* Ecological Society Green Salvation (hereafter, GS)
SECTION No.1
No. 1
Case about recognizing the actions of the Forestry and Wildlife Committee, which provided untruthful environmental information, to be illegal (see Case No. 6, 2017).
Background. A cableway was built on the territory of the Ile-Alatau National Park behind the Talgar Pass. The GS believes that the requirements of the law «On Specially Protected Natural Territories» were grossly violated during its construction. The GS submitted inquiries to the Forestry and Wildlife Committee. A received response contained inaccurate information that this territory, allegedly, became a part of the national park after the forest management works of 2016. In the Republic of Kazakhstan, there was no normative legal act, which stated that boundaries of national parks are specified during forest management works.
Lawsuit in the interests of an undefined circle of persons and the state was filed to the Specialized Inter-Regional Economic Court (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».
— Paragraph 18 of the regulatory decision of the Supreme Court of November 25, 2016 No. 8 «On some issues of courts’ application of environmental laws of the Republic of Kazakhstan in civil cases».
Demands:
- To recognize the act of providing of untruthful information by the Committee to be unlawful.
- To oblige the Committee to provide the requested information in the full extent, including all seven points specified in the GS’s request.
- To make a private determination with regard to the head of the Committee, in accordance with the Article 270 of the Civil Procedural Code of the Republic of Kazakhstan (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.
On September 13, the Board refused to satisfy the complaint.
In violation of the paragraph 2, Article 224 of the Civil Procedural Code of the Republic of Kazakhstan, the Board judges did not investigate the evidence referred to by GS. They repeated the arguments of the court of the first instance and the apparent disinformation provided by the defendants. The defendant did not provide any evidence supporting his position. In fact, the case was not considered.
The judges actually accused the government of being incompetent, who allegedly arbitrarily, without carefully studying the issue of territory and borders, passed a resolution establishing the Ile-Alatau National Park.
On December 5, a petition on revision of judicial acts that entered into force was submitted to the Supreme Court in cassation order.
On January 8, 2018, after a preliminary examination of the petition, a judge of the Supreme Court refused to transfer it to the Cassation Board of the Supreme Court. The judge repeated the arguments of the courts of the first and appellate instances. The justification for the refusal was the judicial acts, not the norms of the laws: «The courts identified that «in the course of the forest management works, the boundaries of the national park were specified». In the Republic of Kazakhstan there is no normative legal act, which states that boundaries of national parks are specified during forest management works.
The case is closed. Reliable information is not provided.
* * *
No. 2
Case about acknowledging actions of the state municipal enterprise «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» along with the protocols of public hearings, to be unlawful (see Case No.7, 2017).
Background. Serious violations took place during public hearings concerning environmental impact assessment of a manufacturing facility for outdoor advertising «I …» SP. Residents made a sound recording of the hearings and its decoding. The authorities stated that it was necessary to hold repeated hearings.
After a few years, during preparation of a material for the newspaper «Vecherny Almaty», activists found out that in addition to their recording there are two other official protocols of the public hearings. That is, firstly, after the fact, the public hearings were recognized as valid, which the residents were not informed about. And, secondly, two protocols were fabricated, differing in content.
The lawsuit in defense of the interests of local residents and an indefinite number of persons was filed to the Bostandyk District Court of Almaty on July 28, 2017.
Department of Natural Resources and Regulation of Natural Resources Utilization was brought to court as a defendant, «U…» SP — as a third person.
Legal violations:
violation of the rights of the public to participate in the decision-making process on matters relating to the environment:
— Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;
— Subparagraph 4, paragraph 1, Article 13 of the Environmental Code.
Demands:
- To recognize the actions of the Department of Natural Resources and Regulation of Natural Resources Utilization to be illegal.
- To recognize two protocols of public hearings on the review of the project «Environmental Impact Assessment» for the production shop of «U …» SP to be illegal and to cancel them.
In August and September, the case was heard.
On September 19, the court denied satisfying the lawsuit demands.
- In violation of paragraph 2, Article 224 of the Civil Procedure Code of the Republic of Kazakhstan, the judge did not investigate the evidence referred to by GS. He ignored the fact that the two official protocols differ in content, and it is not clear which of them is authentic. The defendant was unable to provide the originals of these protocols to the court. In addition, the protocols do not correspond to the content of the sound recording made by the residents during the hearings. The court’s decision does not even mention presence of this recording in the case materials. The judge ignored the fact that the residents found out about existence of two different official protocols only after simultaneous inquiries to the Department of Natural Resources and Regulation of Natural Resources Utilization and to the archive of the Bostandyk District Court of Almaty.
- The judge did not take into account the decision of the Bostandyk District Court of 2014, which states that public hearings were not held at all. The event referered to as public hearings by the defendant, was found illegal by the state authorities. Consequently, all the protocols of this event are illegal.
