Summary of Lawsuits in 2016 by the Ecological Society Green Salvation*

* Ecological Society Green Salvation (hereafter, GS)

SECTION No.1

* * *

No. 1
Case about acknowledging the Environmental Impact Assessment for the project of “Construction of a road to the mountain ski resort “Kokzhailau” to be illegal in the part of preservation of threatened plants listed in the Red Book and about cancellation of the project (see the case No.007, 2015).

The lawsuit in the interests of the state and undefined number of Almaty residents was filed on April 17, 2015, to the Specialized Inter-regional Economic Court (SIEC) of the city of Almaty.

Being a requester of the project, the Department of auto roads of the city of Almaty is brought to trial as a defendant.

Legal violations:
Requirements of the Law “About specially protected natural territories” about protection of rare and threatened species of plants (p.1 32-1, p.5 of the Article 32-1 and p.4 of the Article 78) are violated

Demands:
1. To acknowledge the Environmental Impact Assessment (EIA) for the project “Construction of a road to the mountain ski resort “Kokzhailau” to be illegal in the part of preservation of threatened plants listed in the Red Book and to cancel the project.

On November 24, a complaint is submitted to the Cassation Board of the Almaty City Court.

On December 15, the Cassation Board of the Almaty City Court began reviewing the complaint, but did not finish it. The review was first postponed to December 22, and then to December 29.

On December 29, the Cassation Board satisfied the complaint and made a statement about sending the case to the SIEC of Almaty and accepting it from the stage of the case admission.

The court hearings were scheduled for February 1, 2016. Due to the fact, that the case was assigned to a judge who violated the material and procedural law in two lawsuits filed by the GS, which were cancelled by the Almaty City Court, the organization submitted a request about recusation of the judge.

On February 2, the court denied the request about recusation by incorrectly interpreting the arguments. But the judge submitted a statement about self-recusation which was satisfied by the court. The case was assigned to a different judge.

From February 18 to March 9, several court hearings took place.

On March 11, the court denied satisfying the lawsuit demands. The judge allowed violation of the material and procedural laws.

Presented to the court documents proving the arguments of the ES about banning the removal and sanitary cutting of plants listed in the Red Book of Kazakhstan, were not studied by the court and were not given a proper evaluation.

The court did not take into consideration the norms of the Convention on Biological Diversity which have a priority over the laws of the Republic of Kazakhstan and are applied directly, according to the Constitution, CPC of the RK, and the Environmental Code. In the court decision, it wasn’t even mentioned that, according to the Convention on Biological Diversity, the Republic of Kazakhstan had adopted the international obligations in preservation of biological diversity, including protection of the plants listed in the Red Book.

The court making its decision based on the conclusion of the state assessment of the Environmental Impact Assessment for the project of “Construction of a road to the mountain ski resort “Kokzhailau”, grossly violated the requirements of the Article 15, Part 2, of the CPC of the RK, which states: “Court, staying objective and impartial, executes leadership of the process, creates necessary conditions for realization of the procedural rights on the full and objective study of a case circumstances by the parties.”

On April 7, a complaint is filed to the Civil Affaires Appeal Board of the Almaty City Court.

On June 29, the Board denied satisfying the claim.

1. In violation of the article 72 of the Civil Procedural Code (CPC) of the RK, the judges did not study the proves brought up by the GS. They referred to a decision dated on November 6, 2015, made by the court which allegedly had reviewed a similar case filed by the GS earlier. By that, the judges adopted a ruling which contradicted the Almaty City Court Cassation Board’s ruling dated on December 29, 2015, in which it was stated that EIA «can be a subject of a review in civil order» and can be disputed in a court.

2. The judges referring to the earlier reviewed case, indicated that allegedly during the environmdental assessment of the EIA materials, completeness of the EIA documentation and its conformance with the requirements of the instruction on conducting EIA were checked. Thus, the judges, once again, violated the requirements of the Article 72 of the CPC of the RK and paragraph 2, article 224 of the CPC of the RK.

3. After having admitted that the legislation of the RK does not allow «cutting» plants listed in the Red Book, in contradiction to their own statements, the judges indicated that developers of the EIA «came up with measures to reduce and prevent impact of the environments»! In other words, the judges admitted that, in spite of the requirements of the law, cutting plants listed in the Red Book is permissible.

4. The judges ignored the fact that, according to the law, not only the plants listed in the Red Book must be protected, but also the territory where they grow.

A petition about revision of the judicial acts adopted within this case was filed in a cassation order to the Supreme Court.

On November 14, after a preliminary review of the petition, the Supreme Court judge denied to pass it for a review by the Supreme Court Cassation Board.

The judge did not consider the arguments referred to by the ES in the petition. He did not go beyond reiterating the content of the decision of the court of the primary jurisdiction and the statement of the Appeal Board. In the conclusion, he indicated: «The petition arguments were subjected to a study by local courts and were given a proper legal evaluation. In these circumstances, there is no basis for a revision of the petition.»

The case is closed. Law violations are not eliminated.

