Summary of Lawsuits in 2017 by the Ecological Society Green Salvation*

* Ecological Society Green Salvation (hereafter, GS)

SECTION No.1

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No. 1
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, case No.4, 2016).
The lawsuit in defense of interests of the state and undefined number of people is filed to the Specialized Inter-Regional Economic Court (SIEC) 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 November 28, 2016, a statement about reviewing of the court decision under new circumstances was submitted to the Specialized Inter-Regional Economic Court (SIEC) of the city of Astana.
On December 28, the SIEC of the city of Astana informed the GS that the case was under a review by the General Prosecutor’s office. After it is returned, the GS will be notified if the case is accepted for a proceeding.
On February 13, 2017, the SIEC of the city of Astana refused to satisfy the requirements of the GS, not recognizing the facts presented in the statement as the newly discovered circumstances.
On March 3, a private complaint was filed with the Appellate Board of the Court of Astana against the determination of the SIEC.
On April 12, the Board refused to satisfy the demands of the GS, not recognizing the facts presented in the statement as the newly discovered circumstances.
Due to incompliance of the Civil Procedural Code’s provision (hereinafter—CPC) with the requirements of the Constitution and other laws of the country regarding the priority of international agreements before national legislation, the GS decided to terminate the case.
The case is closed. The violations are not eliminated.

No. 2
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» (see the case No.8, 2016).
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.
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.

On November 2, 2016, the Appellate Board of Almaty City Court denied satisfying the appeal.
The judges explained the denial 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 GS, 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.
On February 15, 2017, a petition about revision of judicial acts that entered into legal force was submitted to the Supreme Court in a cassation order.
On March 6, after a preliminary examination of the petition, the Supreme Court’s judge refused to forward it for further examination by the cassation instance of the Supreme Court.
The judge repeated the arguments of the court of the first instance, explaining the denial by arguing that the claimant had missed the term of the limitation of actions. He did not assess the actions of a judge who, contrary to the law, did not accept the statement of the GS, thus creating an obstacle to access to justice in violation of the Article 3, paragraph 8 of the Aarhus Convention.
The case is closed.
Violations are not eliminated.

No. 3
Case about acknowledging actions of an official who provided false information about authority of the Akimat to be unlawful (see the case No. 9, 2016).
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 December 9, 2016, a petition about revision of judicial acts that entered into legal force was filed to the Supreme Court in a cassation order.
On January 16, 2017, after a preliminary examination of the petition, the Supreme Court’s judge refused to forward it for further examination by the cassation instance of the Supreme Court.
The judge did not get acquainted with the case materials. He rewrote the decision of the court of the first instance and repeated all of its violations.
Firstly, the GS did not ask for clarification of the «order of establishing of the protection zone»! On March 28, 2016, the GS addressed the Akim of Almaty with a request to immediately take a decision on establishing a protection zone of a specially protected natural territory. Thus, the judge went beyond the limits of the claim, violating the requirements of the paragraph 2, Article 225 of the CPC.
Secondly, the judge ignored the fact that, after receiving the inaccurate and incomplete information, the GS addressed the authorized body—the Forestry and Wildlife Committee. The Committee clearly pointed to the article of the law, which obliges the akimat to establish a protection zone. After receiving the letter from the Committee, it became obvious that the Akimat of Almaty city deliberately kept silent about its authorities, which it could not be unaware of.
Thirdly, the judge partially and incorrectly examined the issue of providing false information, but did not examine the issue of providing incomplete information, which is also a violation of the rights of the GS and an undefined number of persons. Thus, the judge violated the norms of national legislation and the Aarhus Convention.
The case is closed.
Violations are not eliminated. Reliable information is not provided.

