LEGAL PROCEEDINGS
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SUMMARY OF JUDICIAL PRACTICE
of the Ecological Society Green Salvation in 2012


SECTION No.1

No.1
Case about acknowledgment of a legal act – “Rules of conducting of public hearings” –
to be contradictory to the laws of the Republic of Kazakhstan and the international agreement – Aarhus Convention (see the case No.3, 2011).

The lawsuit in the interests of an undetermined group of people is filed on February 2, 2011, to the Specialized Interregional Economic Court of the City of Astana.

Demands:

1. To acknowledge the “Rules of conducting of public hearings” adopted on May 7, 2007, by an order of the Minister of Environmental Protection of the Republic of Kazakhstan No.135-p, to be contradictory to the requirements of the Aarhus Convention, Environmental Code, and the law “About normative legal acts”, i.e. to be invalid in the full volume.

2. To require the Ministry of Justice of the Republic of Kazakhstan to cancel the registration of the “Rules of conducting of public hearings”.

On December 14, 2011, a petition against the decision of the Astana City Court which created obstacles for the case hearings, was filed to the Supreme Court.
On December 26, at the preliminary hearings of the petition, the Supreme Court refused to initiate a review proceeding, in violation of the p.3, Article 384 of the Civil procedural Code of the Republic of Kazakhstan.
On January 16, 2012, another petition is sent to the Supreme Court.
On January 21, the Supreme Court notified the Ecological Society Green Salvation (thereafter, ES) in written that the petition was left without a consideration, because the court did not find the determinations of the courts of the first and appeal instances to interfere with the further progress of the case.

The case was not accepted for a review.


No. 2
Case about inaction of the organs of public administration,
which caused formation of an illegal dump site in Panfilov village, Talgar District, Almaty Oblast
(see the case No.6, 2011).

The lawsuit in the interests of the residents of Panfilov village is filed on September 16, 2011, to the Court of the city of Talgar.

Demands:

1. To acknowledge the failure of the defendants – Akimat of the village and other authorized state organs – to fulfill their direct responsibilities in providing environmental and sanitary and epidemiological well-being of the residents of Panfilov village to be illegal, i.e. inaction.

2. To require the defendants to take immediate actions, in order to liquidate the dump site, demolish the abandoned buildings, and bring the land sites into a proper condition, in accordance with the legislation.

On November 7, 2011, the court made a decision to return the case, having misrepresented the demands of the plaintiff.
On  December 21, a private complaint is filed to the Almaty Oblast Court.
On February 1, 2012, the court made a determination to leave the complaint without satisfaction, saying that  the Ecological Society Green Salvation, supposedly, did not present a document confirming its right to protect interests of the citizens in court.
The judge did not get acquainted with the by-laws of the organization.

The case was not accepted for consideration.


No. 3
Case about discrimination of citizens of Almaty caused by inaction of the Akim of Almaty (see the case No.7, 2011).


The lawsuit in the interests of the residents of Almaty living on Bokeykhanov street, was filed to the Court of Bostandyk District of the city of Almaty on November 23, 2011.

Demands:

1. To acknowledge the failure of the Akim of Almaty to carry out his professional responsibilities, and also his failure to comply with the national and international agreements, which has lead to discrimination by a place of residence of the citizens living on Bokeykhanov street, city of Almaty, to be inaction.

2. To acknowledge the lack of control allowed by the Akim of the city of Almaty over the authorized organs who violated the national legislation which prohibits people from living in sanitary and protection zones of enterprises, in particular, the residents of Bokaykhanov street, Almaty, to be illegal inaction.

3. Following the paragraph 1 of the Article 282 of the CPC, to require Akim of the city of Almaty to liquidate the violations of the legislation in respect of the residents of Bokeykhanov street by their resettlement from the sanitary and protection zone and providing them with adequate dwelling, in accordance with the current legislation.

On November 25, 2011, the court made a determination about leaving the case without any further consideration, explaining it as if the paperwork had been prepared incorrectly.
On December 9, the court made a determination about returning the claim. The ES received it on December 23. 
On December 28, a private complaint on determination of the Bostandyk District Court and a statement about re-establishing the appeal period were submitted to the Almaty City Court. 
On January 27, 2012, the Bostandyk District Court made a decision about returning of the private complaint, because, supposedly, the appealing deadline had past and there was not any statement about re-establishing the appeal period.

