* Ecological Society Green Salvation (hereafter, GS)
SECTION No.1
No. 1
Case about acknowledging of inaccurate information provision by the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» to be an illegal action, and about obliging it to provide complete and accurate environmental information (see the case No. 6, 2018).
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 of 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 (local representative body), 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 GS filed an appeal to the Appeals Board of the Almaty City Court.
On March 6, 2019, the Board cancelled the decision of the District Court and passed the case to the court of the first instance for a new trial by a different panel of judges.
The ruling indicates that during the case trial the court did not consider the Aarhus Convention provision and the regulatory decree of the Supreme Court dated on November 25, 2016, No.8 »On certain questions of courts’ application of environmental legislation of the Republic of Kazakhstan in civil cases.»
On April 30, the case trial began.
On May 20, the judge of the District Court No.2 of the Almaly District rejected the application. He justified the rejection explaining that citizen K… has allegedly appealed to the state body (Department for Control of Use and Protection of Lands of the city of Almaty), which is not authorized to respond to inquiries about zoning of the city territory. In addition, she has allegedly received a reliable answer about zoning of the territory from the Department of Architecture and Urban Planning of the city of Almaty.
The judge completely misrepresented the facts. Citizen K… did not contact the Department of Architecture and Urban Planning and did not receive a reply from them. She appealed to the Department for Control of Use and Protection of Lands with a request to check whether the neighboring land plot was used in accordance with the intended purpose. The latter provided her with false information.
On June 27, the GS filed a complaint with the Appeals Board of the Almaty City Court.
On September 10, the Appeals Board satisfied the demands of the GS. The court ruling said: «To cancel the decision of the District Court No. 2 of Almaly District of the city of Almaty dated 05/20/2019 on this civil case, to make a new decision in the case to satisfy the appeal of the Ecological Society «Green Salvation» in the interests of K… To recognize as illegal the provision by the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» of inaccurate (incomplete) information in the reply dated on 06/27/2018. To oblige the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» to completely eliminate the violations and restore the violated rights and lawful [interests] of the Ecological Society «Green Salvation» … by providing the Ecological Society «Green Salvation» with the requested information within one months from the date the decision comes into force.»
The decision of the judicial board comes into force from the moment of its announcement.
The trial is completed. Enforcement proceedings continue. (see Section No. 2. Implementation of court decisions, case No. 3).
* * *
No. 2
Case about acknowledging the inaction of the MSE »Department for Control of Use and Protection of Lands of the city of Almaty» to be illegal and obliging it to fully eliminate the allowed violations (see the case No. 7, 2018).
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 Specialized Inter-regional Economic Court (hereafter – 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 of 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 of 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, the case trial began.
From January 4 to January 21, 2019, several court hearings were held. The representative of the Department did not provide feedback on the GS’s appeal, thereby violating the provisions of Article 166 of the Civil Procedural Code. No documents about a carried out inspection of the environmental condition of the land plot were provided.
On February 20, the judge of the SIEC of the city of Almaty refused to satisfy the appeal. He claims, without reference to documents, that the defendant conducted an audit and that the site was «formally used for its intended purpose». The judge points to the laws: «The applicant mistakenly believes that since the sports complex is partially destroyed and not used, this is the basis for issuing orders to the owner to eliminate violations of land legislation on the use of the land for its intended purpose. However, in the court’s opinion, the Department’s competence does not include the obligation to control damaged and destroyed buildings.»
The judge ignored subparagraph 4 of paragraph 3 of Article 93 of the Land Code, indicating that «the use of the land, which led to a significant deterioration of the environmental situation», is a violation of the law.
On March 19, the GS filed a complaint with the Appeals Board of the Almaty City Court.
On May 22, the Board rejected the complaint.
The judges justified the refusal by explaining that the Department has allegedly provided the answers to the GS and checked the use of the land for compliance with the intended purpose.
On June 26, the GS submitted an application for familiarization with the case materials. The GS believes that due to the fact that the documents confirming the fact of the audit were not presented to the representative of the GS in the court, they are not in the case, the court actually falsified the evidence.
On October 10, the GS filed a petition with the Supreme Court.
On November 18, a judge of the Supreme Court, having examined the application in advance, refused to refer it to the cassation instance of the Supreme Court. The judge reiterated the arguments of the courts of the first and appeal instances. When a representative of the GS was looking through the case materials, it was found that the documents confirming the defendant’s verification of the intended use of the land plot are not in the materials of this civil case. That is, the court actually falsified the evidence.
The case is closed. Violations are not resolved.
* * *
No. 3
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 »Green Salvation».
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 »Green Salvation».
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, the case trial began.
