the provisions of parts two, three, four, and five of Article 76 of the CPC.

Pursuant to subparagraph 2) of part three of Article 455 of the CPC, a new circumstance is a final court decision recognizing a contested transaction as invalid and applying the consequences of its invalidity, as well as applying the consequences of the invalidity of a void transaction.

With regard to subparagraph 3) of part three of Article 455 of the CPC, a new circumstance is the final decision of the Constitutional Council of the Republic of Kazakhstan recognizing as unconstitutional the laws and other regulatory legal acts on the basis of which the judicial act was issued.

An application for the review of judicial acts that have entered into legal force due to newly discovered or new circumstances (hereinafter referred to as the application for review) may be filed only by the parties and other persons involved in the case or by the prosecutor.

The right to file an application for review also belongs to procedural successors of the persons involved in the case in accordance with Article 53 of the CPC.

Civil Case No. 6001-23-00-3g/44 dated January 16, 2023

Judge K.R.A. of the Judicial Panel for Civil Cases of the Supreme Court of the Republic of Kazakhstan, upon preliminary examination of the petition of the defendant A.L.P. for the review of the ruling of the Judicial Panel for Civil Cases of the Almaty Regional Court dated November 30, 2022, regarding the review, due to newly discovered circumstances, of the ruling of the Judicial Panel for Civil Cases of the Almaty Regional Court dated April 6, 2022, in the civil case brought by the State Institution "Apparatus of the Akim of Talgar City" of the Talgar District of the Almaty Region (hereinafter referred to as SI) against A.L.P., with third parties, the Talgar District Land Cadastre and Real Estate Department of the branch of the Non-Commercial Joint-Stock Company "Government for Citizens" for the Almaty Region (hereinafter referred to as the Government for Citizens), and S.I.G., seeking an obligation to vacate a public access passage, established the following:

By the decision of the Talgar District Court dated December 10, 2021, the claim was denied.

By the ruling of the Judicial Panel for Civil Cases of the Almaty Regional Court dated April 6, 2022, the court decision was overturned, and a new decision was rendered to satisfy the claim. A.L.P. was obliged to vacate a public access passage with an area of 0.0042 hectares, located on the southern side of the plot at the address: Talgar City, A..va Street, 8/1.

A.L.P. filed an application for the annulment of the appellate ruling due to newly discovered circumstances, arguing that according to responses from the SI "Department of Architecture and Urban Planning of the Talgar District" and the Government for Citizens, the authorized body lacked the instruments for conducting a topographic survey of the land plot, and therefore, the placement of the plot boundaries, as indicated in the state act on the topographic survey, was carried out by an architect from LLP "Saulet Talgar District." She also argued that land cadastre works had not been conducted, that the electronic land cadastre database contained erroneous information, that land survey works were conducted using a different instrument with a margin of error, and that subsequently, with the use of a high-precision instrument, the error was corrected. She claimed this to be a newly discovered circumstance.

By the ruling of the Judicial Panel for Civil Cases of the Almaty Regional Court dated November 30, 2022, the application was denied.

In the petition, the defendant A.L.P. requests the annulment of the judicial act, granting the application for newly discovered circumstances, arguing that the appellate court incorrectly determined and clarified the set of circumstances relevant to the case and misapplied the norms of the law.

Upon examining the arguments of the petition, the judge finds no grounds for reviewing the judicial act for the following reasons.

Pursuant to part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for reviewing judicial acts that have entered into legal force in cassation are significant violations of substantive and procedural law that led to the issuance of an unlawful judicial act.

No such violations were committed in the case.

Article 455 of the CPC provides an exhaustive list of grounds for the review of judicial acts due to newly discovered or new circumstances.

Pursuant to paragraph 7 of Regulatory Resolution No. 12 of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017, "On the Application by Courts of the Norms of the Civil Procedure Code of the Republic of Kazakhstan in Reviewing Judicial Acts Due to Newly Discovered or New Circumstances," newly discovered circumstances, in accordance with subparagraph 3) of part 2 of Article 455 of the CPC, are understood as the annulment in the manner prescribed by law of judicial acts or acts of another state authority, if they served as the basis for issuing a judicial act in a civil case.

Denying the application for the annulment of the ruling due to newly discovered circumstances, the appellate court correctly reasoned that the discovery of an error in the instrument used for the topographic survey of the land plot does not constitute a newly discovered or new circumstance that could affect the legality of the decision obliging the defendant to vacate the public access passage.

Thus, the circumstances cited by the applicant as newly discovered are not such.

Accordingly, the appellate court rightly denied the application for the review of the judicial act due to newly discovered circumstances.

Based on the foregoing, the contested judicial act raises no doubts as to its legality and fairness, and there are no grounds provided by law for its annulment.

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