Ecological Society Green Salvation (hereafter—ES)
SECTION No.1
Case No. 1
on the failure of Almaty City Department of Urban Planning and Urbanism to provide environmental information on which section of the General Plan contains information on the buffer zone for the Ile-Alatau National Park
Case background facts
On November 15, 2023, the ES sent a letter to the Department of Urban Planning and Urbanism of Almaty (hereinafter—the Department) with a request to provide environmental information on which section of the new General Plan of Almaty until 2040 contains information about the buffer zone for the Ile-Alatau National Park and where it can be found.
The response from December 6 states that in “clause 6.4.1 of the explanatory note of the General Plan (Volume 2, section Architectural and planning organization of the territory) Proposals for the preservation and development of the territories of the city’s natural complex” it is stated that “it is necessary to develop and approve in the established manner a buffer” for the Ile-Alatau National Park. However, the Department did not attach extracts from the explanatory note of the General Plan to its response.
On January 15, 2024, the ES again contacted the Department.
The Department’s response of February 2 stated that “after the approval of the General Plan of Almaty City (by the Government of the Republic of Kazakhstan on May 3, 2023) until 2040, all current detailed planning projects became irrelevant, and in connection with this, a decision was made to develop new detailed planning projects.”
Having checked the links provided in the response, the ES was convinced that the materials provided did not contain the requested environmental information. On March 14, the ES sent a new letter to the Department asking for documents. The Department ignored the request.
Legal violations
The Department violated the right of the ES to access timely, complete and reliable environmental information. The provision is provided for in Article 4 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter—Aarhus Convention). The Department violated Article 13 and Article 17 of the Environmental Code of Republic of Kazakhstan (hereinafter—RK), Article 6, Article 7 and Article 9 of the Law of RK “On Access to Information.”
The Ecological Society went to court
On May 10, a claim was filed with the Specialized Interdistrict Administrative Court of Almaty (hereinafter—SIAC) in defense of the interests of an indefinite number of persons and the interests of the organization.
Demands
- To recognize the failure of the Department to provide environmental information as an illegal action.
- To oblige the Department to provide an extract (in writing) from the explanatory note of the General Plan and a copy of the detailed planning project of the buffer zone.
The Department requested that the claim be denied, citing the fact that establishing a buffer zone for the park is not its responsibility and that the plaintiff should contact Almaty City Department of Ecology and Environment.
The SIAC, guided by the norm of Article 30 of the Administrative Procedure Code (hereinafter—APC), on its own initiative involved Almaty City Department of Ecology and Environment as an interested party.
During the process, it became clear that a detailed plan of buffer zone for the national park had not been developed and the new General Plan did not provide for the creation of buffer zone.
On June 28, the SIAC satisfied the claims of the ES, recognizing the inaction of the Department as illegal, and obliged it to provide environmental information. The court pointed out the defendant’s violation of the provisions of the Aarhus Convention and a number of requirements of national legislation. The court decision states that the Department is obliged to inform the court about the execution of the decision “no later than 3 (three) working days from the date of its entry into legal force.”
In September, the Department filed an appeal to Almaty City Court.
On October 31, the panel of judges, having reviewed the appeal, dismissed it.
The trial continues.
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Case No. 2
on the failure of Almaty City Department of Culture to provide environmental information on the implementation of the resolution of Almaty City Akimat
Case background facts
On November 11, 2020, Almaty City Akimat adopted Resolution No. 4/492 “On the relocation of the historical and cultural monument of local significance “Airport (International Airport).”” It is included in the State List of Historical and Cultural Monuments of Local Significance of Almaty under number 65. The list was approved by the Resolution of Almaty City Akimat dated March 17, 2021 No. 1/191.
The second paragraph of the Resolution states that Almaty City Department of Culture (hereinafter—the Department) must:
“1) ensure the integrity and safety of the monument during the relocation;
2) take other measures arising from this Resolution.”
On November 28, 2022, the ES contacted the Department with a request to provide environmental information on what specific measures the Department has taken to fulfil its obligations.
On December 12, a response was received that did not contain the requested information.
On October 19, 2023, the ES again contacted the Department with a request to provide documents confirming its actions to ensure the integrity and safety of the monument.
On November 10, a response was received from the Department, which stated that the relocation of the “monument is being carried out by LLP “Arkhrest,” which has a license for this type of work based on an agreement concluded with a branch of the company TAV Airport Holding … In connection with this, we ask that you contact the above-mentioned organizations.”
On 8 April 2024, the ES, considering that the Department had once again failed to provide the requested environmental information, sent a new request.
The Authority did not provide a response.
Legal violations
The Department violated the right of the ES to access timely, complete and reliable environmental information, as provided for in Article 4 of the Aarhus Convention, Article 13 and Article 17 of the Environmental Code of RK, Article 6, Article 7 and Article 9 of the Law of RK “On Access to Information.”
The Ecological Society went to court
On May 15, 2024, the ES applied to the SIAC of Almaty to protect the interests of an indefinite number of persons and the interests of the organization.
Demands
- To recognize the failure of the Department to provide environmental information as an illegal action.
