About obligation, compulsion (fulfillment, requirements, prescriptions)

           The Court of First Instance, taking into account paragraph 6 of Article 3 of the Law of the Republic of Kazakhstan "On Religious Activities and Religious Associations" (hereinafter referred to as the Law), which provides that everyone has the right to adhere to religious or other beliefs, spread them, participate in the activities of religious associations and engage in missionary activities in accordance with the legislation of the Republic of Kazakhstan, which there is a right to engage in missionary activity within the framework of legislation.

In turn, the legislator provides for requirements for persons engaged in missionary activities. One of these requirements is that missionary activity can only be carried out on behalf of a legal entity.

At the same time, the court cited paragraph 1 of Article 3 of the Law, which states that the state is separate from religion and religious associations, as well as paragraph 3) paragraph 8 of Article 3 of the Law, in accordance with the principle of separation of religion and religious associations from the state, the state does not interfere in the activities of religious associations if the activities of religious associations do not contradict the laws Of the Republic of Kazakhstan.

Further, the court of first instance concluded to dismiss the claim, referring to paragraph 1 of Article 16 of the Law, which states that a religious association carries out its activities on the basis of the charter, since the legislator grants religious associations freedom of action within the Law, therefore a religious association independently determines the ways of spreading the faith that it considers appropriate for it. And the Charter of the NGO "Christian Community of Jehovah's Witnesses of Akmola region" does not provide for the type of missionary activity, i.e. only a religious association, the community can determine whether to engage in missionary activities and which of the members of the community to entrust missionary activities.

By a resolution dated 05/14/2015 of the Appellate Judicial Board for Civil and administrative cases of the Akmola Regional Court, this decision was overturned, and the proceedings were terminated. By overturning this decision of the court of first instance and terminating the proceedings, the appellate judicial board pointed out that disputes over forms of religious activity are internal disputes of a religious organization. The State has no right to allow or prohibit a religious organization of anything, if it does not violate the physical, mental, or mental health of citizens, their civil or other rights, and is not directed against the state system (Articles 12,13,14,15 of the Law).

Consequently, these claims are subject to termination under subparagraph 1) of Article 247 of the CPC. The Cassation Board agreed with these conclusions of the appellate instance, based on the established circumstances of the case and the norms of substantive and procedural law, that the state does not have the right to oblige a religious association to commit acts that do not violate the physical, mental, or mental health of citizens, their civil or other rights, and are not directed against the state system, which is the case in this case, since the issuance of a document for the right to carry out missionary activities on behalf of a religious association is the right of the latter, and not an obligation.

By the decision of the Cassation Judicial Board for Civil and administrative cases of the Akmola Regional Court dated 07/02/2015, the decision of the appellate instance dated 05/14/2015 was left unchanged, the cassation appeal of the plaintiff Yeremin D.V. was not satisfied.

By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Aktobe Regional Court dated January 15, 2015 in a civil case on the claim of the State Institution "Department of Labor Inspection of the Aktobe region" to LLP "Jubilee" on the obligation to comply with order No. 27 dated August 20, 2014, on the counterclaim of LLP "Jubilee" to the State Institution "Department of Labor Inspection of Aktobe region" on the cancellation of the order of the State Labor Inspector No. 27 dated August 20, 2014, The decision of the specialized interdistrict economic court of Aktobe region dated November 19, 2014, remained unchanged, and the appeal was dismissed. The State Institution "Department of Labor Inspection of Aktobe region" filed a lawsuit with the "Jubilee" LLP for the obligation to comply with the order No. 27 dated August 20, 2014 for compensation of damage in the amount of 164,900 tenge to the injured Akhmetova M.S., and the "Jubilee" LLP filed a counterclaim with the State Institution "Office of Inspection labor of the Aktobe region" on the cancellation of the order of the State Labor Inspector No. 27 dated August 20, 2014 as illegal, the obligation of the state labor inspector to eliminate in full the violation of rights, freedoms and legally protected interests of Jubilee LLP.

By the decision of the specialized interdistrict Economic Court of Aktobe region dated November 19, 2014, the claims of the State Institution "Labor Inspection Department of Aktobe region" were fully satisfied.Jubilee LLP is obliged to comply with the order No. 27 dated August 20, 2014 on compensation for damage in the amount of 164,900 tenge to the injured Akhmetova M.S.