No. 4
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 (see the case No. 10, 2016).
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 December 12, 2016, 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 would take place on January 25, 2017.
On January 25, 2017, the Civil Affaires Judicial Board of the Supreme Court satisfied the petition of the GS. The determination of the SIEC of the city of Almaty dated on July 28, 2016, and the determination of the Appellate Board of the Almaty City Court of August 24, 2016, were abolished. The materials of the statement of claim are forwarded to the court of first instance for a review from the stage of accepting the statement of claim.
On April 14, the statement of the GS was reviewed by the judge of the SIEC of Almaty. He refused to satisfy the claim demands.
In the decision, the judge ignored the instruction of the Civil Affaires Board of the Supreme Court on mandatory application of the norms of the Aarhus Convention and the regulatory decision of the Supreme Court dated on November 25, 2016, No. 8 «On certain issues of application by courts of the environmental legislation of the Republic of Kazakhstan in civil cases» when reviewing this case.
The judge did not limit himself to mere ignoring of these documents. He explained to the judges of the Supreme Court their «misses»: «The plaintiff’s reference that the Statement of the Supreme Court dated on December 12, 2016, established the fact of inauthenticity is unfounded, since this Statement is made on the basis of the preliminary examination of the petition and is not final. Thus, in the Statement of the Supreme Court of the Republic of Kazakhstan dated on January 25, 2017, on the abolition of the determination and sending this claim for a revision, there are no conclusions about the inauthenticity of the information».
The judge obviously did not understand that it was the conclusion about the inauthenticity of the information that became the basis for revising his determination and the determination of the Appellate Board.
In addition, the judge went beyond the scope of the lawsuit demands, and did not review the case on the merits.
On May 11, a private complaint was filed with the Appellate Board of the Almaty City Court on the decision of the SIEC.
On June 6, the revision did not take place due to the fact that one of the judges of the Appellate Board had already participated in the examination of the case.
On July 19, the hearing did not take place due to the fact that the defendant’s representative had no power of attorney to participate in the process.
The case remains open.

No. 5
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 (see the case No. 11, 2016).
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 December 9, 2016, an appeal is filed to the Appellate Board of the Almaty City Court.
On February 1, 2017, the Appellate Board refused to satisfy the complaint. The Board repeated the arguments of the SIEC of Almaty that the GS is an improper plaintiff, because it addressed the defendant not directly, but through a lawyer.
On April 28, the GS submitted a petition to the Supreme Court to review the judicial acts in cassation, namely, the decision of the SIEC of Almaty dated on November 11, 2016, and the decision of the Appellate Board on Civil Affaires of the Almaty City Court dated on February 1, 2017. The basis for review is violation of the rules of the substantive and procedural law (Article 435 of the Civil Procedural Code of the Republic of Kazakhstan).
On May 29, the Supreme Court judge, after having examined the petition, decided to refuse forwarding it to the Cassation Board of the Supreme Court. The judge did not review the case on the merits. He repeated the arguments of the judge of the SIEC of Almaty and the Appelate Board of the Almaty City Court that the GS is allegedly an inadequate plaintiff because it addressed the defendant not directly, but through a lawyer.
The case is closed. Information is not provided.

No. 6
Case about recognizing the actions of the Forestry and Wildlife Committee, which provided untruthful environmental information, to be illegal.
Lawsuit in the interests of an undefined circle of persons and the state was filed to the SIEC of Astana on January 12, 2017.
The Forestry and Wildlife Committee of the Ministry of Agriculture was brought to trial as a defendant.
Violations:
provision of untruthful information is a violation of:
– Paragraph 2, Article 20 of the Constitution of the Republic of Kazakhstan;
– Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;
– Subparagraph 7, paragraph 1, Article 14 and paragraph 1, Article 163 of the Environmental Code;
– Paragraph 4, Article 6 of the Law «On Access to Information».
Demands:
1. To recognize the act of providing of untruthful information by the Committee to be unlawful.
2. To oblige the Committee to provide the requested information in the full extent, including all seven points specified in the GS’s request.
3. To make a private determination with regard to the head of the Committee, in accordance with the Article 270 of the CPC.