- In violation of the paragraph 1, Article 224 of the Civil Procedure Code of the Republic of Kazakhstan, the judge did not justify his decision, he did not refer to any laws or facts revealed during the court hearings. One of the main arguments on which the decision is based, makes one question the judge’s professional qualities. In his decision, the judge writes that the claimant, addressing «the court against the defendant in the interests of K …, could not have been unaware of the violation of rights by the defendant». However, the judge does not specify that in 2014, the subject of the lawsuit was completely different.
On October 20, an appeal against the decision of the Bostandyk District Court was submitted to the Civil Affaires Appeallate Board of the Almaty City Court.
On December 4, the Board refused to satisfy the appeal.
In violation of the paragraph 2, Article 224 of the Civil Procedural Code of the Republic of Kazakhstan, judges did not investigate the evidence referred to by GS. They ignored the fact that the two official protocols differ in content, and it is unclear which of them is authentic. Judges did not require the defendant to provide the court with the originals of the two protocols. In addition, the judges did not take into account the fact that the protocols do not correspond to the content of the sound recording made by the residents at the public hearing. The decision of the Board does not even mention the presence of this record in the case materials. The judges ignored the fact that the residents found out about the existence of two different official protocols only after simultaneously addressing the Department of Natural Resources and Regulation of Natural Resources Utilization and to the archives of the Bostandyk District Court of Almaty.
On April 18, 2018, a petition was sent to the Supreme Court through a cassation procedure for reviewing judicial acts that entered into legal force.
On June 4, a judge of the Supreme Court, having previously considered the petition, refused to submit it to the cassation instance of the Supreme Court. In violation of the paragraph 2 of Article 224 of the Civil Procedural Code of the Republic of Kazakhstan, the judge did not examine the evidence relied on by the GS. He ignored the fact that the two official protocols differ from each other in content and it is unclear which one is the original. The judge did not require the defendant to submit the originals of the two protocols to the court. In addition, the judge did not take into account the fact that the protocols do not correspond to the content of the sound recording, which was made by residents at the public hearing. In fact, the decision of the judge is based on inaccurate information.
When considering this civil case, courts of all instances, including the Supreme Court, did not apply the norms of the Aarhus Convention, which take precedence over the laws of the Republic of Kazakhstan.
Paragraph 18 of the normative resolution of the Supreme Court of November 25, 2016 No. 8 «On certain matters of application of environmental legislation of the Republic of Kazakhstan in civil cases by courts» was not taken into account. It states that when considering environmental disputes, Article 6 of the Aarhus Convention should be applied.
The case is closed. Violations are not eliminated.
* * *
No. 3
Case about acknowledging the actions of the state municipal enterprise «Department for control over utilization and protection of lands of the city of Almaty», which did not provide the requested environmental information, to be unlawful (see Case No.8, 2017).
Background. In the Butakovka Gorge on the territory of the Ile-Alatau National Park, there is an abandoned sports complex that collapsed in 2004. Ruins represent a danger to people, damage the ecological systems of the national park, and increase the threat of a fire.
The GS sent a request to the Department for control over utilization and protection of lands of the city of Almaty, in order to clarify measures taken to demolish the ruins and normalize the ecological situation in the gorge. The Department ignored the request.
The lawsuit in defense of interests of undefinite number of persons and the state was submitted to the Specialized Inter-Regional Economic Court (SIEC) of Almaty on October 5, 2017.
Department for control over utilization and protection of lands of the city of Almaty was brought to court as the defendant.
Legal violations:
Violation of the rights of the public to access environmental information, in particular the norms of:
— the paragraph 2, Article 20 of the Constitution of the Republic of Kazakhstan;
— the Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;
— the subparagraph 7, paragraph 1, Article 14 and paragraph 1, Article 163 of the Environmental Code;
— the paragraph 4, Article 6 of the Law «On Access to Information».
— Paragraph 18 of the regulatory decision of the Supreme Court of November 25, 2016 No. 8 «On some issues of courts’ application of environmental laws of the Republic of Kazakhstan in civil cases».
Demands:
- To acknowledge the failure to provide environmental information by the Department for control over utilization and protection of lands of the city of Almaty to be unlawful.
- To require the Department to provide the requested environmental information to the Ecological Society «Green Salvation».
- To make a private determination for the Head of the Department, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
On November 24, the court denied satisfying the lawsuit demands, referring to the fact that the defendant handed the reply to GS representative in the court. The defendant could not prove that GS received the reply by mail in a timely manner. However, the judge admitted that the reply does not correspond to «the subject of inquiry». That is in fact, a reply had not been received by GS. Probably, in order to somehow smooth out the apparent contradictions in the court’s decision, the judge made a private determination of the state municipal enterprise «Department for control over utilization and protection of lands of the city of Almaty». According to the determination, the Department must provide a full and reliable reply to GS within one month.
On December 22, an appeal against the decision of the SIEC of Almaty was submitted to the Appeallate Board of the Almaty City Court.
On January 31, 2018, the Appeallate Board issued a resolution about satisfaction of the demands of the GS.
The actions of the Department for control over utilization and protection of lands of the city of Almaty, which did not provide environmental information to the GS, were found to be illegal.
The court obliged the Department to provide the requested information.
On February 19, the SIEC of Almaty issued a writ of execution to enforce the court decision.
