LEGAL PROCEEDINGS
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SUMMARY OF JUDICIAL PRACTICE
of the Ecological Society Green Salvation in 2013


SECTION No.1


No. 1
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 (See the case No.4, 2012).

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 Astana City. 

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 December 4, 2012, the cassation board acknowledged that:
- the Essyl District Court of Astana City 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 RoK;
- “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 RoK in the essence”
The cassation board cancelled the decision of the Essyl District Court of Astana City 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.
On February 5, 2013, court hearings took place in the Essyl District Court of Astana City. The court denied in satisfaction of the lawsuit demands allowing a loose interpretation of the Aarhus Convention, in violation of the Articles 11, 26, 27, 31, and 32 of the Vienna Convention on the Law of Treaties which was joined by Kazakhstan on March 31, 1993.
On February 18, an appeal to the decision of the Essyl District Court of Astana City was filed to the appeal board of the Astana City Court.
On February 28, the prosecutor of Essyl District issued a protest against the decision of the court. The prosecutor asked the board to satisfy the claimant’s demands, as the judge violated material and procedural law when taking the decision.
On March 12, the appeal’s review was postponed, as the defendants’ representatives and the prosecutor were not prepared. As a result, the claimant sustained additional court expenses (travel costs to the board hearings in Astana and back).
On March 19, the appeal board of the Astana City court denied satisfying the claim without taking into consideration the conclusions of the cassation board dated on December 4, 2012, and without satisfying the protest of the prosecutor of the Essyl District.
On June 27, a cassation appeal on the determination of the appeal board was sent to the Astana City Court.
On July 18, the appeal was returned without consideration as if a fifteen-day period of time for it to be filed was missed.
On July 29, claimants submitted a petition to the Civil Affairs Review Board of the Supreme Court about cancellation of the decision of the Yessil District Court of the city of Astana and the determination of the Appeal Board of the Astana City Court.
On August 22, the Review Board made a determination that the Astana City Court returned the cassation appeal to the claimants without a basis, as the court did not take into consideration amendments introduced to the Civil Procedural Code on February 17, 2012.
On September 6, the second cassation appeal on the decision of the Yessil District Court of the city of Astana and the determination of the Appeal Board of the Astana City Court is filed to the Astana City Court.
On October 22, the Cassation Board refused to satisfy the appeal for the second time, as if because of “lack of necessary proofs” and “incorrect understanding of the legislative norms”.
On November 7, the claimants filed a petition to the Supreme Court Review Board on Civil Affaires to appeal the determination of the Cassation Board of the Astana City Court.
On December 23, at a preliminary meeting, the Review Board of the Supreme Court took a decision about initiation of a review process.

The case remains open.


No. 2
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
(See the case No.5, 2012).

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 juridical 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 December 24, 2012, a private complaint was submitted to the Almaty Oblast Court.
On February 12, the appeal board cancelled the determination of the Specialized Interregional Economic Court (SIEC) of Almaty oblast dated on December 11, 2012, and sent the case to the same court to be reviewed starting from the point of acceptance to the proceeding.
On February 25, the case hearings in the SIEC of Almaty oblast failed as the defendants did not show up.
On March 27, the SIEC of Almaty oblast made a decision in absentia about satisfaction of the claimant’s demands. 
On April 17, based on the statement of the Head of the Department of Architecture and Urban Development about cancellation of the decision in absentia dated on March 27, the court cancelled it and re-started reviewing the case.
On March 16, for the second time, the SIEC made a decision about satisfaction of the claimant’s demands. The court admitted that the actions of the Department of Land Relations and Department of Architecture and Urban Development were illegal and obliged them to provide the information.
On June 10, the court decision came into a legal force.

The case is closed (see below: Implementation of court decisions).



No. 3
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.8, 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 protection zone and providing them with adequate housing, in accordance with the current legislation.

On December 20, 2012, the appeal board of the Almaty City Court denied satisfying the claim.
On March 15, 2013, a cassation appeal was filed to the Almaty City Court.
On April 5, the cassation board of the Almaty City Court denied satisfying the claim.
During the hearings, the Head of the board (alias Head of the Almaty City Court) allowed himself unethical expressions towards the claimants. In this regard, on April 15, a claim was filed to the Court Ethics Commission of the branch office of the Supreme Court’s Union of Judges. The later forwarded the claim to the Court Ethics Commission of the Almaty City Court. This is a violation of the sub-paragraph 2, paragraph 2, article 15 of the Law “About Administrative procedures” and sub-paragraph 6, paragraph 2, article 15 of the Law “About the order of reviewing statements from natural and legal persons”. On April 25, the Court Ethics Commission of the Almaty City Court reviewed the claim but did not find any violations of the norms of the Court Ethics Code.
On June 14, a petition against the determination of the Cassation Board of the Almaty City Court was filed to the Civil Affaires Review Board of the Supreme Court.
On June 26, the Supreme Court returned the petition because originals of power of attorneys were not presented.
On July 22, the petition was filed to the Supreme Court for the second time.
On September 12, the Review Board denied to initiate a review procedure because, in the judges’ opinion, there was no basis to review the court acts.
The claimants’ demands are left without satisfaction.
The case is closed.