The counterclaim filed by Yubileynoye LLP against the Department of Labor Inspection of Aktobe region for the cancellation of the order of the State Labor Inspector No. 27 dated August 20, 2014, the obligation of the state labor inspector to eliminate in full the violation of the rights, freedoms and legally protected interests of Yubileynoye LLP, was refused.

The appeals board, leaving the decision unchanged, indicated that the grounds provided for in Article 364 of the CPC for the cancellation or amendment of the court's decision were not allowed by the court of first instance. It follows from the circumstances of the case that Akhmetova M.S., an employee of Jubilee LLP, was granted permanent disability due to a work injury. The State Labor Inspector for the Aktobe region issued an order No. 27 dated August 20, 2014 to Yubileynoye LLP, from the contents of which it follows that Akhmetova M.S. She received a referral for inpatient treatment at the FAO "ZHGMK" - "Aktobe Railway Hospital" and the cost of treatment is 164,900 tenge. These documents were submitted for payment to Jubilee LLP, which does not take measures to pay for the treatment of the victim. Disagreeing with the requirement of the state inspector, the representative of the employer claims that only the actual medical expenses are reimbursed, and the inspector obliges to pay an advance payment.

According to subparagraph 21) of paragraph 2 of Article 23 of the Labor Code, the employer is obliged to compensate for damage caused to the life and health of the employee in the performance of his labor (official) duties in accordance with this Code and the legislation of the Republic of Kazakhstan.

Also, according to paragraph 1 of Article 164 of the Labor Code, if harm is caused to the life and (or) health of an employee in connection with the performance of his labor duties, the employer is obliged to compensate for the damage to the extent provided for by the civil legislation of the Republic of Kazakhstan.

In accordance with paragraph 1 of Article 937 of the Civil Code of the Republic of Kazakhstan, if a citizen is injured or otherwise damaged, the victim's lost earnings (income), which he had or definitely could have had, as well as expenses caused by damage to health (for treatment, additional nutrition, purchase of medicines, prosthetics, outside care, sanatorium treatment), are subject to compensation. medical treatment, purchase of special vehicles, preparation for another profession, etc.), if it is recognized that the victim needs these types of assistance and care and does not receive them for free.

According to Article 937 of the Civil Code, medical expenses caused by injury are reimbursed if it is recognized that the victim needs these types of care and does not receive them for free.

The conclusion of the medical and social expertise on Akhmetova M.S. provides for the following rehabilitation measures: quarterly follow-up and treatment with a neurologist, drug therapy, inpatient treatment 2 times a year and sanatorium treatment 1 time a year.

In accordance with paragraph 43 of the Rules for conducting a medical and social examination, approved by the Decree of the Government of Kazakhstan dated July 20, 2005 No. 750, the ITU department, in accordance with Article 937 of the CPC of the Republic of Kazakhstan, determines the need for additional medical treatment for the person being examined (not included in the list of guaranteed free medical care), including for additional meals and purchase of medicines. The court found that the victim Akhmetova M.S. He needs inpatient medical treatment caused by damage to his health, and it is not provided free of charge. In Article 937 of the Civil Code, compensation for treatment is defined as expenses.

In accordance with paragraph 4 of art.9GK, a person has the right to demand reimbursement of expenses that have been or should be incurred.

In this regard, the defendant's arguments are untenable and based on a misinterpretation of paragraph 1ST937 of the Criminal Code.

Based on clauses 3 and 10 of Article 330 of the Labor Code of the Republic of Kazakhstan, the instructions of the State labor inspector are mandatory for employers.The State inspector has the right to send information, claims and other materials to law enforcement agencies and courts regarding violations of labor laws and employers' failure to comply with acts of state labor inspectors.

Under the circumstances described, the courts of first instance and the courts of appeal concluded that the order of the state labor inspector was issued in accordance with the law and within the limits of the authority of the state body and the rights, freedoms and legally protected interests of a citizen and a legal entity were not violated, while the court of first instance correctly applied the norms of substantive law, the disputed legal relations were given a correct legal assessment.

By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Aktobe Regional Court dated June 10, 2015 in a civil case on the claim of the State Institution "Labor Inspection Department of the Aktobe region" to the State Institution "Aktobe Law Institute of the Ministry of Internal Affairs of the Republic of Kazakhstan" on the obligation to comply with the order, the decision of the specialized interdistrict economic court of the Aktobe region dated April 30, 2015, was upheld changes, but the appeal is not satisfied.