In March, the Department sent a petition to the Supreme Court through a cassation procedure about revision of judicial acts, which entered into legal force.
On May 28, after reviewing the petition, a judge of the Supreme Court refused to submit it to the cassation instance of the Supreme Court. The decision states: «The appellate court made a correct conclusion that the reply provided by the Department at the request of the Ecological Society cannot be acknowledged as compliant with the requirements of the legislation, that the answer of July 14, 2017 No. 02.1-04 / ЗТ-К-136 does not contain complete and reliable information on the requested issue, and also is not relevant to the subject of the request».
The case is closed. Executive procedure continues. (See the Section No. 2. Implementation of court decisions, case No. 3).
* * *
No. 4
Case about acknowledging of the unlawful actions of the republic state enterprise «Department of Public Health Protection of the city of Almaty», which did not provide the requested environmental information (see Case No.9, 2017).
Background. Because of the constant emissions of dry cement from the enterprise «U …» LLP, at the request of the local residents, Environmental Society «Green Salvation» appealed to the Department of Public Health of Almaty with a request to provide a sanitary and epidemiological report issued to «U …» LLP. The department denied providing the GS with the information explaining it as if the sanitary-epidemiological report is a trade secret.
The lawsuit in defense of the interests of an undefinite number of persons and the state was filed to the Specialized Inter-Regional Economic Court of Almaty on October 26, 2017.
The republic state enterprise «Department of Public Health Protection of the city of Almaty», was brought to court as a defendant.
Legal violations:
violation of the rights of the public to access environmental information, in particular the norms of:
— the paragraph 2, Article 20 of the Constitution of the Republic of Kazakhstan;
— the Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;
— the subparagraph 7, paragraph 1, Article 14 and paragraph 1, Article 163 of the Environmental Code;
— the paragraph 4. Article 6 of the Law «On Access to Information».
— Paragraph 18 of the regulatory decision of the Supreme Court of November 25, 2016 No. 8 «On some issues of courts’ application of environmental laws of the Republic of Kazakhstan in civil cases».
Demands:
- To acknowledge the failure to provide environmental information by the Department of Public Health Protection of the city of Almaty, to be an illegal action.
- To oblige the Department to provide GS with the requested environmental information in the form of a copy of the sanitary and epidemiological certificate issued by LLP «U …».
- To make a private determination for the Head of the Department, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
On November 1, the judge issued a determination about returning the lawsuit due to the unpaid state fee. He did not take into account the subparagraph 8-2) of the Article 541 of the Tax Code, according to which claimants are exempt from payment of the state fee when filing lawsuits in defense of rights, freedoms and lawful interests of individuals and legal entities, including those of an undetermined number of persons, on environmental protection and the use of natural resources, and the interests of the state. Neither did he recall the paragraph 15 of the normative Resolution No. 8 of the Supreme Court dated on November 25, 2016, «On Some Issues of Application of Environmental Legislation by the Courts», which states the same.
On November 9, a private complaint was submitted to the Appeallate Board of the Almaty City Court.
On December 6, the Board refused to satisfy the complaint. In violation of the paragraph 2, Article 224 of the Civil Procedural Code of the Republic of Kazakhstan, the judge, did not investigate the evidence referred to by GS. In the court’s ruling, the judge pointed out that by requesting specific environmental information in the interests of an indefinite number of persons, GS defends its own rights! He then repeated the arguments of the court of the first instance.
On December 28, after paying the state fee, the GS re-submitted the lawsuit to the SIEC of Almaty.
In January 2018, the case was opened.
On February 15, the judge denied the lawsuit demands.
Firstly, in violation of the paragraph 3, Article 2 of the Aarhus Convention and subparagraph 7, paragraph 1, Article 159 of the Environmental Code, the judge did not recognize the sanitary and epidemiological report to be environmental information.
Secondly, in violation of the Article 4, paragraph 4 of the Aarhus Convention, Article 163, paragraph 1 of the Environmental Code, Article 88, paragraph 1, subparagraph 8 of the Code of the Republic of Kazakhstan on People’s Health and the Healthcare System, Article 6, paragraph 4 of the Law «On Access to Information», the judge recognized the sanitary and epidemiological report to be a trade secret.
Thirdly, in violation of the article 2, paragraph 5 of the Aarhus Convention, the judge refused to recognize the GS to be the «public concerned» and did not recognize the organization’s right to receive environmental information.
Fourthly, in violation of article 9, paragraph 2 (a), of the Aarhus Convention, article 8, paragraph 2, of the Civil Procedure Code of the Republic of Kazakhstan, and Article 14, paragraph 1, subparagraph 1-1) of the Environmental Code, the judge did not recognize the right of the GS to protect the rights, freedoms, and lawful interests of individuals and legal entities, including the interests of an undetermined number of persons.
The judge ignored all of the above provisions of the Aarhus Convention, that is, the ruling of the Supreme Court of November 25, 2016, «On some issues of courts’ application of environmental laws of the Republic of Kazakhstan in civil cases».