* * *
No.2
Case about untruthful environmental information provided by the Committee of Forestry and Fauna about construction on the territory of a national park (see the case No.008, 2015).

The Lawsuit in the interests of the state and undefined number of people is filed on May 21, 2015, to the Specialized Inter-regional Economic Court of the city of Astana. The Committee of Forestry and Fauna of the Ministry of Agriculture is brought to trial as a defendant.

Legal violation:
A right of a public association to receive “timely, full, and truthful environmental information from state authorities and organizations” was violated (Environmental Code, Article 14, p.1, sub-p.7; Law “About specially protected natural territories”, Article 13, p.1, sub-p.5).

Demands:
1. To acknowledge the information provided by the defendant to be untruthful, therefore, illegal.

2. To oblige the defendant to provide the requested environmental information in full, including every point indicated in the request.

On September 16, the Appeal Board of the court denied satisfying the appeal. In violation of the Article 355 of the Civil Procedural Code of the RK, the Board did not study thoroughly the factual circumstance of the case and did not take into consideration the additional proves presented by the claimants, which are significant for solving this case correctly.

On March 14, 2016, a petition is filed to the Supreme Court in the order of cassation about revision of court cases which have come into force.

On May 3, after a preliminary review of the petition, the Supreme Court judge denied in passing it for a revision to the Cassation Board of the Supreme Court.

The judge did not study the documents presented by the GS and explained the denial by referencing outdated documents of 1994, i.e. documents which expired due to foundation of the Ile-Alatau National Park in 1996.

The claimant did not receive reliable information.

On September 6, new information was received by the GS. In this regard, a letter was sent to the Committee of Forestry and Wildlife requesting to do the following voluntarily without initiation of a new lawsuit by the GS because of newly appeared circumstances:
– to acknowledge the information provided in the response of the Committee No.18-02-32/592 КЛХЖМ dated on 10.03.2015, to be invalid, and therefore, unlawful;
– to provide the requested environmental information in full, including all seven points listed in our request, or explain the reasons for its absense;
– to explain the reasons for providing the GS with invalid information and apply penalty in relation to the responsible persons.

On September 23, a reply No.17-1-29/ЗТ-К/164 was received from the Committee of Forestry and Wildlife, in which again the defender provided untruthful information that «…after regular forest management works on the territory of the national park, the Left Talgar canyon was included into a specially protected natural territory.»

The ES did not agree with the Committee’s reply, and on October 10, sent another letter to the Committee requesting to provide full and reliable information.

On October 31, a reply No.17-1-29/ЗТ-К/164,1 received from the Committee did not contain the requested data. Due to the repeated cases when the Committee provided unreliable information, hid the real information about the situation in the national park in the area of Talgar mountain pass from the public, violated the public rights on receiving information stipulated by the national legislation and the Aarhus Convention, the Ecological Society made a decision to initiate a new lawsuit.

The case is closed due to initiation of a new lawsuit.

* * *
No.3
Case about acknowledging the conclusion of the state environmental assessment on the materials of the “Environmental Impact Assessment” on the project “Construction of a road to the mountain ski complex “Kokzhailau” to be illegal and about its cancellation (see the case No.010, 2015).

The lawsuit in the interests of the state and undefined number of people is filed on July 8, 2015, to the Specialized Inter-regional Economic Court of the city of Almaty.

The Department of Natural Resources and Nature Management is brought to trial as a defendant.

Legal violation:
1) requirements of the law “About specially protected natural territories” in the part of protection of rare and threatened species of plants are violated (p.1 and p.5 of the Article 32-1, p.4 of the Article 78);

2) requirements of the Article 46 of the Environmental Code defining purposes of an environmental assessment are violated.

Demands:
To acknowledge the conclusion of the state environmental assessment on the materials of the “Environmental Impact Assessment” on the project “Construction of a road to the mountain ski complex “Kokzhailau” to be illegal and to cancel it.

On December 28, the Appeal Board of the Almaty City Court denied satisfying the complaint.

The judge violated the material and procedural law.

Firstly, the judge went beyond the lawsuit demands by reviewing the question about norms of pollutants emission. This question was not disputed by the claimant.

Secondly, the judge recognized as correct the conclusion of the court of the first instance, which said that lands of a specially protected natural territory of the country-wide level, namely Ile-Alatau National Park, are subjected to the “Rules of maintenance and protection of green vegetation of the city of Almaty”. All parties of the process referenced multiple times the paragraph 55 of the above mentioned Rules, which states that the Rules do not apply to specially protected territories of the country-wide level.

The judge deliberately or because of a lack of professionalism ignored the clear guidelines of the paragraph 6, Article 108 of the Land Code, which states that “inclusion of land lots into a city, town, or village limits does not cease property rights or land ownership rights over these lands.” This means that Ile-Alatau National Park was and is a specially protected national territory of the country-wide level, and the named Rules do not apply on its territory.

Thirdly, in violation of the Article 65 and part 2 of the Article 218 of the CPC of the RK, the judge did not consider the circumstances referred to by the GS regarding the fact that none of the state organs of the Republic of Kazakhstan possess an authority to cut or remove plants listed in the Red Book.