The lawsuit was not accepted for consideration.


No. 4
Case about acknowledging of a normative legal act – “Rules of conducting of public hearings” –
to be contradictory to the laws of the Republic of Kazakhstan and international agreement – Aarhus Convention.


The lawsuit is filed on April 9, 2012, in the interests of residents of Bokeykhanov street, city of Almaty, to the Essil District Court of the City of Astana.

Demands:

1. To acknowledge the “Rules of conducting of public hearings”, signed on May 7, 2007, by a decree of the Minister of Environmental Protection, No.135-p, to be contradictory to the requirements of the Aarhus Convention, Environmental Code, and Law “About normative legal acts”, i.e. invalid in the full extent.

2. To oblige the Ministry of Justice to cancel registration of the “Rules of conducting of public hearings”.

On April 16, the court made a determination about leaving the lawsuit without consideration, supposedly, because of improper execution of the papers, in particular: because of a lack of an indication of a source where the Rules had been published.
On May 29, after the judge’s re-insight with the claim, the case was accepted for a legal proceeding.
On June 26, the court made a decision to refuse to satisfy the lawsuit demands, explaining it by a lack of a matter of dispute, because during the case proceedings, the Ministry introduced amendments to the Rules. These amendments did not eliminate contradictions between the “Rules of conducting of public hearings” and the Aarhus Convention.
On July 30, an appeal was submitted to the Astana City Court.
On September 17, the court agreed with the reasons of the court of the first instance and recognized the decision to be lawful.
On October 22, a cassation appeal was submitted to the Astana City Court.

On December 4, the cassation board acknowledged that:

- the Essyl District Court of the city of Astana did not consider the case within the ten-day period which was a violation of the p.2 article 284 of the Civil Procedural Code of the Republic of Kazakhstan;

- “conclusions of the court about the lack of a matter of dispute are baseless”;

- “the court did not review the matter about compliance of the indicated (in the claim – Editor’s note) provisions of the Rules with the requirements of the laws of the Republic of Kazakhstan in the essence”

The cassation board cancelled the decision of the Essyl District Court of the city of Astana and the statement of the appeal board of the Astana City Court, and sent the case for re-consideration to the court of the first instance with a different composition of the court.

The case remains open.


No. 5
Case about failure to provide environmental information by the Department of Land Relations and
the Department of Architecture and Urban Planning of Karasai district, Almaty oblast.

The lawsuit in the interests of the residents of the village Irgeli was filed on May 8, 2012, to the  Karasai District Court, Almaty oblast.

Demands:

1. To acknowledge actions of the Department of Land Relations and Department of Architecture and Urban Planning that did not provide the Ecological Society Green Salvation with the requested information to be inaction which violates rights and lawful interests of the legal person.

2. To require to provide the information, specifically: site plan, schematic map and documents with indication of water protection strips and zones of Aksai river with indication of borders of the land plots located in the immediate proximity of the river in Irgeli village.

On May 15, the court made a determination about returning the case, as if the process of the pre-judicial dispute resolution were not complied.
On June 11, the ES sent a request to the court regarding the court’s determination about returning of the lawsuit which had never been received by the ES.
The case materials were returned to the claimant only on July 26 after a representative of the organization addressed the chairman of the Karasai District Court, Almaty oblast.
On August 2, a private complaint was submitted to the Almaty Oblast Court.
On August 28, the court cancelled the determination of the Karasai District Court of Almaty oblast, and sent the case to the same court for re-consideration of the claim from the beginning point.
On September 11, based on the information received from the judge’s secretary, supposedly, there was a determination made to return the case because of lack of jurisdiction to this court.
On October 20, the case was returned to the claimant without the court’s determination about returning the case.
On November 2, a representative of the ES addressed the Chairman of the Court regarding the failure to provide the determination. The Chairman made arrangements to sent out the determination to the claimant.
On November 27, the determination was received.
Thus, in violation of the p.1 and 2, article 9 of the Aarhus Convention, the Karasai District Court impedes appealing to the court in the matters of failure to provide information and inaction of the state authorities. 
On December 4, an appeal is submitted to the Specialized Interregional Economic Court of Almaty Oblast.
On December 11, the court made a determination about returning the appeal, explaining that it had been submitted by an unauthorized person and that the court lacked a jurisdiction.