On March 14, the GS sent an appeal to the Appeallate Judicial Board for Civil Matters of the Almaty City Court.
On May 23, the board fully satisfied the complaint of the GS. The judges acknowledged that:
— the requested information (sanitary-epidemiological conclusion) is environmental information;
— it is not a commercial secret.
The board decided: «The case decision of the specialized inter-district economic court of Almaty of February 15, 2018, is to be changed. The court decision in the part of refusal to satisfy the statement on acknowledging of the action of the Department of Public Health of the City of Almaty as illegal to be cancelled. A new decision to satisfy the complaint is to be made in this part.»
To recognize as illegal the actions of the Department of not providing of environmental information in the form of a copy of the sanitary-epidemiological conclusion.
To oblige the Department to eliminate the violations of the rights and interests of the public association.
On June 12, the SIEC of Almaty issued a writ of execution to enforce the court decision.
The case is closed. Executive procedures continue. (See the Section No. 2. Implementation of court decisions, case No. 4).
* * *
No. 5
Case about acknowledging actions of the state municipal enterprise «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» which did not provide the requested environmental information, to be unlawful (see Case No.10, 2017).
Background. In the summer of 2017, under the order of the Department of Natural Resources and Environmental Management of Almaty, the reconstruction of the riverbed of the Kimasar River was started. Due to the absence of special signs indicating the border of the Ile-Alatau National Park on the ground, it is impossible to determine on whose territory the reconstruction (city or national park) was carried out. The GS believes that during the reconstruction, the requirements of the law «On Specially Protected Natural Territories» were violated. In this regard, the GS sent a letter to the Department. The Department provided incomplete information, in which there were no answers to the main questions posed by the GS.
Lawsuit in the interests of an undefinite number of persons and the state was filed to the Specialized Inter-Regional Economic Court of Almaty on November 2, 2017.
The state municipal enterprise «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» was brought to court as a defendant.
Legal violations:
Violation of the rights of the public to access environmental information, in particular the norms of:
— the paaragraph 2, Article 20 of the Constitution of the Republic of Kazakhstan;
— the Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;
— the subparagraph 7, paragraph 1, Article 14 and paragraph 1, Article 163 of the Environmental Code;
— the paragraph 4, Article 6 of the Law «On Access to Information».
— Paragraph 18 of the regulatory decision of the Supreme Court of November 25, 2016 No. 8 «On some issues of courts’ application of environmental laws of the Republic of Kazakhstan in civil cases».
Demands:
- To acknowledge the failure to provide environmental information by the state municipal enterprise «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» to be an illegal action.
- To oblige the Department to provide GS with the requested environmental information regarding eligibility for reconstruction of Kimasar riverbed with copies of the following documents:
— reconstruction project;
— environmental impact assessment of the planned economic activity;
— minutes of public hearings on this project;
— conclusion of the state environmental assessment;
— forest pathological examination of vegetation and permission to cut down trees in the specified territory, including a plan for compensatory planting.
- To make a private determination for the Head of the Department, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan..
On December 20, the court ruled to satisfy the claimant’s demands.
The actions of the Department of Natural Resources and Environmental Management of Almaty, which did not provide environmental information to the GS, were declared illegal.
The court ordered the Department to provide the requested information.
However, a private determination about the Head of the Department, was not issued.
On January 31, 2018, the Department filed an appeal against the decision of the SIEC of Almaty.
On March 28, the Appeallate Judicial Board of the Almaty City Court left the decision of the SIEC of December 20, 2017, without changes, and the complaint of the Department was dismissed.
On April 16, the SIEC of Almaty issued a writ of execution to enforce the court decision.
The case is closed. Executive procedures continue. (See the Section No. 2. Implementation of court decisions, case No. 5).
* * *
No. 6
Case about acknowledging of unreliable information provision by the MSE «Department for control over use and protection of lands of the city of Almaty» to be an illegal action, and about obliging it to provide complete and reliable environmental information.
Background.
On May 21, 2018, a citizen K… and other residents of Velikolukskaya street of Turksib district of the city of Almaty, addressed the head of the Municipal State Enterprise (MSE) «Department of land relations of the city of Almaty» with a statement. It was forwarded for consideration on the merits to the MSE «Department for control over use and protection of lands of the city of Almaty» (hereinafter — Department).
On July 4, citizen K… received a response from the Department, which states that the land plot at the requested address belongs to citizen Y… with a designated purpose — non-residential premises — and is located in a commercial zone.
In accordance with the official response of the MSE «Department of Architecture and Urban Planning of the City of Almaty», with an attached diagram and a reference to the decision of the Maslikhat of Almaty, the indicated land plot is located in a residential zone.
Due to the contradictions in the responses of the state authorities, a lawsuit was filed to the court.
The lawsuit in the interests of citizen K… was submitted to the Almaly District Court No.2 of the city of Almaty on September 14, 2018.
MSE «Department for control over use and protection of lands of the city of Almaty» is brought to the court as a defendant.