Fourthly, during consideration of the forest-pathology examination appeared in the case, the judge incorrectly applied the provisions of the paragraph 1 of the Article 6 of the Law “About normative legal acts” which states: “In case of contradictions in the norms of normative acts of different level, the norms of a higher level act are applied”. The law implies active legal acts. The forest-pathology examination was made based on inactive normative legal act.

On April 30, 2016, a petition about revision of court cases which have come into force was filed in the order of cassation to the Supreme Court.

On June 27, after a preliminary revision of the petition of the GS, the Supreme Court judge denied passing it for a review by the Supreme Court Cassation Board.

In violation of the Article 65 and paragraph 2 of the Article 218 of the CPC of the RK, the judge did not consider the circumstances referred to by the GS regarding the lack of authority in all state organs of the Republic of Kazakhstan to cut or remove plants listed in the Red Book.

The judge exceptionally poorly studied the case materials. He even did not understand that the case was about proposed cutting of the «Red Book plants», and not about already performed cuttings. In the determination, he wrote: «Removal of vegetation was performed by the RSA «Ile-Alatau SNNP» based on received permits». In the documents presented by the GS to the court, it was mentioned multiple times, that no permits to cut the «Red Book plants» exist.

On August 23, a statement with a request based on the Articles 5, 6, 7 of the Law of the RK «About the Prosecutor’s Office» in the set order to review the appeal of the GS about violations of the environmental legislation and to undertake measures to recover the violated lawful interests of the state in the area of protection and preservation of the «Red Book plants», was filed to the General Prosecutor of the Republic of Kazakhstan.

On December 8, due to a lack of response from the Specialized nature protection prosecutor’s office of the city of Almaty, where the General Prosecutor forwarded the statement from the ES to, after three months of waiting, a second letter was sent there again.

The case remains open.

* * *
No.4
Case about inaction of a state authority in controlling of legislation observance in the area of preservation and utilization of sites of historical and cultural heritage, in particularly, in regards of Talgar site of ancient settlement (see the case No.011, 2015).

The lawsuit in defense of the interests of the state and undefined number of people is filed to the Specialized Inter-Regional Economic Court of the city of Astana on September 18, 2015. The Ministry of Culture and Sports of the Republic of Kazakhstan is brought to trial as a defendant.

Legal violations:
in accordance to the Provisions about the Ministry of Culture and Sports of the Republic of Kazakhstan approved by the Decree of the Government of the Republic of Kazakhstan dated on September 23, 2014, The Ministry is obligated to control legislation observance in the area of preservation and utilization of sites of historical and cultural heritage, which in the given case is not executed by the Ministry.

Demands:
1. To oblige the Ministry of Culture and Sports to take immediate measures as by law enacted for preservation of the site of historical and cultural heritage – Talgar site of ancient settlement.

2. To oblige the Ministry to provide the Ecological Society Green Salvation with documents requested earlier, in particular, a base architectural plan and a layout map of the area with indication of a preservation zone of the site of historical and cultural heritage.

On October 26, and November 7 and 13, court hearings took place.

On November 13, the court denied satisfying the lawsuit. In violation of the Article 65 of the Civil Procedural Code and part 2 of the Article 218 of the Civil Procedural Code of the RK, the judge did not study the evidence referred to by the GS, in regards to the failure to provide the GS with a schematic map of the area with indication of a preservation zone of the site of historical and cultural heritage; inaction of state authorities in liquidation of garbage dumpsters on the site of ancient settlement and marking the borders of the settlement on the site.

On December 7, a complaint is submitted to the Civil Affaires Appeal Board of the Astana City Court.

On March 2, 2016, the Court Appeal Board denied satisfying the complaint.

The judges violated material and procedural law.

In violation of the Article 72 of the CPC and Part 2 of the Article 218 of the CPC of the RK, the judges did not study the evidence referenced by the GS in regards of the following:
– failure to provide the base architectural plan and layout map of the territory with indication of preservation zone of the site of historical and cultural heritage to the GS;
– inaction of the state authorities in liquidation of garbage dumpsters on the territory of the ancient settlement;
– inaction of the state authorities in on-site marking of the borders of the ancient settlement by special signs;
– failure to take measures to prevent destruction and to preserve the site of historical and cultural heritage – Talgar ancient settlement.

In the determination of the court it was indicated that just recently, on July 28, 2015, “the Ministry supported the decision of the Almaty Oblast Center for preservation of historical and cultural heritage about acquiring a deed over the land lot.” In other words, the Ministry admits that the deed over the land lot was not received until March 2, 2016, although the site was included into the World Heritage List back in 2014.

The court determination mentions a letter of the Ministry dated on October 16, 2015, which says that the Ministry is controlling the question of installing protection signs. In other words, the Ministry admits that before March 2, 2016, the protection signs were not installed.

The judges incorrectly applied the subparagraph 6 of the Article 18 of the Law “About protection and utilization of sites of historical and cultural heritage” which says that the local executive organs of oblasts, cities of the countrywide level, and the capital, “in agreement with the authorized organ, during development and approval of planning, construction and reconstruction projects of the cities and other settlements, assure implementation of measures to determine, study, and preserve monuments of history and culture of all categories, create historical and cultural base plans and map-layouts.”