No.4
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 protection zones by special signs in the area
(See the case No.9, 2012).

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  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 protection zones and gaps.

From December 5 to 26, 2012, several court hearings took place.
On December 26, 2012, the court made a decision to deny in satisfaction of the claimants’ demands.
On January 25, a claim against the decision of the judge of Medeu District Court of Almaty City dated on December 26, 2012, was filed to the appeal board of the Almaty City Court.
On March 1, the claim review was postponed, as the defendant’s representative was not ready.
On March 18, the appeal board of Almaty City Court denied satisfying the claim.
During review of the claim, the judges agreed with the conclusions of the judge of the district court, who:
- in violation of the article 192 of the Civil Procedural Code of the RK, did not review the case in its essence;
- exceeded the case demands, in violation of the paragraph 2, article 219 of the Civil Procedural Code of the RK, by reviewing matters not agreed by the claimants, and did not determine an appropriate defendant, in violation of the paragraph 3, article 170 of the Civil Procedural Code of the RK;
- ignored the fact that, in violation of the paragraph 4, article 165 of the Environmental Code of the RK and paragraph 5, article 4 of the Aarhus Convention, the defendant did not present information about a state organ which controls the process of marking the territory with signs of sanitary protection zones and gaps.
On May 30, a cassation appeal was filed to the Almaty City Court.
On July 2, the Cassation Board of the Almaty City Court denied in satisfaction of the claim. The claimants sent a petition about objection of the Head of the board (alias Head of the Almaty City Court) because of his unethical expressions towards them during consideration of a cassation appeal for another case. The petition about objection was not satisfied.
Prosecutor, who was present at the hearings, did not protest the above mentioned violations of the procedural and material law.
On August 8, the claimants filed a petition against the determination of the cassation board of the Almaty City Court to the Civil Affaires Review Board of the Supreme Court.
On September 5, the Review Board began reviewing the claim, but because of the complexity of the matter decided to request all materials on the case for studying.
On October 24, at the preliminary hearings, the Review Board of the Supreme Court decided to initiate a review procedure.
On November 27, the Review Board made a determination:
- the decision of the Medeu District Court of the city of Almaty dated on December 26, 2012, ruling of the Appeal Court Board on Civil and Administrative Affaires of the Almaty City Court dated on March 18, 2013, and ruling of the Cassation Court Board of the Almaty City Court dated on July 2, 2013 on this case are to be cancelled and a new decision about satisfaction of the lawsuit shall be adopted;
- to acknowledge the lack of control over establishing and marking of sanitary and protection zones with special signs on-site by the head of the Department of the Committee of the State Sanitary and Epidemiological Control of the Ministry of Public Health of the Republic of Kazakhstan in the city of Almaty to be inaction;
- to oblige the head of the Department to take control measures over marking of the sanitary and protection zones of the industrial enterprises with special signs on-site, and require to provide the claimants with corresponding documents reflecting location of their houses and borders of the sanitary and protection zones.

The case is closed. (See below: Implementation of court decisions).



No. 5
Case about a failure to act by the Ministry of Environmental Protection and vice-minister of Environmental Protection about failure to comply with their responsibilities of efficient utilization of the state property for the public good and responsibilities to conduct control over integrity of the property of the Republic’s legal person – Ile-Alatau State National Natural Park.


The lawsuit in the public interests was filed on June 3, 2013, to the Specialized Interregional Economic Court (SIEC) of the City of Astana.

Demands:
1. To acknowledge failure of the Ministry of Environmental Protection to comply with its direct responsibilities of efficient utilization of the state property for the public good and to conduct control over integrity of the property of the Republic’s legal person – Ile-Alatau State National Natural Park, to be inaction.
2. To acknowledge failure of the vice-minister of Environmental Protection to comply with its direct responsibilities of efficient utilization of the state property for the public good and to conduct control over integrity of the property of the Republic’s legal person – Ile-Alatau State National Natural Park, to be inaction.
3. To oblige the Ministry of Environmental Protection to undertake measures to prevent construction of the new mountain ski resort “Kokzhailau” on the territory of the national park, in order to efficiently utilize the state property for the public good.