Legal violations:
Violated the right of the citizen K… on access to environmental information, in particular, the following norms:
— 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, paragraphs 1, Article 13 and paragraphs 1, Article 163 of the Environmental Code;
— paragraph 4, Article 6 and Article 18 of the Law «On Access to Information»;
— paragraph 18 of the normative resolution of the Supreme Court of November 25, 2016 No. 8 «On some questions of application by courts of environmental legislation of the Republic of Kazakhstan in civil matters».
Demands:
- To acknowledge the provision of misleading information by the Department to the Ecological Society to be an illegal action.
- To oblige the Department to provide the Ecological Society «Green Salvation» with the requested environmental information.
- To issue a private court ruling in relation to the head of the Department, in accordance with Article 270 of the Civil Procedural Code.
On October 2, review process of the case began.
On November 2, the court rejected the application. The judge allowed an arbitrary interpretation of the concepts of the law «On architectural, urban planning, and construction activities in the Republic of Kazakhstan» and ignored the decision of the XXVI session of Maslikhat of Almaty dated on November 20, 2006, No. 284, namely: «Plan for implementation of urban planning regulations for development of functional areas of the city of Almaty».
For example, the court decision states that the master plan of the city development, that establishes zoning, planning structure, and functional organization of the territory, is only a plan, an intention! And that there is no evidence in the case file that «at the present time, these urban planning regulations have been implemented or their implementation has begun on the territory of Turksib district…»
The judge simply dropped the question of zoning.
On December 7, the ES filed an appeal to the Appeals Board of the Almaty City Court.
* * *
No. 7
Case about acknowledging the inaction of the MSE «Department for control over use and protection of lands of the city of Almaty» to be illegal and obliging it to fully eliminate the allowed violations
Background.
After studying the situation on-site and the letter provided by the Department dated on October 12, 2018, the Ecological Society came to the conclusion that the Department is not fulfilling its direct responsibilities in controling protection and use of the lands. The ruins located on an abandoned site within the Ile-Alatau National Park pose a serious threat to lives of the park visitors. The deteriorated building is turning into a dumpsite for construction waste, which is being spread by wind and washed out by water. This damages ecosystems of the park and its tourist attractiveness.
The lawsuit in the interests of undefined number of individuals and the state was filed to the SIEC of the city of Almaty on November 28, 2018.
The «Department for control over use and protection of lands of the city of Almaty» is brought to court as a defendant.
Violations:
According to the Article 148 of the Land Code and the requirements of the paragraphs 15 and 16 of the Provision on the MSE «Department for control over use and protection of lands of the city of Almaty», the Department has the right to:
— submit materials on violations of land legislation to the relevant authorities to resolve the issue of bringing those responsible to justice;
— make decisions on administrative penalty for violation of land legislation;
— prepare and bring claims to the court on issues of compensation for damage as a result of violation of land laws, of expropriation of land plots that are not used for their intended purpose or used in violation of the law;
— give binding instructions on land protection and elimination of violations of land legislation to landowners and land users.
In the case mentioned above, the Department took no action.
Demands:
- To recognize as illegal the inaction of the «Department for control over use and protection of lands of the city of Almaty».
- To oblige the Department to eliminate the violations in full.
- To issue a private court ruling in relation to the head of the Department, in accordance with the Article 270 of the Civil Procedural Code.
On December 26, consideration of the case began.
* * *
No. 8
Case about acknowledging the act of providing of untruthful information by the MSE «Department of tourism and external relations of the city of Almaty» to be an illegal action and obliging it to provide accurate environmental information.
Background.
According to the opinion of the Department, stated in its reply of November 26, 2018 to the request of the Ecological Society «Green Salvation», «… the term «zero» construction option was put into use and appeared due to appeals and speeches of representatives of the GS.
This is not true, that is, it is false information. According to the paragraph 2, sub-paragraph 5 of the Instructions for Conducting of Environmental Impact Assessment of June 28, 2007, environmental impact assessment is carried out on the basis of the following principles:
«1) obligation – Environmental Impact Assessment (EIA) is obligatory for any types of economic or other activity which can have a direct or indirect impact on the environment and public health.
… 3) alternativeness – the impact assessment is based on mandatory consideration of alternative design solutions, including the design solutions option, including the option of rejecting the planned activity («zero» option).»
The term «zero» option of construction was introduced and emerged due to the current norm of the aforementioned Instruction approved by an order of the Minister of Environmental Protection, and not due to appeals and speeches of representatives of the GS.
We consider the action of the Department which provided the false information to be an illegal action violating the rights of the Ecological Society provided for by the subparagraph 7 of paragraph 1 of Article 14 of the Environmental Code, namely: the right «to receive timely, complete and reliable information from state bodies and organizations.»
The lawsuit in the interests of the Ecological Society and an indefined number of individuals was filed on December 10, 2018 to the SIEC.
MSE «Department of tourism and external relations of the city of Almaty» is brought to court as a defendant.