On February 4, the judge of the SIEC of the city of Almaty satisfied the appeal of the GS. The decision stated: «The court is convinced that the information presented in paragraph 5) of the Department’s reply of November 26, 2018, that the term «zero» construction option was introduced into use and appeared as a result of appeals and speeches of representatives of the GS »Green Salvation», is not true.»
The judge ordered the Department to provide the GS with accurate environmental information.
The court decision entered into force on March 12, 2019.
The case is closed. Enforcement proceedings continue (see Section No. 2. Implementation of court decisions, case No. 02).
* * *
No. 4
Case about acknowledging the issuance of the sanitary and epidemiological conclusion to «U …» LLP by the Department to be an illegal action and on obliging it to eliminate the violations
Case background facts:
The Department of Public Health of the city of Almaty issued a sanitary and epidemiological conclusion to »U…» LLP (Limited Liability Partnership) that does not comply with the norms of the Code of the Republic of Kazakhstan «On the Health of the People and the Health Care System», the law «On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan» and the requirements of the Sanitary Rules («Sanitary and epidemiological requirements for identifying a sanitary protection zone of production facilities»).
As a result of the above mentioned actions of the Department, local residents suffer from the activity of the enterprise, which produces concrete, receives, stores, and sells cement.
The lawsuit in defense of the interests of residents of Bokeykhanov Street of the city of Almaty, the Ecological Society and an undefined number of people was submitted on January 17, 2019 to the SIEC.
The Department of Public Health of the city of Almaty was brought to court as a defendant.
Legal violations:
The right of the public to access environmental information and participate in the decision-making process has been violated, in particular:
— paragraph 2 of 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 of paragraph 1 of Article 13, subparagraph 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 regulatory decision of the Supreme Court of November 25, 2016 No. 8 »On certain questions of courts’ application of environmental legislation of the Republic of Kazakhstan in civil cases.»
Demands:
- To acknowledge the action of the Department which has issued «U…» LLP a sanitary and epidemiological conclusion that does not comply with the laws of the Republic of Kazakhstan, to be an illegal action.
- To oblige the Department to fully eliminate the violations.
- To issue a private determination in relation to the Head of the Department, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
In February-March, several court hearings were held.
On March 4, the judge of the SIEC of the city of Almaty refused to satisfy the lawsuit.
The judge arbitrarily interpreted the requirements of the Sanitary Rules. As a result, he came to the conclusion that the hazard class is established depending on the actual concentration of pollutants outside the industrial site, and not according to the officially approved Sanitary Classification of Industrial Facilities. That is, the Department can arbitrarily change the hazard class and, on this basis, actually eliminate the sanitary protection zone for construction industry facilities.
On April 8, the GS filed a complaint with the Appeals Board of the Almaty City Court.
On June 5, the panel rejected the complaint.
The judges justified the refusal by stating that the class of sanitary hazard could be allegedly established by calculation, depending on the actual concentration of pollutants outside the industrial site, and not according to the officially approved Sanitary Classification of industrial facilities. This means that supposedly the Department of Public Health can arbitrarily change the class of sanitary hazard. The panel of judges did not take into account the two letters of the Public Health Committee received by the applicants at their request. The responses clearly indicate that the class of sanitary hazard cannot be changed based on calculations. The size of the sanitary protection zone can be changed.
On November 11, the GS filed a motion with the Supreme Court.
On December 9, a judge of the Supreme Court, having examined the application in advance, refused to refer it to the cassation instance of the Supreme Court. The judge reiterated the arguments of the courts of the first and appeal instances.
The judge did not take into account the two letters of the Public Health Committee received by the applicants at their request. The responses clearly indicate that the class of sanitary hazard cannot be changed based on calculations. The size of the sanitary protection zone can be changed.
The case is closed. Violations are not resolved.
* * *
No. 5
Case on acknowledging the provision of incomplete and inaccurate information by the Committee to be an unlawful act and on obliging it to provide complete and accurate environmental information
Case background facts:
Due to the provision of inaccurate information and an arbitrary interpretation of the legislation by the Department of Public Health of the city of Almaty, the GS requested clarification from the Public Health Committee. The questions posed to the Committee were related to the procedure for determining and changing the hazard class of industrial facilities.
The Committee ignored four out of the five questions asked, and gave an unargumented, inaccurate answer to the fifth question.
The lawsuit in defense of the interests of the Ecological Society and an undefined number of people was submitted to the SIEC of the city of Nur-Sultan on April 25, 2019.
The Committee for Public Health Protection of the Ministry of Health of the Republic of Kazakhstan was brought to court as a defendant.