On July 5, the statement was returned as if of lack of jurisdiction to this court.
On July 22, after several amendments to the statement were made, it was filed to the SIEC of the city of Astana again.
On July 30, the statement was returned again, as if of lack of jurisdiction to this court.
On August 14, the case is submitted to the Yessil District court of the city of Astana.
On August 26, the case is left without a movement till September 9, as if the paperwork was done incorrectly: it was not indicated which actions were disputed, which rights and freedoms of the claimant were violated, and the fee was not paid.
The determination dated on August 26 was sent from Astana on September 3, arrived to the city of Almaty on September 9. Of course, the claimant could not meet all the requirements before the indicated date, without being informed in time. Despite of that, the statement was returned to the claimant.
On September 10, the judge of the Yessil District Court made a determination about leaving the case without consideration and about returning it to the claimant.
On September 11, a representative of the ES, who was in Astana at that time, asked the judge’s secretary for the determination and the case materials. The secretary replied that the determination had not been signed by the judge yet, and that the materials would be sent right after its signing.
On October 17, after numerous persistent demands of the claimant to return the statement and the case materials, they were sent to the claimant and received on October 21.  As a result of violation of the norms of the Civil Procedural Code by the court officials, the period of appeal  of the determination dated on September 10 had past.
On October 28, a private complaint over actions of the judge of the Yessil District Court is sent to the Head of the Civil Affaires Appeal Board of the city of Astana. The ES asked to renew the period of appeal of the determination dated on September 10 and to cancel it as illegally made.
On December 10, the Appeal Board refused to satisfy the private complaint, as if the ES unjustly did not pay the state fees and did not provide documents proving the facts presented in the statement.
The Appeal Board did not take into consideration the question of the ES about violation of the norms of the Civil Procedural Code by the court staff, as a result of which the deadline for appealing the determination dated on September 10 was missed.

The case remains open.


No. 6
Case about acknowledging of the conclusion of the state environmental assessment - preliminary Environmental Impact Assessment of the project of mountain ski resort “Kokzhailau” - to be invalid.


The lawsuit in public interests was filed on October 7, 2013, to the Specialized Interregional Economic Court of the City of Almaty.

Demand:

To acknowledge the conclusion of the state environmental assessment of the preliminary Environmental Impact Assessment of the feasibility study of the project of mountain ski resort “Kokzhailau” dated on April 13, 2013, conducted by the Department of Natural Resources and Nature Management Regulation of the City of Almaty - to be invalid.

On November 11, a court hearings took place.
From November 15 to 25, several court hearings took place.
On November 25, the court denied satisfying the claimants’ demands. The court adopted the decision without justifying it.
On December 12, an appeal against the decision of the SIEC is filed to the Almaty City Court.

The case remains open.


No.7
Case about acknowledging the conclusion of the state environmental assessment to be invalid and about stopping the enterprise’s activity.


The lawsuit in the interest of residents of Velikolukskaya street is filed on November 4, 2013, to the Specialized Interregional Court of the City of Almaty.

Demands:

1. To acknowledge the conclusion of the state environmental assessment on the project -“Environmental Impact Assessment” of a production workshop for manufacturing of external advertisement - to be invalid.
2. To oblige the Department of Natural Resources and Nature Management Regulation of the City of Almaty to recall the issued conclusion and to ban the enterprise’s activity which causes a negative impact on the environment and the residents’ health.

On November 8, the SIEC declined the lawsuit explaining it by a lack of jurisdiction.
On November 21, the lawsuit is submitted to the Medeu District Court of the city of Almaty.
On December 30, 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 RoK.


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  protection zone to be invalid” (See the case No.1, 2010).
Due to the fact that the defendants refused to follow the court’s decision at their own will, the claimant submitted an act of execution for a forced implementation of the decision. But neither the department of court executors, nor the Prosecutor’s Office take any efficient measures.
On August 28, 2013, an act of execution was re-submitted to the Head of the Department of Court Acts Execution of the West Kazakhstan oblast.
On October 24, a letter about inaction of the Department of Court Acts Execution of the West Kazakhstan oblast was sent to the Court Acts Execution Committee of the Ministry of Justice.
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.


No. 4
Decision of the SIEC of Almaty oblast dated on May 16, 2013, on the lawsuit about failure to provide environmental information by the Department of Land Relations and Department of Architecture and Urban Development of Karasai district of Almaty oblast. (See the case No.2, 2013).
On September 2, a letter with a request to implement the court decision and inform about its implementation within the period of time identified by the law was sent to the Head of the Department of Court Acts Execution of Karasai District.
Not implemented.


No.5
A ruling of the Review Board of the Supreme Court on the lawsuit about inaction of the director of the Department of the Committee of the State Sanitary and Epidemiological Control in the city of Almaty which expressed in a lack of control over marking of sanitary and protection zones with special signs on-site was adopted on November 27, 2013. (See the case No.9, 2012, and case No.4, 2013).



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.