Legal violations:
The right of the public to access environmental information has been violated, in particular, the norms:
— 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;
— sub-paragraph 7 of paragraph 1 of Article 13, sub-paragraph 7 of paragraph 1 of Article 14, and paragraph 1 of Article 163 of the Environmental Code;
— paragraph 4 of Article 6, Article 18 of the Law «On Access to Information»;
— paragraph 18 of the normative resolution of the Supreme Court of November 25, 2016 No. 8 «On some questions of application by courts of environmental legislation of the Republic of Kazakhstan in civil matters».
Demands:
- To recognize the provision of false information by the Department of tourism and external relations of the city of Almaty as an illegal act.
- To oblige the Department to provide the Ecological Society with reliable environmental information.
- To issue a private court ruling in relation to the head of the Department, in accordance with Article 270 of the Civil Procedural Code.
On January 4, 2019, consideration of the case began.
The representative of the Department did not provide a response to the lawsuit, which is a violation of Article 166 of the Civil Procedural Code.
* * * * * *
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).
Background. In connection with the constant emissions of dry cement from the enterprise «U …» LLP, local residents with the assistance of the Ecological Society «Green Salvation» applied to the court demanding to provide information about the sanitary protection zones of «U …» LLP and neighboring industrial enterprises, terrains, special signs indicating the boundaries of sanitary protection zones.
In 2013, the Supreme Court adopted a resolution obliging the Department of Public Health of Almaty (formerly the Department of Sanitary and Epidemiological Control in Almaty) to satisfy the claimants’ demands. Since 2014, local residents, with the assistance of the GS, are seeking to implement the Supreme Court decision.
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
- 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.
- 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.
On July 11, because of dismissal of the bailiff K …, the enforcement proceedings were transferred to a new bailiff T …
On July 20, the Civil Affaires Appeallate Board of the Almaty City Court refused to satisfy the complaint of the Department of Consumer Rights Protection.
On August 25, the bailiff introduced a proposal to correct the debtor’s name, since the Department of Consumer Rights Protection of the city of Almaty was renamed to the Department of Public Health Protection of the city of Almaty on February 17, 2017. By a court decision of September 21, the debtor was renamed.
On September 25, the debtor was asked to enforce the judicial act.
On October 24, 2017, the Department submitted a private complaint with a request to revoke the determination of the Medeu District Court of Almaty dated on September 21, 2017 about changing the name of the debtor. The applicants of the enforcement proceeding filed a statement to the Almaty City Court about recognizing them as the third parties on the part of the defendant, who do not make independent claims.
By determination of the Almaty City Court, the applicants are recognized and brought to trial as a third party. This allowed them to give a full explanation on the case. The court was submitted with an objection to the private complaint of the Department and a petition to include written documents to the materials of the civil case as additional evidence that is essential to the proper resolution of the case.
On February 5, 2018, by a determination of the Appeallate Board of the Almaty City Court, the determination of the Medeu district court of Almaty was left unchanged, and the private complaint of the Department was dismissed.
In February, the Department submitted a petition to the Supreme Court with a request to review all judicial acts issued on this case.
By a resolution of the Supreme Court dated on March 12, the Department was denied in a review of the determination of the Medeu District Court of Almaty of September 21, 2017, and the determination of the Civil Affaires Appeallate Board of the Almaty City Court of February 5, 2018, in a cassation order.
In March, the Department again submitted a private complaint to the Medeu District Court of Almaty against the actions of the bailiff. In it, the Department refers to the arguments that have been repeatedly cited in the complaints previously filed with the courts of all instances.
On April 16, Medeu District Court of Almaty refused to meet the demands of the Department in full.
In May, the claimants appealed to the Almaty Prosecutor’s Office with a request to check why the judicial act was not being executed. The Deputy Prosecutor of Almaty informed them that on April 25, 2018, the enforcement proceedings were discontinued due to their full implementation. However, the bailiff did not inform the claimants about this. They appealed to the bailiff with a request to provide a copy of the decision to terminate the enforcement proceedings of April 25, 2018.
On May 15, the bailiff handed them a copy of the above mentioned ruling. The claimants appealed to the Medeu District Court of Almaty, demanding to recognize the ruling as illegal and cancel it.
On June 18, the Medeu District Court of Almaty, having considered the complaint, issued a ruling on termination of the proceedings, referring to the fact that this complaint is not a subject for civil proceedings.
The claimants filed a private complaint against the court ruling in accordance with Article 429 of the Civil Procedural Code of the Republic of Kazakhstan to the Appeals Board of the Almaty City Court. When issuing the litigated ruling, the court violated the requirements of the existing laws, in particular, paragraph 1 of Article 8, paragraph 1 of Article 250 of the Civil Procedural Code of the Republic of Kazakhstan and Articles 3, 10, 16, 50, and 127 of the Law «On Enforcement Proceedings and the status of bailiffs».
On August 2, the Appeals Board of the Almaty City Court cancelled the ruling of the Medeu District Court of Almaty on termination of the enforcement proceedings of the case and sent it for a new review to the Medeu District Court of Almaty from the stage of acceptance of the complaint.
On September 18, the Medeu District Court of the city of Almaty declared illegal the action of the bailiff of the Department of Justice on enforcement of non-proprietary requirements when issuing the ruling of April 25, 2018 on termination of the enforcement proceedings.