Legal violations:
The right of the public to access environmental information has been violated, in particular:
— paragraph 2 of Article 20 of the Constitution of the Republic of Kazakhstan;
— Article 4 of the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters;
— subparagraph 7 of paragraph 1 of Article 13, subparagraph 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 regulatory decision of the Supreme Court of November 25, 2016 No. 8 »On certain questions of courts’ application of environmental legislation of the Republic of Kazakhstan in civil cases.»
Demands:
- To acknowledge the fact that the Committee for Public Health Protection did not provide an answer to four questions and provided false information to the one question to be an unlawful action.
- To oblige the Committee to provide the Ecological Society with complete and accurate environmental information.
- To make a private determination in relation to the Head of the Committee, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
The lawsuit was withdrawn due to receipt of the complete and accurate information.
* * *
No. 6
Case about provision of inaccurate information by the akimat of the Medeu District of Almaty and about obliging it to provide complete and accurate environmental information
Case background facts:
Akimat provided the Ecological Society with false information that the Government Decree No. 1267 of December 2, 2014 on the transfer of the natural tract Kok-Zhailau to the Medeu District from the Ile-Alatau State National Park has expired, according to the Government Decree No. 745 of September 4, 2015 «On recognition of certain decisions of the Government of the Republic of Kazakhstan as ceased to be active.»
The Decree No. 745 only invalidated the paragraph 3 of the Decree No. 1267. The Kok-Zhailau tract is still located in the administrative borders of the Medeu district.
The lawsuit in defense of the interests of the Ecological Society was submitted to the SIEC of Almaty on July 24, 2019.
Legal violations:
The right of the public to access environmental information has been violated, in particular:
— paragraph 2 of Article 20 of the Constitution of the Republic of Kazakhstan;
— Article 4 of the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters;
— subparagraph 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 regulatory decision of the Supreme Court of November 25, 2016 No. 8 »On certain questions of courts’ application of environmental legislation of the Republic of Kazakhstan in civil cases.»
Demands:
- To acknowledge the provision of inaccurate information by the Akimat of Medeu District to be an unlawful act.
- To oblige the Akimat to provide the Ecological Society with accurate environmental information.
- To make a private determination in relation to the Head of the Akimat, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
On September 12, a judge of the Specialized Inter-district Economic Court found that «the act of providing inaccurate information to the Ecological Society «Green Salvation» by the Akimat of the Medeu District of Almaty was unlawful.»
The decision of the SIEC of the city of Almaty dated September 12, 2019 entered into force on October 13, 2019.
The case is closed. Enforcement proceedings continue (see Section No. 2. Implementation of court decisions, case No. 04).
* * *
No. 7
Case on violation of the requirements of the law by the Committee of Quality and Safety of Goods and Services when developing new rules for designing sanitary protection zones of industrial enterprises
Case background facts:
The Committee for Public Health Protection of the Ministry of Health of the Republic of Kazakhstan (presently — the Committee for Quality and Safety of Goods and Services), in response to the GS’s proposal to introduce a requirement for mandatory on-site marking of sanitary protection zones into the draft Rules «Sanitary and Epidemiological Requirements for Establishing Sanitary Protection Zones of Production Facilities» declared that such introduction would be unnecessary.
The lawsuit in defense of the interests of an undefined number of people was submitted at the Nur-Sultan SIEC on August 9, 2019.
Legal violations:
The right of the public to participate in preparation of regulatory provisions of direct executive force and other generally applicable legally binding rules by government bodies has been violated.
Demands:
- To acknowledge the actions of the Public Health Committee to be unlawful.
- To oblige the Committee to fully eliminate the violations.
- To make a private determination in relation to the Head of the Committee, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
On September 19, the judge of the SIEC of the city of Nur-Sultan refused to satisfy the lawsuit demands. He made a determination in which he indicated that the appeal of the GS «is not subject to trial in civil proceedings», since «the law does not provide for an appeal against actions of a state institution during development, submission, discussion, and adoption of a legal act». The court did not take into account article 8 of the Aarhus Convention, which reads as follows: «Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment.»
On September 30, a private complaint was filed with the Appeals Board for Civil Cases of the SIEC of the city of Nur-Sultan.
On November 27, the panel rejected the complaint.
The judge repeated the arguments of the courts of the first and appeal instances word for word. «The law does not provide for an appeal against actions of a state institution during development, submission, discussion, and adoption of a legal act » (Quote from the court ruling).
The judge did not take into account article 8 of the Aarhus Convention, which reads as follows: «Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment.»
In the ruling, the judge did not even mention Article 8 of the Aarhus Convention.
A petition is being prepared to be submitted to the Supreme Court.