But the determination of the court, firstly, does not mention that the local authorities are planning a development and approval of the project of planning, construction development, and reconstruction of the city on the territory of the world heritage site – Talgar ancient settlement. Secondly, it does not mention that the authorized organ approved the historical and cultural base plan and map-layout for this territory.

But firstly, the rulling of the judicial board does not indicate that according to the law, the local authorities do not have a right to perform any works on the territory of the world heritage site – Talgar ancient settlement. Secondly, it does not mention that an authorized organ approved the historical and architectural base plan and map-layout for this territory.

On June 6, a petition about revision of court cases which have come into force was filed to the Supreme Court in the order of cassation.

On June 27, after a preliminary revision of the petition of the GS, the Supreme Court judge denied passing it for a review by the Supreme Court Cassation Board.

In violation of the Article 72 and paragraph 2 of the Article 224 of the CPC of the RK, the judge did not study the proves referred to by the GS. He repeated the argumentation of the judges of the Court Appeal Board.

A lawsuit about re-initiation of the case revision because of new circumstances is being prepared to be filed to a court, due to the decision of the World Heritage Committee No.40 COM 7B.34 regarding the ancient settlement Talgar, adopted at the 40th session of the World Heritage Committee which took place from July 10 to 20 in Istambul.

On November 28, a statement about reviewing of the court decision under new circumstances was submitted to the Specialized Inter-regional Economic Court of the city of Astana.

On December 28, the SIEC of the city of Astana informed the ES that the case was under a review by the General Prosecutor’s office. After it is returned, the ES will be notified if the case is accepted for a proceeding.

The case remains open.

* * *
No.5
Case about failure of a state authority to provide environmental information about establishing a protection zone for Ile-Alatau State National Natural Park – a specially protected natural territory of the national level (see the case No.012, 2015).

The lawsuit in defense of the interests of the state and undefined number of people is filed to the Specialized Inter-Regional Economic Court of the city of Almaty on September 18, 2015. The Akimat (Mayor’s Office) of the city of Almaty is brought to trial as a defendant.

Legal violations:
1) requirements of the Law “On Specially Protected Natural Territories” about obligation of the local executive authorities to establish protection zones of specially protected natural territories, in order to assure their protection and defense from unfavorable external impacts (subparagraph 11, paragraph 2, Article 10 and 18), are violated;
2) requirements of the subparagraph 7, paragraph 1, Article 14 of the Environmental Code about obligation of state authorities to provide timely, full and trustworthy environmental information by requests from public associations, are violated.

Demands:
1. To acknowledge the failure of the Akimat of the city of Almaty to provide requested information to the Ecological Society Green Salvation to be inaction.
2. To oblige the Akimat of the city of Almaty to provide the Ecological Society Green Salvation with all requested information about establishing of a protection zone of Ile-Alatau State National Natural Park.

On October 19, the court made a determination not to accept the lawsuit for a review, because the claimant did not pay the state fee.

On October 21, a private complaint is submitted to the Appeal Board of the Almaty City court, in regards to a disagreement of the Ecological Society Green Salvation with the court’s statement. By submitting lawsuits to courts about inaction of state authorities, the organization defends interests of citizens and the state, and not its own interests.

On December 23, the Board denied satisfying the demand. The judge incorrectly applied the paragraph 10, Article 541 of the Code of the RK “About taxes and other obligatory payments to the budget”. According to the indicated paragraph, “physical and juridical persons who addressed to …a court with a lawsuit in defense of rights and protected by law interests of other persons or the state” do not need to pay the fee.

On March 28, 2016, a letter with a demand to establish a protection zone of a specially protected natural territory Ile-Alatau SNNP was filed for the second time to the Akimat (Mayor’s Office) of the city of Almaty.

The case is terminated due to filing of a statement to a court about failure to act by the Akimat (Mayor’s Office) of the city of Almaty, see the case No.8.
The case is closed.

* * *
No.6
Case about inaction of a state authority which lead to serious deterioration of environmental situation in the town of Besagash and violation of the citizens’ rights to favorable environment (see the case No.8, 2010; No.2, 2011; No.013, 2015).

The lawsuit in the interests of the residents of the town of Besagash, Talgar District, Almaty Oblast, is filed by the Ecological Society Green Salvation to the Talgar District Court on November 11, 2015. Akim (head) of Besagash Rural District and Head of the co-op “PK Luch Vostoka” were brought to trial as defendants.

Legal violations:
1) lack of the state authority’s action in providing environmental and sanitary and epidemiological well-being of the residents of the town, in violation of the Article 35 of the Law “About local state governance and self-governance in the Republic of Kazakhstan” and the Article 93 of the Land Code, which stipulates forced expropriation of land from its owner, if the land was utilized with gross violations of land use rules stated in the Code or other laws;
2) violation of the citizens’ rights on favorable environment, acknowledges by the subparagraph 1, paragraph 1, Article 13 of the Environmental Code.