On February 14, 2017, the SIEC of the city of Astana passed a ruling on termination of the proceedings on the GS’s lawsuit against the Forestry and Wildlife Committee.
Rejecting the GS in satisfying the lawsuit demands, the judge, firstly, in violation of the requirements of paragraph 2 of the Article 225 of the CPC of the RK, went beyond the scope of the claim, concluding that the claimant had allegedly already appealed the documents specified in the statement. Secondly, he incorrectly applied the paragraph 1 of the Article 277 of the CPC of the RK and recognized that «the case is not subject to consideration in civil proceedings». Thus, the judge violated the norms of national legislation and the Aarhus Convention.
On February 27, a private complaint was filed with the Appellate Board of the Astana City Court against the determination of the SIEC.
On April 12, the Board abolished the determination of the SIEC and sent the case for a revision by a different panel of judges.
The Board acknowledged that «when terminating the proceedings on this case as not subject to consideration by way of civil proceedings, the court of first instance referred to the existence of an enforceable judicial act between the same parties and about the same subject … this conclusion of the court of first instance, in the opinion of the panel, is incorrect and inadequate to the case materials.
The grounds for this lawsuit are different than for the demands stated and reviewed in 2015. Therefore, there were no grounds for termination of the proceedings on this case.
In view of the discrepancy between the conclusions of the court, described in the determination, and the materials of the case and the improper application of the rules of procedural law, the appealed determination is subject to cancellation, and the case is sent for a revision by a different panel of judges of the same court».
On June 7, a judge of the SIEC of the city of Astana refused to satisfy the lawsuit.
Without any reference to laws, the judge writes in the decision that «in the course of forest management works, the boundaries of the national park were specified». In the Republic of Kazakhstan, there is no normative legal act, according to which boundaries of national parks are specified during forest management works. And inclusion of new territories in the boundaries of national parks is carried out only by the government.
The judge, factually, blamed the government to be incompetent, which allegedly arbitrarily, without careful preparation of the question of territory and borders, passed a resolution establishing the Ile-Alatau National Park.
The judge ignored the fact that the defendant did not submit cartographic material to the court, despite the petition of the GS.
On July 14, an appeal against the decision of the SIEC is submitted to the Appelate Board of the Court of the city of Astana.
The case remains open.

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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 Consumer Rights Protection Department 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 Consumer Rights Protection Department 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 Consumer Rights Protection Department 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 Consumer Rights Protection Department “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, 2016, 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.
On February 24, 2017, the Consumer Rights Protection Department filed a petition to the Medeu District Court of Almaty to appeal against the actions of the bailiff of the municipal branch of the Justice Department of Almaty. The Consumer Rights Protection Department requested that the enforcement proceedings be terminated, allegedly due to fulfillment of all claims of the plaintiffs.
On April 4, the judge of the Medeu District Court of Almaty refused to satisfy the statement, pointing out that there are no grounds for terminating the enforcement proceedings.
On May 3, the Department lodged an appeal with the Civil Affairs Board of the Almaty City Court.
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.6, 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 GS 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.
On May 11, 2017, a request was sent to the head of the Talgar District’s akim office, Almaty oblast, to inquire about measures taken to eliminate the dumpsite and demolish the destroyed boiler house.
On May 29, a response was received stating that the new owner of the site is committed to bringing it to order by the end of June.

Not implemented.

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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.

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Translated by Sofya Tairova

Summary of Lawsuits in 2017 by the Ecological Society Green Salvation
Summary of Lawsuits in 2016 by the Ecological Society Green Salvation
Summary of Lawsuits in 2015 by the Ecological Society Green Salvation
Summary of Lawsuits in 2014 by the Ecological Society Green Salvation
Summary of Lawsuits in 2013 by the Ecological Society Green Salvation
Summary of Lawsuits in 2012 by the Ecological Society Green Salvation
Summary of Lawsuits in 2011 by the Ecological Society Green Salvation
Summary of Lawsuits in 2010 by the Ecological Society Green Salvation
Summary of Lawsuits in 2009 by the Ecological Society Green Salvation
Summary of Lawsuits in 2008 by the Ecological Society Green Salvation
Summary of Lawsuits in 2007 by the Ecological Society Green Salvation