LEGAL PROCEEDINGS
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SUMMARY OF JUDICIAL PRACTICE
of the Ecological Society Green Salvation in 2014


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 and case No.1, 2013).

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 December 23, 2013, at a preliminary meeting, the Review Board of the Supreme Court took a decision about initiation of a review process.
On February 4, 2014, the Board made a statement about leaving the petition without satisfaction. The Board did not find any violation of material and procedural law. The Board came to a conclusion that the Rules were brought to conformance with the requirements of the Aarhus Convention. It was not taken into consideration that the amendments were introduced into the Rules only after the public addressed the court, and that some of the amendments were offered by the claimants. The judges were not embarrassed by the fact that in December 2013, in its National Report about implementation of the Aarhus Convention prepared for the Fifth Meeting of the Parties of the Convention, the Ministry of Environment and Water Resources admitted that the new edition of the Rules “does not exclude a possibility of conducting of public hearings as a mere formality without a comprehensive accountability of all possible consequences of planned economic activity, i.e. basic principles of the EIA”.

The case is closed.


No. 2
Case about inaction of the Ministry of Environment and Water Resources expressed in a failure to comply with their responsibilities of efficient utilization of the state property for the public’s good and responsibilities to conduct control over integrity of the property of the Republic’s juridical person – Ile-Alatau State National Natural Park (See the case No.05, 2013).

The lawsuit in the public’s interests was filed by the Ecological Society Green Salvation (ES) on June 3, 2013, to the Specialized Inter-regional 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 juridical person – Ile-Alatau State National Natural Park, to be inaction.
2. To acknowledge failure of the vice-minister of Environmental Protection, Iskakov Marlen Nurakhmetovich, 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 juridical 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 December 10, 2013 the Appeal Board refused to satisfy the private complaint, as the ES did not pay the state fees and as if 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.
On January 15, 2014, the lawsuit is filed for the second time to the Yessil District Court of the city of Astana.
On January 27, the case was returned for the second time as if of a lack of jurisdiction.
On February 12, a statement with a request to determine jurisdiction was submitted to the Court of the city of Astana.
On February 20, the court did not determine the jurisdiction, but offered the claimants to appeal the determination of the Yessil District Court of the city of Astana dated on January 27, 2014.
On March 19, the lawsuit is filed for the third time to the Yessil District Court of the city of Astana.
On March 31, the lawsuit is returned for the third time, as if of a lack of jurisdiction.
On April 25, a private complaint over the determination of the judge of the Yessil District Court is filed to the Appeal Board of the Court of the city of Astana.

The case remains open.


No. 3
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 (See the case No.06, 2013).

The lawsuit in public interests was filed on October 7, 2013, to the Specialized Inter-regional Economic Court (SIEC) 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 December 12, 2013, an appeal against the decision of the SIEC is filed to the Almaty City Court.
According to the Civil Procedural Code (CPC) of the RK, an appeal shall be filed within 15 days after receiving a decision. Having received an appeal, a judge must, no later than the next day, forward copies of the appeal to the persons participating in the case. After a deadline for appealing has passed, the judge must forward the case to the Appeal Board, while notifying in an appropriate manner the persons participating in the case about place and time of the case review in the appeal instance.
But after the specified deadline has passed, the ES did not receive a notification about forwarding the case with the appeal to the Almaty City Court. Chancellery of the Court did not receive the appeal from the SIEC neither in December 2013, nor in January 2014! The judge of the SIEC simply “forgot” to send the appeal by its destination!
On January 31, 2014, a claim was submitted to the chairman of the Almaty City Court. The claim particularly states that violations of requirements of the CPC became systematic. Very often, staff of court chancelleries and secretaries of judges do not notify claimants about schedules of court hearings, do not timely send them court decisions, statements, and determinations. Legal proceedings would drag for months. All of these lead to a negative people’s attitude towards the work of courts, not to mention mistrust to decisions and statements adopted by the judges.
On March 5, by a statement from the defendant, the review process of the appeal was postponed.
On March 18, the Appeal Board of the Almaty City Court refused to satisfy the claim.
During review of the claim, the judge grossly violated norms of the material law and agreed with the conclusions of the district court:
- practically, did not consider carefully the subject reviewed;
- allowed random interpretation of the legislation;
- repeated mistakes of the court of the first instance during review of the question about authority of local power officials.
On June 5, an appeal is filed to the Cassation Board of the Almaty City Court.
The case remains open.



No.4
Case about acknowledging the conclusion of the state environmental assessment to be invalid and about stopping the enterprise’s activity
(See case No.07, 2013).