The court ordered the bailiff to eliminate in full the violations of the rights of claimants and take measures aimed at fulfilling the requirements of the executive document.
In November, the Department of Public Health of the city of Almaty filed a request to the Medeu District Court for renewal of the missed deadline for filing an appeal against the decision of the Medeu District Court of Almaty of September 18, 2018.
On December 11, the court refused to satisfy the Department’s request for renewal of the missed deadline for filing an appeal.
The case is closed. Executive proceeding continues.
* * *
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).
Background. An unauthorized dump site was formed on the territory of an abandoned boiler house in the village of Besagash, Almaty oblast. Despite several court decisions in favor of local residents, the ruins and dump site are not liquidated. Since 2016, local residents, with the assistance of the GS, are striving to implement the decisions of the courts.
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.
On August 10, the head of the Akim’s Office of the Talgar district of Almaty oblast was repeatedly sent an inquiry about measures taken to clean up the dump and demolish the destroyed boiler house.
On August 21, a reply was received; it stated that the dump will be cleaned up by the owner in the near future.
Not implemented. The executive proceeding is terminated.
* * *
No. 3
Case about acknowledging the actions of the state municipal enterprise «Department for control over utilization and protection of lands of the city of Almaty», which did not provide the requested environmental information, to be unlawful (See Section 1, case No. 3)
State bailiff of the Division for execution of non-property related requirements of the Department of Justice of Almaty has repeatedly handed the notice of voluntary execution of the court decision to the head of the Department for control over utilization and protection of lands of the city of Almaty. The Department for control over utilization and protection of lands of the city of Almaty requested the GS to clarify the list of requested documents. The GS sent the list to the defendant. However, up until July 10, the information was not provided.
On July 12, the bailiff handed the defendant another notice. It defined the deadline for voluntary execution of the decision — until July 20, 2018.
If the court decision is not executed, the defendant will be brought to administrative responsibility. They will be charged a penalty for each day of non-execution of the decision. This was officially communicated to the defendant by the bailiff.
On August 20, a letter about bringing the debtor to administrative responsibility due to the malicious non-fulfillment of the court decision and the deliberate misleading of the bailiff was sent to the bailiff.
On August 21, the ES received a reply from the Department of Justice of Almaty, which stated that «on the basis of your petition regarding the Department for control over utilization and protection of lands of the city of Almaty, a request was sent for immediate execution of the requirements of the judicial act until September 5, 2018, with an attached petition where your reasons and what kind of environmental information the debtor must provide are stated.»
On October 12, the Department provided the bailiff with the same answer which was previously acknowledged by the court to be false.
The inaction of the Department was appealed by the GS to the Specialized Inter-Regional Economic Court of Almaty, in accordance with Article 292 of the CPC.
The case is closed. The requested information was not received. Executive proceedings were discontinued due to filing of a new lawsuit to the court.
* * *
No. 4
Case about acknowledging of the unlawful actions of the republic state enterprise «Department of Public Health Protection of the city of Almaty», which did not provide the requested environmental information (See Section 1, case No. 4).
State bailiff of the Division for execution of non-property related requirements of the Department of Justice of Almaty handed the notice of voluntary execution of the court decision to the head of the Department of Public Health Protection of the city of Almaty. However, until July 10, the information was not provided.
On July 10, the bailiff received a letter from the Department stating that the Department considers the judicial act issued in favor of the GS to be illegal and indicates that it did not violate the rights of the GS. Instead of executing the court decision, the Department is engaging in bureaucracy, giving an assessment to judicial acts.
On July 13, the bailiff handed the defendant another notice. It defines the deadline for voluntary execution of the decision — until July 20, 2018.
In case of non-execution of the court decision, the defendant will be brought to administrative responsibility. They will be charged a penalty for each day of non-execution of the decision. This was officially communicated to the defendant by the bailiff.
On August 22, a letter about bringing the debtor to administrative responsibility due to the malicious non-fulfillment of the court decision and the deliberate misleading of the bailiff was sent to the bailiff..
On October 16, a letter about bringing the debtor to administrative responsibility due to the malicious non-fulfillment of the court decision was sent again to the bailiff.
On October 24, in accordance with Article 235 of the CPC, a statement was submitted to the Almaty City Court to correct misprints allowed in the ruling of the judicial board.
On November 21, the Appellate Board of the Almaty City Court considered the above-mentioned statement of the GS. During the court session, a representative of the Department provided the GS with a copy of the sanitary-epidemiological conclusion on the project «Maximum Permissible Emissions», and not on the project to establish a sanitary protection zone.
On November 30, the GS sent a request to the Department asking for a copy of the sanitary-epidemiological conclusion on the project to establish a sanitary protection zone.
On December 14, 2018, the Department provided a copy of the sanitary-epidemiological conclusion on the project to establish a sanitary protection zone.
The case is closed. All requested information was received.
* * *
No. 5
Case about acknowledging actions of the state municipal enterprise «Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty» which did not provide the requested environmental information, to be unlawful (see Section 1, case No. 5).