- To impose on the Department the obligation to provide environmental information on the measures taken by it to ensure the integrity and preservation of the historical and cultural monument of local significance “Airport (International Lines Airport).”
On July 22, the court issued a ruling declaring the untimely provision of information to the ES illegal. The response from the Department, received by the ES after its appeal to the court, “is a formal reply, since it does not contain information about the actions taken by the defendant to implement the order.”
The court did not satisfy the demand of the ES to oblige the Department to report on the measures taken. The court explained, firstly, that at the court’s request, “the defendant fulfilled the plaintiff’s request, providing him with all the information, documents and materials he had, confirming the execution of the resolution in the part assigned to him.” However, this was what the defendant claimed. The judge had not seen the papers and did not know about their contents!
Secondly, “the court recognizes as justified the statements of the defendant’s representative regarding the absence of any documents other than those presented to the plaintiff and the court.” This is explained by the fact that “the fire in the building of Almaty City Akimat, which occurred in January 2022, is a well-known fact, and accordingly, the defendant’s claims about the loss of documentation, including those confirming the implementation of measures to enforce the resolution, are not questioned.”
In August, the Department provided the ES with the information it had.
The case has been closed.
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Case No. 3
on the inaction of the Akimat of the Medeu district of Almaty City, which does not fulfill its obligations for the improvement and sanitary cleaning of the container site, and on the failure of the Akimat to provide environmental information
Case background facts
Since January 9, 2024, employees of the ES have repeatedly identified violations of the planned regular sanitary cleaning in the Kensay gorge of the Medeu district of Almaty City. During inspections of the area, dumps of household and construction waste were discovered at a container site near the NN building on Shokaya Street. The violations were recorded by employees of the ES in photos on January 9, February 14, March 6, October 9 and November 11.
The ES has repeatedly appealed to the Akimat with a request to take measures to restore order in accordance with sanitary standards. The ES pointed out that near the container site grow Alatau saffron and Kolpakovsky’s iridodictyum, which are included in the Red Book of Kazakhstan.
Guided by paragraphs 1, 2, 4 and 5 of paragraph 2 of Article 13 of the Environmental Code of RK; paragraph 1 of Article 7 of the Law of RK “On Access to Information;” paragraph 15 of the Regulation on the municipal state institution “Apparatus of the Akim of the Medeu District of Almaty City;” Articles 4 and 9 of the Aarhus Convention; On October 17, the ES again contacted the Akimat. The appeal proposed taking the following measures:
– to remove waste from the container site;
– to clean up around the container site;
– to organize regular and more frequent waste removal from the container site;
– increase the number of containers;
– install temporary surveillance cameras near the specified site;
– conduct explanatory work with local residents and install warning posters.
Because of the inaction of Akimat officials until the moment of filing an application to the court, the situation has not changed.
Legal violations
The Akimat violated the right of citizens to an environment favorable for life and well-being and the right of the ES to access timely, complete and reliable environmental information, as provided for in Article 4 of the Aarhus Convention, Article 13 and Article 17 of the Environmental Code of RK, Article 6, Article 7 and Article 9 of the Law of RK “On Access to Information.”
The Ecological Society went to court
On November 21, the ES appealed to the SIAC of Almaty to protect the interests of an indefinite number of persons and the interests of the organization.
Demands
- To recognize the fact of systematic failure by the Akimat of Medeu District to fulfill the obligations stipulated by subparagraph 17) of paragraph 15 of the Regulation on the municipal state institution “Apparatus of the Akim of Medeu District of Almaty City” as inaction.
- To oblige the Akimat to carry out improvement and sanitary cleaning of the container site next to the NN house on Shokaya Street. To oblige the Akimat to report on the measures taken.
- To recognize the inaction of the Akimat, expressed in the failure to provide the ES with environmental information, as illegal.
Several preliminary court hearings were held in November and December.
The SIAC, guided by the norm of Article 30 of the APC, at the initiative of a representative of the Akimat of the Medeu District, involved the Department of Ecology and Environment of Almaty City of and LLP “Tartip” as interested parties.
Government agencies were irresponsible in preparing for the trial.
On December 25, the SIAC judge issued a ruling to impose a monetary penalty on the head of the Medeu District Akim’s Office for failure to fulfill procedural obligations and for the purpose of respecting the law and the court. The amount of the penalty is 73,840 tenge.
The trial continues.
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SECTION 2
Implementation of court decisions
In accordance with paragraph 2 of Article 21 of the Civil Procedure Code (hereinafter—CPC) and paragraph 2 of Article 18 of the APC, judicial acts that have entered into legal force are binding on all state bodies, local government bodies, public associations, other legal entities, officials and citizens without exception and are subject to execution throughout the territory of the Republic of Kazakhstan.
Case No. 1
on compelling Almaty City Akimat to establish a buffer zone
for the Ile-Alatau National Park
On May 31, 2023, the Judicial Collegium for Administrative Cases of the Supreme Court considered and fully satisfied the cassation appeal of the ES filed against the decision of the SIAC dated April 15, 2022 and the ruling of the Judicial Collegium for Administrative Cases of Almaty City Court dated September 7, 2022.