Demands:
1. To acknowledge the failure of the Akim of Besagash Rural District to perform his responsibilities in providing residents of the town of Besagash with environmental, sanitary and epidemiological well-being, in accordance with the Land and Environmental Codes, and the failure of the head of the co-op “PK Luch Vostoka” to perform his responsibilities in maintaining and utilizing his property – to be inaction.
2. To oblige the Akim of Besagash Rural District, within his authority, to take immediate measures to recover the environmental conditions in the town of Besagash, in particularly, to oblige the head of the co-op “PK Luch Vostoka” to liquidate the garbage dumpster by demolishing the former boiler house, which represents a life and health threat to people, and to bring the conditions of the land in accordance with the Land and Environmental Code.

From November 30 to December 21, several court hearings took place.

On December 21, the court made a decision about partial satisfaction of the lawsuit demands. The court acknowledged the inaction of the Akim of Besagash Rural District in providing residents of the town of Besagash with sanitary and epidemiological well-being, in accordance with the Land and Environmental Codes.

On December 21, the court made a decision about partial satisfaction of the lawsuit demands. The court admitted the inaction of the akim (mayor) of Besagash rural district in providing sanitary and epidemiological well-being of the residents of Besagash village, in accordance with the Land and Environmental Codes. But, in violation of the paragraph 1, Article 227 of the Civil Procedural Code, in its decision, the court did not indicate, “…which laws these actions (inactions), decision are in contradiction with, and the deadline for implementation of the court decision.”

According to the paragraph 1, Article 227 of the CPC of the RK, the court did not oblige the “state organ,… authorized person and state worker to fully eliminate the violation and recover the violated rights, freedoms, and lawful interests of a citizen or a juridical person…”

On January 12, 2016, a complaint is submitted to the Civil Affaires Appeal Board of the Almaty Oblast Court.

On February 24, the Appeal Board denied satisfying the complaint. the judges violated the material and procedural laws.

The judges of the Appeal Board referred to the proof-less statement for the akim of Besagash rural district that the residents’ requirements to liquidate the garbage dump sites were fully implemented, made a determination about denial in satisfaction of the appeal.

In violation of the Article 72 of the CPC and Part 2 of the Article 218 of the CPC of the RK, the judges did not study the evidence referred to by the GS, in particularly: the illegal dumpster in the village is not liquidated, in other words, the representatives of the Office of the Akim of Besagash rural district were provided false information.

The judges did not indicate that the court of the first instance after acknowledging inaction of the akim, intentionally or due to a lack of professionalism, did not apply the provisions of the paragraph 1 of the Article 227 of the CPC of the RK:
– did not indicate in the decision, according to “…which laws, these actions (inactions), decision are in contradiction with, and the deadline for implementation of the court decision”;
– did not oblige the “state organ,… authorized person and state worker to fully eliminate the violation and recover the violated rights, freedoms, and lawful interests of a citizen or a juridical person…”

On April 22, a petition in the order of cassation concerning revision of court cases which have come into force, was filed to the Supreme Court.

On June 13, after a preliminary revision of the petition, the Supreme Court judge denied passing it for a review by the Supreme Court Cassation Board.

In violation of the Article 72 and paragraph 2, Article 224 of the CPC of the RK, the judge did not study proves referred to by the GS. He repeated the argumentation of the judges of the Appeal Board of the court.

The case is closed. See SECTION No.2. Implementation of court decisions

* * *
No.7
Case about acknowledging to be unlawful and revoking of the «Material of inventory and forest pathology examination of vegetation» (hereafter – Material) prepared by «K…» LLC with violation of the legislation of the RK.

The lawsuit was filed by the GS on May 31, 2016, to the SIEC of the city of Almaty in defense of interests of the state and undefined number of residents of Almaty.
«K…» LLC brought to trial as a defender.

Legal violations:
1) utilization of a normative legal act which does not have a juridical force on the territory of Ile-Alatau National Park and instruction which is not a normative legal act as a legal foundation for preparation of the material;
2) gross violation of the requirements of the laws which stipulate protection and preservation of plants listed in the Red Book of Kazakhstan.

Demands:
1. To acknowledge the «Material of inventory and forest pathology examination of vegetation» (hereafter – Material) prepared by «K…» LLC to be invalid and revoke it.
On June 6, the court denied accepting the lawsuit of the GS, in violation of the sub-paragraph 1-1), paragraph 1, article 14 of the Environmental Code of the RK, according to which the GS has a right to file a lawsuit in defense of undefined number of people. As a reason for denial, the court stated that the disputed material «does not cause legal consequences for the claimant».

On June 17, a private complaint on the SIEC’s determination was filed to the Almaty City Court Civil and Administrative Affaires Appeal Board.

On July 20, the Board denied satisfying the complaint.

The judge ignored the requirements of the paragraph 2 and 3, article 9 of the Aarhus Convention, paragraph 2, article 8 of the CPC of the RK, and sub-paragraph 1-1), paragraph 1, Article 14 of the Environmental Code of the RK, according to which public associations have a right to step forth in defense of interests of other persons and undefined number of people.