The determination indicates that the appeal was, supposedly, executed incorrectly, and lacked documents confirming the claimant’s demands. “From the content of the text of the appeal and its resolutive part, it is impossible to understand what the violations of the state authorities are”.

Besides, the determination indicated that the ES – is a public organization, which purpose is to “facilitate improvement of social and economic (in the Charter – “social and ecological” – editor’s note) situation of the Republic of Kazakhstan. Territory of activity was determined as the city of Almaty. … The claimant litigates the actions of the state authorities of the Almaty oblast, not the city of Almaty”.

The court discriminates the ES violating the p.9, article 3 of the Aarhus Convention which states: “Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.”

On December 24,  private complaint was submitted to the Almaty Oblast Court.

The case remains open.


No. 6
Case about failure to provide environmental information
by the Department of the Committee of the State Sanitary and Epidemiological Control
of the Ministry of Health in the city of Almaty.

The lawsuit in the interests of the residents of Bokeykhanov street is filed on June 6, 2012, to the Specialized Interregional Economic Court of the City of Almaty.

Demands:

1. To acknowledge the actions of the Department that did not provide the requested information to the Ecological Society Green Salvation to be inaction which violates rights and lawful interests of the juridical person.

2. To require the Department to provide the information, specifically: a copy of the project of reduction of the sanitary and protection zone (SPZ) for the enterprise “Tsentrobeton” Ltd.; a document justifying alteration of the category of sanitary threat of the enterprise; a copy of the minutes of public hearings on the project of reduction of the SPZ for the enterprises including a list of the participants.

On June 13, the court made a determination about returning of the case objecting the court’s jurisdiction.

On June 25, a private complaint was filed to the Almaty City Court.

On July 17, in violation of the paragraph 1, article 280 of the Civil Procedural Code of the Republic of Kazakhstan, the court returned the private complaint, as if the determination’s appealing period had passed.

On July 30, a request to accept the complaint for a review was sent to the chairman of the Almaty City Court.

On August 10, the chairman of the Almaty City Court informed that he did not find any violations of the procedural norms by the judge.

On September 10, a letter was sent to the chairman of the Supreme Court requesting to review the claim of the Ecological Society Green Salvation and to oblige the chairman of the Almaty City Court to consider the claim of the citizens per se.

On September 26, the letter of the ES sent to the Supreme Court was answered by the chairman of the Almaty City Court. The answer said that the judges did not commit any procedural violations.

Manipulating with the provisions of the Civil Procedural Code of the Republic of Kazakhstan, the court did not accept the claim for consideration, in violation of the p. 1 and 2, article 9 of the Aarhus Convention, which created obstacles to access justice in the matter of providing information and failure to act by the public authorities.

The case was not accepted for consideration.


No. 7
Case about failure to act by authorities which led to formation of an illegal dumpster
in Panfilov village, Talgar district, Almaty oblast
(see the case No.2, 2012).

Lawsuit in the interests of the residents of Panfilov village is filed on June 19, 2012, to the Court of the city of Talgar.

Demands:

1. To acknowledge failure to perform their direct responsibilities, in compliance with the current legislation on providing environmental and sanitary and epidemiological welfare of Panfilov village, by the authorities, specifically: akim (mayor) of Panfilov village of Talgar district, Almaty oblast, akim of Talgar district of Almaty oblast, head of Panfilov’s police department, to be illegal, i.e. inaction.

2. To require the authorities in the limits of their powers to take immediate actions to normalize the environmental and sanitary and epidemiological conditions in the village.

On June 29, the court made a determination about leaving the case without a progress, as if the papers were improperly executed. In violation of the p.1, article 222 of the Civil Procedural Code of the Republic of Kazakhstan, the court indicated that “the court does not have a right to instruct a state authority to make a specific action”. On July 17, the claim was re-submitted to the Talgar City Court without any changes in the demands.

On August 6, the case hearings began.

On August 28, the court made a decision to partially satisfy the demands. The decision admitted the fact of failure to act by the akim (mayor) of Panfilov village of Talgar district. It was indicated that he must take measures to restore the normal ecological and sanitary and epidemiological conditions in the village.

In the end of September, the akim of Panfilov village submitted an appeal to the Almaty Oblast Court, claiming that the court, supposedly, accepted the claim of the ES illegally and without a basis, because the citizens were not members of the ES.


On October 30, the appeal board of the Almaty Oblast Court denied satisfying the akim’s claim leaving the court’s decision without any changes. The defendant has a right to appeal against the decision during a six months period.