The Supreme Court:
– recognized the Akimat’s inaction in failing to establish a buffer zone for the Ile-Alatau National Park as illegal;
– imposed on the Akimat the obligation to establish a buffer zone in accordance with the procedure defined in Article 18 of the Law of RK “On Specially Protected Natural Areas;”
– replaced in the third paragraph of the operative part of the SIAC decision the words “consider the issue of providing” information with “provide a response to the request of October 28, 2021.”
On June 23, the ES, guided by Article 241 of the CPC, filed an application with the SIAC with a request to issue and hand over a writ of execution for the Supreme Court ruling, which entered into legal force on May 31, 2023.
On July 4, the SIAC responded that “A copy of the court decision and the ruling of the higher courts with a note on entry into legal force is being sent to Almaty City Akimat of for execution. The judicial act is subject to execution within one month from the date of its entry into legal force, of which the defendant must notify the court.”
On August 25, the ES, having become convinced that the Supreme Court’s ruling had not been implemented, again applied to the SIAC with a request to issue and hand over a writ of execution.
On September 12, the SIAC responded that “it is not possible to satisfy your application for the issuance of a writ of execution, since the provisions of Article 172 of the APC provide only for the compulsory execution of a court decision on the collection of a monetary sum. However, in the case under consideration, the above court decision did not resolve issues of collecting a monetary amount. You have the right to apply to the court with a statement on the imposition of a monetary penalty in the event of non-compliance with the court decision.”
On October 18, the ES, guided by Part 5 of Article 127, Part 3 of Article 171 of the APC, filed a second application to the SIAC with a request to impose a monetary penalty on the Akimat for failure to comply with the Supreme Court ruling in the amount of fifty monthly calculation indices.
On November 6, the SIAC reliably established that by November 6, the Akimat had not complied with the Supreme Court ruling, but the judge did not take procedural measures to impose a monetary penalty on the Akimat.
On November 15, the ES again filed an application with the SIAC with a request to provide information indicating the measures taken against the Akimat.
On November 20, SMAS responded that “on May 27, 2022, Almaty City Akimat sent information to the ES on the issue of establishing a buffer zone for the Ile-Alatau State National Nature Park.”
On December 6, the ES filed a statement with the SIAC, stating that this information was not true. In June-July 2023, the ES did not contact the Almaty City Department of Ecology and Environment regarding the establishment of a buffer zone for the Ile-Alatau National Park and did not receive a response.
By December 31, the ES had not received a response from the SIAC.
On June 4, 2024, the ES once again applied to the SIAC with a statement on the imposition of a monetary penalty on the Akimat.
On July 1, the SIAC again rejected the application. The judge again gave an arbitrary interpretation of Article 123 of the Land Code of PK, Articles 10 and 18 of the Law of RK “On Specially Protected Natural Areas” and the Supreme Court ruling of May 31, 2023. He again referred to the “Rules for the development of projects of natural-scientific and technical-economic justifications for the creation or expansion of specially protected natural areas, as well as adjustments to technical-economic justifications.” The judge seems not to notice that the Rules do not regulate the organization of protected areas of specially protected natural areas.
The ES has repeatedly emphasized that the Supreme Court’s ruling clearly states that “the literal content of the above-mentioned provisions of the Land Code and the Law [“On Specially Protected Natural Areas”] does not imply the existence of administrative discretion on the part of the local executive body, but provides for its obligation to establish buffer zones” along all external boundaries of the Ile-Alatau National Park.
Over the past year and a half, the ES has collected compelling evidence that the SIAC does not intend to take action against the Akimat. For this reason, on August 15, a statement was sent to the Supreme Court with a request to clarify:
– what procedural decisions the SIAC should make when considering an application for the imposition of a monetary penalty on the Akimat for systematic failure to comply with a court decision;
– the procedure for executing the Supreme Court ruling, which entered into legal force on May 31, 2023. The ES asked to consider the application on the merits, without forwarding it to the SIAC and Almaty City Court. The Supreme Court did not provide an explanation.
On November 28, the ES sent a letter to Almaty City prosecutor about the Akimat’s failure to comply with the Supreme Court’s ruling. The prosecutor’s office did not respond.
On December 24, Almaty City Department of Ecology and Environment sent a letter stating that “on July 26, 2024, an agreement was concluded between the National Park and BEREN COMPANY LLP for the development of projects for the creation of a buffer zone, with a completion date of work until December 31, 2024.
In this regard, after receiving the approved Natural Scientific Justification and Feasibility Study projects from the authorized body, Almaty City Akimat will take measures to develop and approve a resolution of Almaty City Akimat on the establishment of a buffer zone and a regime for the use of natural resources for the National Park on the territory of Almaty.”
Until the end of 2024, the buffer zone for the Ile-Alatau State National Park from the side of Almaty has not been established.
The execution of the Supreme Court ruling continues.
Rights and legal interests of the Ecological Society Green Salvation are defended in court by an attorney of Almaty City Board of Attorneys Omarbekova Alma Zhanatovna.