The judge incorrectly applied the paragraph 5 of the normative statement of the Supreme Court RK which is related to actions of state organs. The GS lodges a complaint against a document prepared by the LLC and not a state organ.

On October 12, a petition about revision of legal acts entered into a legal force was filed in a cassation order to the Supreme Court.

On November 14, after a preliminary review of the petition, a judge of the Supreme Court denied promoting it for a revision by the cassation instance of the Supreme Court.
The judge literally repeated the wording of the courts of the first and appellate instances, ignored the requirements of the paragraphs 2 and 3 of the Article 9 of the Aarhus Convention, paragraph 2 of the Article 8 of the CPC and subparagraph 1-1), paragraph 1, article 14 of the Environmental Code, according to which public associations have a right to defend interests of other persons and undefined number of people.

The judge of the Supreme Court, either due to a lack of professionalism or intentionally, did not apply normative rulings of the Supreme Court No.1 dated on July 10, 2008 “About application of the norms of international treaties of the Republic of Kazakhstan” and No.1 dated on January 15, 2016, “About the right of access to justice and competences of the Supreme Court of the Republic of Kazakhstan in revision of judicial acts” in which it is emphasized that international treaties have a priority.

The case is closed.

* * *
No. 8
Case about inaction of a public administration organ (Akimat of the city of Almaty) which lead to violation of the law «About specially protected natural territories».

The lawsuit is filed by the GS on May 31, 2016, to the the SIEC of Almaty City Court in defense of the state and undefined number of residents of the city of Almaty. Akimat of the city of Almaty is brought to trial as a defender.

Legal violations:
1) Inaction of the Akimat of the city of Almaty in setting up a conservation zone of a specially protected natural territory of the country-wide level – Ile-Alaatau National Park, and limitation of activity which has a negative impact on the condition of the ecological systems of the park within the conservation zone, and determining a procedure for its protection and utilization.

Demands:
1. Acknowledge the failure of the Akimat of the city of Almaty to meet their responsibilities in setting up a conservation zone of a specially protected natural territory of the country-wide level – Ile-Alatau National Park, to be illegal inaction.
2. In order to ensure integrity and protection from unfavorable external impacts on the territory of Ile-Alatau National Park, oblige the Akimat of the city of Almaty to implement immediately the requirement of the law «About specially protected natural territories» on establishing the conservation zone.

The court denied accepting the lawsuit twice, on June 7 and July 20.

On August 9, the lawsuit was filed for the third time.

Several court hearings took place from September 9 to 27.

On September 28, the court denied satisfying the lawsuit, allegedly because the limitation of action had expired.

With this decision, the court basically admitted that during 10 years(!), the Akimat of the city of Almaty did not follow and is not following the above mentioned requirement of the law.

In the decision of the court it is said: «…According to the Law, determination of conservation zones of specially protected natural territories is a responsibility of the local executive organ (Akimat of the city of Almaty is such an organ – editor’s note). In this part, the argumentation of the claimant is grounded».

«Meanwhile, the court points out the attention of the Akimat of the city of Almaty to its responsibilities stipulated in the Articles 10 and 18 of the Law to take decisions on setting up conservation zones of specially protected natural territories of all types with limitation of activity within these zones which has a negative impact on conditions of the ecological systems of these territories, ecological corridors, and also the procedure of their protection and utilization».

On October 11, an appeal is filed to the Appellate Board of the Almaty City Court.

On November 2, the Appellate Board denied satisfying the appeal.

The judges explained the denial by as if the claimant missed the term of the limitation of actions. But they did not make a judgement over the actions of the judge who, in violation of the law, did not accept the lawsuit of the ES, therefore, creating an obstacle to access justice, in violation of the paragraph 8, Article 3 of the Aarhus Convention. No judgement was made over the actions of a judge who accepted the lawsuit into a proceeding, prepared the lawsuit for hearings, conducted several court hearings, after which discovered that the term of the limitation of actions had passed.

The ES is preparing a petition to the Supreme Court.

The case remains open.

* * *
No. 9
Case about acknowledging actions of an official who provided false information about authority of the Akimat to be unlawful

Lawsuit in the interests of the state and undefined number of people was filed by the GS on June 27, 2016 to the SIEC of the city of Almaty.
Deputy head of the Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty was brought to trial as a defender.

Legal violations:
1) Action of the deputy head of the Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty which was expressed in providing of false and incomplete information about authority of the Akimat in establishing a conservation zone of a specially protected natural territory of Ile-Alatau SNNP.

Demands:
1. To acknowledge the provision of the false and incomplete information about establishing a conservation zone of a specially protected natural territory of Ile-Alatau SNNP by the deputy head of the Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty to be an unlawful action.
2. To oblige the deputy head to provide copies of documents which prove establishment of the conservation zone in Ile-Alatau SNNP (if such documents exist).

On July 26, the SIEC made a determination about returning the case, because of unpaid state fees. The court ignored the fact that, according to the paragraph 10), Article 541 of the Tax Code of the RK, a claimant is exempt from paying the state fee when defending rights of undefined number of people.