 

The State Institution "Department of Labor Inspection of Aktobe region" (hereinafter referred to as the Department) filed a lawsuit against the State Institution "Aktobe Law Institute of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Institute) on the obligation to comply with Order No. 1 dated January 30, 2015.

By the decision of the Specialized Interdistrict Economic Court of Aktobe region dated April 30, 2015, the claim of the State Institution "Labor Inspection Department of Aktobe region" was denied.

It follows from the court's decision that on February 24 and March 17, 2014, F.G. Galym submitted a report to the management of the Institute on his dismissal from his post as head of the Faculty of full-time studies and his enrollment at the disposal of the Institute. On May 26, 2014, the First Deputy Minister of Internal Affairs of the Republic of Kazakhstan, M.G. Demeuov, signed an order on the dismissal of F.G. Galym from his post as head of the full-time faculty of the Institute and remaining at the disposal of this institution from May 05, 2014. By order of the Acting Head of the Institute, N.G. Birmanov No. 105j/k dated August 16, 2014, F.G. Galym was dismissed from the internal affairs bodies. Due to the protest of the prosecutor of the Aktobe region dated August 27, 2014, by order of the head of the Institute No. 112 l/s dated August 28, 2014, Order No. 105 dated August 16, 2014 was canceled and F.G. Galym was reinstated in the internal affairs bodies.

By order of the head of the Institute No. 144 l/s dated December 03, 2014, F.G. Galym was seconded to the USSO of the Aktobe region for further service in the internal affairs bodies. In a statement addressed to the Department dated December 05, 2014, Galym F.G., in accordance with the Rules for Maintaining and storing workbooks, asked to make an entry in the workbook.

According to the results of an unscheduled inspection conducted on the specified application, the state labor inspector K.K. Baymaganbetova issued an Order No. 1 dated January 30, 2015 to the head of the Institute S.I. Karakushev on making an entry in the employment record book of F.G. Galym about work in the organization, in connection with a violation of part 3 of Article 35 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code) and the Rules for Maintaining and Storing Workbooks, approved by Resolution No. 1167 of the Government of the Republic of Kazakhstan dated October 14, 2011. Meanwhile, by virtue of Article 257 of the Labor Code, the work of law enforcement officers is regulated by this Code with the specifics provided for by special laws of the Republic of Kazakhstan and other regulatory legal acts of the Republic of Kazakhstan, establishing special conditions and procedures for admission to service, its passage and termination, special working conditions, terms of remuneration, as well as additional benefits, advantages and restrictions.

In accordance with article 42 of the Law of the Republic of Kazakhstan "On Law Enforcement Service", the law enforcement agency maintains personal files, accounting documents for employees containing their personal data, information on official activities and length of service in law enforcement.

The employee's personal data and other information related to joining the law enforcement service, its passage and dismissal from the law enforcement service, necessary to ensure the activities of the law enforcement agency, are entered into the employee's personal file.

The information contained in the employee's personal file and accounting documents are classified as state secrets in accordance with the legislation of the Republic of Kazakhstan. The procedure for maintaining personal files containing the employee's personal data is approved by the head of the law enforcement agency.

Article 3 of the Law of the Republic of Kazakhstan "On Regulatory Legal Acts" stipulates that the main type of regulatory legal acts are: regulatory legal orders of the Ministers of the Republic of Kazakhstan and other heads of central government bodies. According to paragraph 30 of the Rules for Conducting personal Affairs containing personal data of an employee of the Internal Affairs bodies of the Republic of Kazakhstan, which are Appendix 5 to the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated May 27, 2011 No. 246, employees dismissed from the internal affairs bodies are given workbooks with a notice of dismissal on time..

In accordance with paragraph 31 of these Rules, when making entries about service in the internal affairs bodies in the workbook, the following should be followed::

a) the list of positions held and the names of the bodies and divisions of internal affairs where the dismissed person served is not entered;

b) information on all awards and promotions during his service in the internal affairs bodies is entered in the appropriate columns of the workbook.;

c) information about disciplinary actions is not recorded in the employment record;

d) the reason for dismissal, paragraph and article of the Regulation, according to which the employee was dismissed from the internal affairs bodies, are not indicated in the workbook.

e) all records of the dates of recruitment, dismissal, awards and promotions (the date and month are in two digits, the year is indicated in full), the record numbers are made in Arabic numerals based on the relevant orders.