The lawsuit in the interest of residents of Velikolukskaya street is filed on November 4, 2013, to the Specialized Inter-regional Economic Court (SIEC) 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.
From December 30, 2013, to January 28, 2014, several court hearings took place.
On February 3, 2014, because the judge accepted the case which is outside of jurisdiction of the court, the judge made a determination about leaving the case without consideration.
On March 20, the lawsuit is filed to Bostandyk District Court of the city of Almaty.
On March 28, the court made a determination to leave the case without a movement, as if the lawsuit was made incorrectly.
On April 10, the lawsuit is filed for the second time to the Bostandyk District Court of the city of Almaty.
From April 22 to June 4, several court hearings took place.
On June 18, the court refused to satisfy the lawsuit demands. The judge allowed a random interpretation of the requirements of the Environmental Code regarding conducting of public hearings, ignored the conclusions of the mayor’s office about violations taken place during the public hearings. At the same time, the court admitted that the entrepreneur violates rights of the citizens living in the direct vicinity of the enterprise, and acknowledged the inaction of the “sanitary service” which does not undertake appropriate measures. The later received a private determination.
On June 26, an appeal is submitted to the Appeal Board of the Almaty City Court.

The case remains open.



No.5
Case about acknowledging a conclusion of the state environmental assessment to be invalid and ceasing the enterprise’s activity.


The statement in the interests of the residents of Bokeykhanov street is filed to the Bostandyk District Court on March 26, 2014.

Demands:
1. To acknowledge the conclusion of the state environmental assessment dated on 28.10.2013 on the project “Environmental impact assessment” for an oil change facility located in the city of Almaty on Bokeykhanov street, issued by the municipal state enterprise (MSE) “Department of Natural Resources and Nature Utilization Regulation of the city of Almaty” to be invalid.
2. To oblige the MSE “Department of Natural Resources and Nature Utilization Regulation of the city of Almaty” to recall the issued conclusion and ban the oil change facility’s activity, which has a negative effect on the environment and the residents’ health.
On March 31, the court issued a determination about leaving the case without a movement, as if the lawsuit papers were made incorrectly.
On April 4, due to the fact that the case was left without consideration, a letter was sent to the chairman of the Bostandyk District Court.
From May 13 to 29, several court hearings took place.
On June 4, the court refused to satisfy the lawsuit demands. The judge allowed a random interpretation of the requirements of the Environmental Code regarding the processes of conducting of public hearings and environmental assessment.
On June 17, an appeal is filed to the Appeal Board of the Almaty City Court.

The case remains open.


No.6
Case about acknowledging public hearings and protocol of the hearings regarding materials of feasibility study of allocation of lands of a specially protected natural territory Ile-Alatau State Natural Park into lands of reserve for construction of a mountain ski resort “Kokzhailau” to be invalid.


The lawsuit in the interests of residents of the city of Almaty is filed to the Medeu District Court of the city of Almaty on April 2, 2014.

Demands:
1. To acknowledge public hearings regarding materials of feasibility study of allocation of lands of a specially protected natural territory Ile-Alatau State Natural Park into lands of reserve for construction of a mountain ski resort “Kokzhailau” to be illegal, and therefore, invalid.
2. To acknowledge the protocol of the public hearings regarding materials of feasibility study of allocation of lands of a specially protected natural territory Ile-Alatau State Natural Park into lands of reserve for construction of a mountain ski resort “Kokzhailau” to be illegal, and therefore, invalid.

On April 7, the judge refused to accept the lawsuit. The judge thinks that “it cannot be reviewed and solved in the order of civil legal proceedings, as the disputed by the claimants public hearings and protocol do not cause any juridical consequences”.
On April 14, a private complaint is sent to the Appeal Board of the Almaty City Court.
On May 26, the Board satisfied the complaint of the claimants and cancelled the determination of the judge, obliging him to review the case to the point.
On June 24, without any explanations, the judge made a determination about stopping the proceedings on the case.
On June 26, a second private appeal is filed to the Appeal Board of the Almaty City Court.
The case remains open.



No.7
Case about acknowledging a conclusion of the state environmental assessment to be invalid and about recalling it.


The lawsuit against the municipal state enterprise (MSE) “Department of Natural Resources and Nature Utilization Regulation of the city of Almaty” in the interests of the residents of the city of Almaty is filed to the Bostandyk District Court of the city of Almaty on June 4, 2014.

Demands:
1. To acknowledge the conclusion of the state environmental assessment of the project “Environmental impact assessment” for multi-apartment residential complex of economy class dated on 30.01.2014 conducted by the Department of Natural Resources and Nature Utilization Regulation of the city of Almaty to be invalid.
2. To oblige the Department of Natural Resources and Nature Utilization Regulation of the city of Almaty to recall the conclusion of the state environmental assessment.

On June 23, the case reviewing process was started.
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 Inter-Regional 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 Inter-Regional 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).
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).
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.