On August 4, the case was filed to the court for the second time.

From September 9 to 14, several court hearings took place.

On September 14, the court denied satisfying the lawsuit.

Firstly, the judge incorrectly stated the main point of our request to the Akimat. The GS did not ask to explain “the order of establishing of a conservation zone”! On March 28, 2016, the GS addressed to the Akim of the city of Almaty with a request to immediately make a decision on establishing a conservation zone of the specially protected natural territory (Ile-Alatau SNNP) with limitation of activity within the zone which has a negative impact on the condition of the ecological systems of the national park, and also establish a procedure for its protection and utilization. By this, the judge went beyond the scope of the lawsuit demands violating the requirements of the paragraph 2, Article 225 of the CPC of the RK.

Secondly, the judge ignored the fact that after receiving the false and incomplete information, the GS addressed to the Committee of Forestry and Wildlife. The Committee clearly indicated the article of the law which obliges the akimat to establish the conservation zone. After receiving the letter from the Committee, it became obvious that the Akimat of the city of Almaty intentionally held back about its authority which could not be unknown to it.

Thirdly, the judge partially and incorrectly reviewed the question about providing the false information, but did not consider the question about providing of incomplete information which is also a violation of the rights of the GS and undefined number of people.

Fourthly, the judge did not indicate the fact that in result, the GS still have not received a response from the Akimat of the city of Almaty on the question about its authority.

On October 11, an appeal was filed to the Appellate Board of the Almaty City Court.

On November 2, the Appellate Board denied satisfying the appeal.

In violation of the paragraph 5, Article 420 of the CPC, the judge did not research and did not give an evaluation to the arguments presented in the case. The reiterated arguments of the court of primary jurisdiction which freely interpreted the subparagraph 11, paragraph 2, Article 10 and paragraph 2, Article 18 of the Law «About specially protected natural territories.»

On December 9, a petition about revision of judicial acts entered into legal force was filed to the Supreme Court in a cassation order.

The case remains open.

* * *
No. 10
Case about acknowledging actions of the CSE «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» which provided false information, to be unlawful.

Lawsuit in defense of the interests of undefined number of residents of the city of Almaty is filed by the GS on July 25, 2016 to the SIEC of the city of Almaty.
The Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty was brought to trial as a defender.

Legal violations:
1) Action of the deputy head of the Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty which was expressed in providing the GS with false information about legal succession by «U…» LLC.

Demands:
1. To acknowledge the information provided by the defender – CSE «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» – to be false, and therefore, unlawful.
2. To oblige the defender – CSE «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» – to provide full and reliable information regarding the status of the «U…» LLC.

On July 28, the SIEC made a determination to deny satisfying the lawsuit of the GS. The SIEC indicated that the lawsuit of the GS allegedly is not subjected to a review in the order of a civil proceeding.

On August 8, the GS filed a private complaint over the determination of the SIEC to the Almaty City Court

The determination of the court was made unlawfully, because the sub-paragraph 7, paragraph 1, article 14 of the Environmental Code of the RK stipulates that public associations have right «to receive timely, full, and reliable environmental information from state organs and organizations». Paragraph 2, Article 18 of the Law «About access to information» stipulates the order of disputing of unlawful limitation of the right on access to information in courts.

When refusing to accept our lawsuit, the court violated the paragraph 4, Article 151 of the CPC of the RK, by not indicating the organ where we need to address, if the case is not subjected to a review and resolution in the order of civil legal proceedings.

On August 24, the Appeal Board of the Almaty City Court denied satisfying the private complaint.

In violation of the paragraph 5, Article 420 of the CPC, the judges did not study and did not give an evaluation to the arguments presented in the case. They literally reiterated the argument of the court of the primary jurisdiction that the information provided by the Department of Natural Resources and Nature Management Regulation has informational purposes and «does not cause legal concequences for the claimant and other persons, does not violate their rights and interests.»

Such conclusion of the judicial board is completely unsustainable, as according to the subparagraph 1-1), paragraph 1, Article 14 of the Environmental Code, public association, such as the ES, «have a right: to appeal to a court in defense of rights, freedoms, and lawful interests of physical and juridical persons, including interests of undefined number of people, in the matter of environmental protection and natural resources utilization.»

On October 26, a petition about revision of judicial acts entered into legal force was filed to the Supreme Court in a cassation order.

On December 12, after a preliminary review of the petition, a judge of the Supreme Court made a determination to forward it for a revision to the Cassation Board of the Supreme Court, which will take place on January 25, 2017.

The case remains open.

* * *
No. 11
Case about acknowledging actions of the Department of Consumers Rights Protection of the city of Almaty which did not provide requested information to be unlawful.

Lawsuit in the interests of undefined number of residenta of the city of Almaty was filed by the GS to the SIEC of the city of Almaty on September 20, 2016.
The Department of Consumers Rights Protection of the city of Almaty is brought to trial as a defendant.

Legal violations:
1) The Department denied providing information of unlimited access, having illegaly qualified it as information with limited access and illegally classifying it as a trade secret.