The court’s decision came in force.

The court’s decision is not being implemented.


No. 8
Case about failure to act by the akim of Almaty which led to discrimination
of the citizens residing on Bokeykhanov street, city of Almaty (see the case No.3, 2012).

Lawsuit in the interests of the residents of Bokeykhanov street is filed on June 26, 2012, to the Court of Zhetysu district, city of Almaty.

Demands:

1. To acknowledge the failure of the akim of Almaty to perform his administrative duties in implementation of the General Plan

of the city development, and also his incompliance with the Constitution, requirements of the Environmental Code, Law “About architectural, urban planning, and civil engineering activity in the Republic of Kazakhstan”, international agreement – Aarhus Convention, International Pact about civil and political rights and other international agreements, which led to discrimination of the residents of Bokeykhanov street based on their place of residence and other circumstances, to be illegal, i.e. inaction.

2. To acknowledge the failure of the akim of Zhetysu district of the city of Almaty to perform his administrative duties during capital repairs of Bokeykhanov street which led to discrimination of the residents based on their place of residents and other circumstances, to be illegal, i.e. inaction.

3. To require the akim of the city of Almaty to eliminate the violations of the Constitution by resettling the people from the limits of a sanitary and protection zone and providing them with adequate housing, in accordance with the current legislation.

Court hearings on the case started on July 23.

On September 5, after several court hearings, the court denied satisfying the demands, as if no violations of law or citizens’ rights were committed by the executive authorities.
On October 3, 28 days after the decision was made and after several complaints on the actions of the judge, the decision was received.
On October 15, an appeal was submitted to the Almaty City Court.
On December 20, the appeal board of the Almaty City Court denied satisfying the claim.

The case remains open.


No.9
Case about failure to act by the director of the Department of the Committee
of the State Sanitary and Epidemiological Control of the city of Almaty (DCSSEC)
which was expressed in a lack of control over marking of sanitary and protection zones by special signs in the area.

The lawsuit in the interests of the citizens residing on Bokeikhanov Street is submitted on October 17, 2012, to the Medeu

District Court of the city of Almaty.

Demands:

1. To acknowledge the failure to act by the authority – director of the Department  – the failure to implement the sanitary and epidemiological control over establishing and marking of sanitary and protection zones and gaps by special signs on the area.

2. To oblige the authority – director of the Department – take measures to implement the norms of the Land Code, in the part of control over marking up territory with special signs which indicate sanitary and protection zones and gaps.

On October 22, the court made a determination about leaving the case without a progress, as if the papers were improperly executed, in particular: “It was not indicated based on which normative legal acts the director of the department of the CSSEC must mark up the territory with special signs indicating sanitary and protection zones and gaps”.
On October 31, a reply about unlawfulness of leaving the case without a progress was sent to the court.
On November 14, the court hearings on the case began.
From December 5 to 26, several court hearings took place.

The case remains open.


SECTION No.2
Implementation of court decisions


“Court decisions which came into legal force … are obligatory for all state authorities, organs of local self-administration, public associations, other juridical persons, officials, and citizens without any exceptions, and are subjected to a strict implementation over the whole territory of the Republic of Kazakhstan”, p.2, article 21, Civil Procedural Code of the Republic of Kazakhstan.

No. 1
Decision of the Specialized Interregional Economic Court of the City of Almaty dated on September 10, 2007, “About inaction of the state authorities which lead to formation of an illegal dump site” (See the case No.7, 2007).
Not implemented.

No.2
Decision of the Specialized Interregional Economic Court of the City of Astana dated on July 1, 2010, “About inaction of the government of the Republic of Kazakhstan and about acknowledging the conclusion of the Senior Sanitary Inspector about reduction of the sanitary and protection zone to be invalid” (See the case No.1, 2010).
Not implemented.

No.3
Decision of the Talgar City Court dated on August 28, 2012, “About inaction of authorities which lead to formation of an illegal dump site in Panfilov village, Talgar District, Almaty oblast (See the case No.7, 2012).
Not implemented.



Rights and legal interests of the Ecological Society “Green Salvation” are defended in court by lawyer Svetlana Philippovna Katorcha.

Translated by Sofya Tairova.


      





See also Green Salvation Heralds devoted to accomplishing the organization’s primary mission: defending the right of Kazakhstan’s citizens to a healthy environment.