On April 16, 2018, the SIEC of Almaty issued a writ of execution to enforce the court decision.
State bailiff of the Division for execution of non-property related requirements of the Department of Justice of Almaty initiated enforcement proceedings and handed the notice of voluntary execution of the court decision to the head of the Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty.
On 6 June, the Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty provided a part of the documentation requested by the GS, which was insufficient to make a decision.
On June 21, due to the fact the provided information was incomplete; the GS sent a letter to the bailiff asking to assure the full implementation of the court decision.
On July 12, the bailiff handed the defendant another notice. It defines the deadline for voluntary execution of the decision — until July 18, 2018.
In case of non-execution of the court decision, the defendant will be brought to administrative responsibility. They will be charged a penalty for each day of non-execution of the decision. This was officially communicated to the defendant by the bailiff.
On August 7, a letter was sent to the bailiff due to the fact that the Department did not provide all the documentation requested by the GS.
On September 18, a letter about termination of the enforcement proceedings due to provision of all requested information by the defendant was sent to the bailiff.
The case is closed. All requested information is received.
* * *
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
* * *
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
Subscribe to our updates
Hundreds of residents of Almaty and other regions of Kazakhstan whose environmental rights have been violated are contacting our organization. We try to help them solve their problems.
In Paris, Berlin, Vienna, there are special informational services. Each tree has its number and electronic code. This allows to receive information about it through the Internet.
The city authorities have repeatedly promised to create a similar map for Almaty. Tree inventory was conducted, developers were involved. In paragraph 22 of the new “Rules for the maintenance and protection of green vegetation of the city of Almaty” in 2018, it is stated that the catalogue of green vegetation is created for:
So, what do the new Rules represent?
Paragraph 39 of the Rules is simply confusing. It says: «Cutting down trees of historical or unique aesthetic value, species of trees and shrubs included in the Red List is prohibited.» Does this rule apply to all land plots? Or private owners can ignore this rule? No answer!
Why about 500 thousand trees in the city are in emergency conditions or are sick? It is easier to answer the question: why are there so few of them?
Thirdly, it is well known that without water, trees weaken and become more vulnerable to pests and diseases. Local parasites are joined by «imported» ones, which come to us in a variety of ways.
Point and compacted development against trees
An important event marked the history of the public campaign “Protect Kok Zhailau”.
According to the Akimat of Almaty, on October 13, Jasyl Almaty conducted a tree planting event on the mountain Kok-Tobe. About 500 people, including 200 volunteer students, took part in the event. Overall, 40 thousand Sievers apple tree seedlings and 500 thousand bulbs of tulips of “Kazakhstan” and “Nursultan Nazarbayev” varieties were planted. (
On October 17, we visited Kok-Tobe. We were struck to the core by what we saw. Therefore, on October 18, we visited the planting site again, but this time we invited news reporters.
It should be noted that the Sievers apple tree is a threatened plant included in the Red List; many scientists and specialists from many countries have been struggling for many years over restoration of this species. It is extremely puzzling to witness this kind of attitude to the Red List plant, listed under No.104 in the “List of rare and endangered species of plants”, approved by the Government of the Republic of Kazakhstan dated October 31, 2006, No. 1034.
In late August, we once again visited the Talgar settlement. Honestly, before every trip to this World Heritage Site, we feel worried. Is everything all right there, will there be any unpleasant surprises?
People cannot live without those genuine (and not surrogate) good things that only nature can give them: sun, earth, air, water, grass, trees, animals… People go to the mountains, go out of the city into the steppe to fully enjoy all these good things. To rest their souls at the sight of the majestic pictures of nature. Meanwhile, some ideologists of “developing and improving” of our mountains suggest that we squeal with delight at the sight of “super cool toilets”, “hockey boxes with artificial ice”. Don’t we already have enough of this in the city? Or are we threatened to disappear as a species, if we do not spend several thousand tenge in another cafe?
“In modern scientific literature, three to six possible places of origin of apricot are distinguished. Among them, the most likely initial center is the Tien Shan region in China.” At the present time, in the wild, it has only been preserved in the Himalayas, the Tien Shan and in the western part of the North Caucasus (1).
The rapid reduction in the number of wild apricot trees led to the fact that it was included in the Red List of threatened species of Kazakhstan. Under No. 117, it was included in the “List of rare and endangered species of plants and animals”, approved by the Government of the Republic of Kazakhstan dated on October 31, 2006, No. 1034. In the Red List of the International Union for the Conservation of Nature of Threatened Species, it is classified as “in a dangerous state” (5).
The Convention on Biological Diversity also protects genetic resources. It was approved by the Resolution No. 918 of the Cabinet of Ministers of the Republic of Kazakhstan dated on August 19, 1994, and takes precedence over national legislation. The objectives of the Convention are “the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.”
Appeal to the President of the Republic of Kazakhstan Kasym-Zhomart Tokayev
The public campaign in defense of the Kok-Zhailau natural boundary has been going on in Almaty for more than 8 years.