Demads:
1. To acknowledge the failure to provide information by the Department of Consumers Rights Protection of the city of Almaty, to be an illegal action;
2. To oblige the Department to provide the GS with the requested information in a way of a sanitary and epidemiological conclusion issued to «U…» LLC;
3. To issue a private determination in relation to the head of the Department, according to the Article 70 of the CPC of the RK.

On September 26, the SIEC issued a determination about returning the case because of unpaid state fees. The court ignored that according to the paragraph 10), Article 541 of the Tax Code of the RK, a claimant is exempt from paying the state fees when defending rights of other people.

On September 29, the GS filed the lawsuit to the court for the second time.

Several court hearings took place from October 13 to November 11.

On November 11, the court denied satisfying the lawsuit.

The judge justified the denial by as if the ES is not a proper claimant because it addressed the defendant not directly, but through a laywer. But the laws of the RK do not stipulate that the public must seek information directly and not through a lawyer. Besides, the judge believed that the rigths of the ES were not violated, in spite of the subparagraph 1-1), paragraph 1, Article 14 of the Environmental Code, according to which non-profit organizations «have a right: to appeal to a court in defense of rights, freedoms, and lawful interests of physical and juridical persons, including interests of undefined number of people.»

This decision was taken by the judge at the last hearing. Before that, on October 3, he made a decision to accept the lawsuit and initiate a civil proceeding, after that, he prepared the lawsuit for court hearings. On October 13, he invited the parties for a preliminary court hearing. Following that, he conducted several court hearings, and… suddenly, decided that he is dealing with an improper claimant.

On December 9, an appeal is filed to the Appellate Board of the Almaty City Court.

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 RK.

No.1
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).

On October 3, 2014, because of a failure to implement the Decision of the Supervisory Board of the Supreme Court dated on November 27, 2013, which admitted the inaction of the director of the Department of sanitary and epidemiological control of the city of Almaty, the claimants filed a new lawsuit. They demanded to acknowledge the actions of the law enforcement officer of the Department of Judicial Acts Enforcement of the city of Almaty to be illegal.

On November 3, the case hearings are suspended, as the Department of Judicial Acts Enforcement of the city of Almaty admitted the violations, cancelled the disputed determination, and made a decision to resume the executory process.

On December 24, the executory process was resumed.

On February 25, 2015, Medeu District Court made a determination on restriction to travel to the Head of the Department of Consumer Rights Protection of the city of Almaty till the full completion of enforcement of the court decision.

June 8, a representative of the Department of Judicial Acts Enforcement of the city of Almaty together with representatives of the Department of Consumer Rights Protection of the city of Almaty and Public Prosecutor’s Office, and local residents went to the site for a check-up of the court decision enforcement.

2016
1. Claimants are calling for initiation of a criminal case against the former Head of the Department of Protection of Consumer Rights of the city of Almaty for the malicious failure to implement of the determination of the Supreme Court.

2. Claimants are demanding the acting Head of the Department of Protection of Consumer Rights of the city of Almaty to implement the determination of the Supervisory Board of the Supreme Court dated on November 27, 2013, since the retirement of the previous head does not cease the court execution of the court determination.

On August 3, the Supervisory Board of the Supreme Court made a determination on the claimants’ statement where it was indicated that control over marking the area of sanitary and protecting zones and providing the claimants with the documentation reflecting location of their houses and boundaries of the sanitary and protection zones is delegated to the head of the Department of Protection of Consumers’ Rights “as an authority – supervisor of a juridical person”.

On the basis of the Supreme Court’s determination dated on August 3, 2016, the decision of the bailiff of the Department of Justice of the city of Almaty dated on May 16, 2016, about termination of the enforcement proceedings was cancelled.

On December 27, a bailiff delivered the ruling about implementation of the determination of the Supreme Court to the Department representative and listed the Department in the General register of obligators on executory proceedings.

Not implemented.

* * *
No. 2
Case about inaction of a state authority which lead to serious deterioration of environmental situation in the town of Besagash and violation of the citizens’ rights to favorable environment (See case No.06, 2016).

On July 13 and August 31, 2016, the GS filed letters to the judge of Talgar District Court of Almaty Oblast with a request to issue a writ to implement the requirements of the paragraph 1, Article 227 of the CPC of the RK , in order to oblige the state organ «to eliminate in full extent the occured violation and recover the violated rights, freedoms, and lawful interests of a citizen or juridical person».

On October 27, the ES sent a request about implemented measures on liquidation of unsanctioned dumpsite and destroyed building to the head of the akim’s (governor’s) office of Talgar District.

On November 10, the head of the akim’s office informed that the territory will be cleared of litter, the litter will be removed, and the new owner of the boiler-house is taking an obligation to demolish the building in spring 2017.

Not implemented.

* * *

Rights and legal interests of the Ecological Society “Green Salvation” are defended in court by lawyer Svetlana Philippovna Katorcha and an attorney of the Almaty City Board of Attorneys Omarbekova Alma Zhanatovna.

* * *

Translated by Sofya Tairova.