Similar requirements are contained in clause 4.4 of the Rules for Registration, Maintenance and Storage of basic documents for personal and staff records of employees and employees of the internal affairs bodies of the Republic of Kazakhstan, which are Appendix No. 9 to the Instructions approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated April 17, 2010 No. 171. It follows from the above-mentioned subordinate regulations that the information contained in the personal file and accounting documents of an employee of the internal affairs bodies is not subject to indication in the workbook.

In such circumstances, the court of first instance concluded that the requirement of the State labor inspector to make an entry in the employment record book of a law enforcement officer, expressed in the Order, was inconsistent with the provisions of the Labor Code and the above-mentioned special regulatory legal acts, which provide for a different procedure for keeping records in the workbook.

Thus, the court of first instance lawfully rejected the Management's claim for the obligation to comply with Order No. 1 dated 30.01.2015.. Based on the above, the board considered the court's decision legitimate and justified, found no grounds for review, and declared the arguments of the appeal untenable.

 

By the decision of the Appellate Judicial Board of the Atyrau Regional Court dated June 25, 2015 in a civil case on the claim of the Chief State Labor Inspector for the Atyrau region, Ishai S.N., against Cape Industrial Services Limited on the obligation to comply with the order of the State Labor Inspector of the Atyrau region No. 50 dated February 26, 2014, the decision of the Atyrau City Court on April 02, 2015 year, left unchanged.

The Chief State Labor Inspector for Atyrau region filed a lawsuit against Cape Industrial Services Limited for the enforcement of Order No. 50 dated February 26, 2014. The claim was satisfied by the decision of the Atyrau City Court dated April 02, 2015. It was decided to oblige Cape Industrial Services Limited to comply with the order of the State Labor Inspector of Atyrau region No. 50 dated February 26, 2014, and a state duty of 991 tenge was collected from Cape Industrial Services Limited to the state revenue.

The court found that Kim D.S., the state labor inspector for Atyrau region, conducted an unscheduled inspection at the Kazakh branch of the Company from January 31 to February 21, 2014. According to the results of an unscheduled inspection by the state labor inspector, violations of paragraph 5 of Article 134 of the Labor Code of the Republic of Kazakhstan and the employer's debt to employees for compensation for unused days of labor leave were revealed to: B.T. Gurbanov for the period from 05/16/2001 to 12/31/2012 37 754 545.89 tenge, T. Shiraliev for the period from 07/24/2006 to 07/10/2013. in the amount of 4,838,766.68 tenge, Galkin A. for the period from 05/15/2002 to 30.06.2010 15,929,733 tenge and Slobodsky R. in the amount of 13,609,903.48 tenge. On February 26, 2014, the State Labor Inspector for Atyrau region, guided by the requirements of paragraph 1, paragraph 1, Article 333 of the Labor Code of the Republic of Kazakhstan, issued an order No. 50 to the head of the Kazakh branch of the Company demanding repayment of final settlement debts to employees and provision of written information on the execution of the order by March 26, 2014.

The defendant has not appealed this order in court, and the fact that the employer owes employees compensation for unused vacation days is not disputed by the parties. By the decree of the State Labor Inspector for Atyrau region dated March 04, 2014, which entered into force, the Company was brought to administrative punishment in the form of a fine under Part 3 of Article 87 of the Code of the Republic of Kazakhstan "On Administrative Offenses" in the amount of 20 MCI in the amount of 37,040 tenge for violating paragraph 5 of Article 134 of the Labor Code of the Republic of Kazakhstan.

In accordance with paragraphs 2-3 of Article 333 of the Labor Code of the Republic of Kazakhstan, acts of the State labor inspector are legal measures to influence violations by employers and officials of the requirements of the labor legislation of the Republic of Kazakhstan. The acts are drawn up in two copies, one of which is handed over to the employer against signature. The acts of the State labor inspector are obligatory for execution by officials, individuals and legal entities.

Leaving the court's decision unchanged, the appeals board pointed out that the order is an act of the state inspector, which is subject to mandatory execution, the plaintiff's claims indicated in the order sent to the defendant are justified and he is obliged to fulfill them by paying employees arrears in compensation for unused days of labor leave, are justified, supported by evidence in the case, while the court The Court of first instance correctly identified and clarified the range of circumstances relevant to the case, the conclusions set out in the decision correspond to the circumstances of the case.