The trial continues.
* * *
No. 8
Case on inaction of Akimat of Medeu District of Almaty
expressed in the refusal to maintain order and carry out sanitary cleaning in the Kok-Zhailau tract
Case background facts:
The Akimat, refering to the alleged expiration of the Government Decree No. 1267 of December 2, 2014 on the transfer of the tract Kok-Zhailau to the Medeu District from the Ile-Alatau State National Park, has not fulfilled its direct responsibilities in maintaining order and sanitation on the natural tract Kok-Zhailau for several years.
The lawsuit in defense of the interests of an undefined number of people was submitted to the SIEC of Almaty on August 28, 2019.
Legal violations:
The Akimat does not fulfill its direct duties of maintaining order and sanitation provided for by the norms of the law «On Local Government and Self-Government in the Republic of Kazakhstan» dated January 23, 2001, and the requirements of the provision on the municipal state institution «Administration of the Akim of Medeu District of the city of Almaty».
As a result of the Akimat’s inaction, the rights of an undefined number of people, namely residents of Almaty, who, according to paragraph 1 of Part 1 of Article 13 of the Environmental Code, have the right to an environment favorable to their life and health, are violated.
Demands:
- To acknowledge the inaction of the Akimat of the Medeu District to be illegal.
- To oblige the Akimat to eliminate the committed violations in full.
- To make a private determination in relation to the Head of the Akimat, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.
In September October, several court hearings were held.
On October 18, the judge of the SIEC of the city of Almaty refused to satisfy the appeal.
The judge justified the refusal by stating that by the decision of the Akimat of Almaty No. 1 / 1-227 of February 19, 2019, a right of temporary free short-term land use was granted to the State Authority «Department of Tourism and External Relations of the City of Almaty» for a period of 4 years 11 months on the land area of 459.2020 hectares for the construction and operation of the Kokzhailau ski resort, located at: Kokzhailau tract. Therefore: «at the time of the plaintiff’s appeal with a letter dated April 29, 2019, the issue of restricting the entry of vehicles into the territory of the Kok-Zhailau tract and sanitary maintenance was not within the competence of the District Akim Administration.»
This conclusion is incorrect, since the Government Decree dated 12/02/2014 on the transfer of the tract Kok-Zhailau to the Medeu District from Ile-Alatau State National Park, at the time of consideration of this civil case, did not lose force, that is, it was a valid normative legal act. Transfer of land for rent to another institution does not exempt the Akimat from the obligation to improve, provide lighting, plant greenery, and perform sanitary cleaning of the territory of the district.
On November 18, the GS filed a complaint with the Appeals Board of the Almaty City Court.
On January 8, 2020, the Board rejected the complaint.
A petition is being prepared to be submitted to the Supreme Court.
The trial continues.
* * * * * *
SECTION No.2
Implementation of court decisions
In accordance with paragraph 2 of Article 21 of the Civil Procedural Code, court decisions that have entered into legal force are binding on all, without exception, state bodies, local self-government bodies, public associations, other legal entities, officials and citizens and are subject to enforcement throughout the Republic of Kazakhstan.
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.
For more information on the actions taken in 2014 — 2018 to implement the decision of the Supervisory Board of the Supreme Court of November 27, 2013, see «Summary of Judicial Practice of the Ecological Society «Green Salvation for 2018», section 2.
On August 2, 2018, 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.
On December 6, 2018, enforcement proceedings were resumed.
On February 13, again, the debtor was handed a notice of obligation to execute the judicial act.
On February 14, by a resolution of the SIEC of the city of Almaty, the debtor was held administratively liable under Article 669 of the Administrative Aode and fined 75,750 tenge.
On February 27, the debtor was given a notice again about the obligation to execute the judicial act with a simultaneous warning of collecting a penalty from the debtor for each day of delay in execution provided for by the requirement of Article 104 of the Law «On Enforcement Proceedings and the Status of Bailiffs».
On March 12, in accordance with Article 104 of the aforementioned law, a statement was submitted to the Medeu District Court of Almaty about collection of a penalty from the debtor in the the state’s favor in the amount of 858,500 tenge for each day of delay.
By the decision of the Medeu District Court of April 5, the statement of the bailiff was satisfied in full, 858,500 tenge were collected from the debtor in the state’s favor.
The statement of the bailiff about initiation of criminal proceedings against the head of the Department is under consideration.
On May 27, by a decision of the bailiff, the executive document of the Medeu District Court of Almaty dated December 26, 2016, issued by order of the Supreme Court of the Republic of Kazakhstan No. 2-7091 / 12 of November 27, 2013, was returned by the claimant. The basis is the renaming of the debtor in accordance with the decree of the Government of the Republic of Kazakhstan dated 04/10/2019 No. 177.
On June 5, the applicant filed a complaint with the Medeu District Court of Almaty in accordance with Article 250 of the Civil Procedural Code of the Republic of Kazakhstan regarding the actions of the bailiff.
On June 28, the Medeu District Court of Almaty refused to satisfy the complaint. Currently, an appeal is being prepared against the decision of the district court.
On June 3, the applicant submitted an application with the Medeu District Court of Almaty about replacing the debtor.
On July 9, by a determination of the Medeu District Court of Almaty, the applicants’ claim was satisfied, the debtor was replaced by the Department of Control of Quality and Safety of Goods of the city of Almaty.
In August 2019, the determination of the Medeu District Court of Almaty to replace the debtor entered into legal force. Based on the court ruling, the applicants filed an application to the bailiff for resumption of enforcement proceedings. The bailiff refused to resume the enforcement proceedings twice, referring to the fact that the writ was returned to the applicants. The applicants had to turn to the Medeu District Court of Almaty with a request to write out and hand out a writ of execution on the court ruling of July 9, 2019.
Having received a writ of execution, the applicants appealed to the bailiff with a request to institute enforcement proceedings.
Enforcement proceedings were instituted. The debtor is the Department of Control of Quality and Safety of Goods of the city of Almaty.
Regarding the systematic failure to comply with the decision of the Supreme Court, the applicants repeatedly appealed to the Ministry of Justice of the Republic of Kazakhstan. The applicants received answers to their appeals from the Department of Justice of Almaty, signed by the head and deputy head of the Department.
Enforcement proceedings are currently at the enforcement stage.
Enforcement proceedings continue.
* * *
No. 2
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.
(see Section 1, Case No. 3, 2019).
On March 12, 2019, the SIEC of Almaty issued a writ of execution.
The writ of execution of the SIEC of Almaty was accepted into proceedings by the Territorial Department for enforcement of non-property related claims of the Department of Justice of Almaty. For this enforcement proceeding, the debtor is required to provide the Ecological Society with accurate information regarding the «zero option».
Until June 30, no accurate information was provided by the debtor. The motive for the non-execution of the writ is that the debtor allegedly provided information on March 13, 2019. The Ecological Society cannot accept the debtor’s reply of March 13 as accurate information due to the fact that the letter of the Department does not refer to the decision of the SIEC of Almaty.
Within nine months, the writ of execution, in which the Department is indicated as the debtor, has not been fully executed. The Department refers to the response provided on March 13, 2019. But in the indicated response, there is no indication of the decision of the SIEC of Almaty dated February 4, 2019.
On December 23, the Ecological Society sent a new letter to the Department with a proposal to immediately execute the court decision. Otherwise, the GS will be forced to go to court.
Enforcement proceedings continue.
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No. 3
Case about acknowledging of inaccurate information provision by the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» to be an illegal action, and about obliging it to provide complete and accurate environmental information (See Section 1, case No. 1, 2019)
On September 30, because of the defendant’s refusal to voluntarily comply with the decision of the judicial board for civil cases of the Almaty City Court of September 10, 2019, a statement was sent to District Court No. 2 of the Almaty District of Almaty in order to submit it to the Office for Claims Execution of the Department of Justice of the city of Almaty.
On October 15, 2019, the District Court No. 2 of the Almaly district of Almaty issued a writ of execution.
The writ of execution was accepted into proceedings by the Territorial Department for execution of non-property related claims of the Department of Justice of Almaty. With respect to this enforcement proceedings, the debtor is obliged to provide the Ecological Society with accurate information in the interests of citizen K… and other residents of Velikolukskaya Street regarding the intended use of the neighboring site on which the production workshop is located.
On December 31, 2019, a response was received from the Department of Urban Planning Control of the city of Almaty, in which the defendant again provided inaccurate information, completely ignoring the decision of the judicial board of September 10, 2019.
Enforcement proceedings continue.
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No. 4
Case about provision of inaccurate information by the akimat of the Medeu District of Almaty and about obliging it to provide complete and accurate environmental information
(see Section 1, Case No. 6, 2019).
On December 24, due to the defendant’s refusal to voluntarily execute the court decision of September 12 within three months, a statement was sent to the SIEC of Almaty to issue a writ of execution for submission to the Department for execution of non-property related claims of the Department of Justice of Almaty.
On January 8, 2020, the court issued a writ of execution to the GS.
Enforcement proceedings continue.
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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.
Translated by Sofya Tairova
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Summary of Lawsuits in 2018 by the Ecological Society Green Salvation
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
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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.