The board also pointed out that the court's decision was made taking into account the factual circumstances of the case established in this case, the court did not violate the norms of the substantive law, the defendant's arguments set out in the appeal were examined by the court of first instance and they were given a detailed assessment, which the court of appeal finds correct.

Meanwhile, an analysis of the studied cases in this category showed that similar cases on the claims of the State Institution "Management of the State Labor Inspectorate" on the obligation of defendants to comply with the order of the state labor inspector were considered by the courts of East Kazakhstan, Kyzylorda, Pavlodar, Atyrau, Aktobe regions and Almaty, where the claims of the specified state body were satisfied and the courts imposed the duty to comply with the instructions of the state labor inspector for the defendants.

A number of cases of this category have been considered by the courts based on claims of the services for regulation of natural monopolies and protection of competition. By the decision of the specialized interdistrict Economic Court of the East Kazakhstan region dated February 10, 2015, which entered into force, the claim of the State Institution "Department of the Committee of the Republic of Kazakhstan for Regulation of Natural Monopolies and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan for the East Kazakhstan region" to the KGP on the PCV "RIZA" for the enforcement of the order was satisfied.

It was decided: to oblige the KGP at the RIZA nuclear power Plant to comply with the order of the State Institution "Department of the Committee of the Republic of Kazakhstan for Regulation of Natural Monopolies and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan for the East Kazakhstan region" No. 44 dated June 11, 2014 and notify the authorized body of the execution. The KGP at the RIZA water treatment plant is included in the local section of the State Register of Natural Monopoly Entities on the basis of Order No. 61-OD dated April 11, 2008 by type of activity services of the water management system.

In accordance with paragraphs 7-3 of Article 7 of the Law of the Republic of Kazakhstan "On Natural Monopolies and Regulated Markets", natural monopoly entities are required to report annually to consumers on their activities in providing regulated services.

The report must be conducted no later than May 1 of the year following the reporting year. This requirement of the law was violated by the defendant, in connection with which the State Institution "Department of the Agency of the Republic of Kazakhstan for Regulation of Natural Monopolies in East Kazakhstan Region" sent an order No. 44 dated June 11, 2014 to the KGP at the RIZA Nuclear Power Plant on the cessation of violations of the law and elimination of their consequences, according to which the defendant was charged with make a mandatory report to consumers and notify the Department of its execution no later than July 11, 2014.

It follows from the case file that the defendant did not execute the order within the prescribed period.

In accordance with paragraph 3 of Article 19-1 of the Law of the Republic of Kazakhstan "On Natural Monopolies and Regulated Markets", if a natural monopoly entity fails to comply with a regulation, the authorized body has the right to file a lawsuit in court to compel the natural monopoly entity to perform the actions specified in the regulation.

By the decision of the specialized interdistrict Economic Court of the Akmola region dated May 20, 2015, which entered into force, the claim of the Republican state Institution "Department of the Committee for Regulation of Natural Monopolies and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan for the Akmola region" against the State Utility Company on the right of economic management "Tazalyk-Service" at the Department of Housing and Communal Services, Passenger Transport and the highways of the Burabaysky district must be obliged to comply with the order, I am satisfied.

The court ruled: to oblige the State communal Enterprise on the right of economic management "Tazalyk-Service" at the Department of housing and communal services, for Passenger Transport and highways of the Burabay district, comply with Order No. 1 dated 11/14/2014 and submit to the Republican State Institution "Department of the Committee for Regulation of Natural Monopolies and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan for the Akmola region" an application and documents for approval of the tariff for a regulated type of water supply service through distribution networks, provided for in paragraph 7 of the Rules inclusions and exclusions from the State register of Subjects of natural monopolies dated 28.03.2014 No. 64-OD. C

The UDC established that the Tazalyk-Service State Enterprise was included in the local section of the State Register of Subjects of Natural Monopolies in the Akmola Region (hereinafter referred to as the Register) by Order No. 99-OD dated June 6, 2014 of the Department of the Agency of the Republic of Kazakhstan for Regulation of Natural Monopolies in the Akmola Region (hereinafter referred to as the Department) on the type of regulated service: water supply via distribution networks.

The Department has informed the State Enterprise for PCV Tazalyk-Service that, within ten days of receiving the notification of inclusion in the Register, apply to the authorized body with an application for approval of the tariff for the regulated service.

In accordance with paragraph 6 of the Rules for Inclusion and Exclusion from the State Register of Subjects of Natural Monopolies, approved by Order No. 64 – OD of the Chairman of the Agency of the Republic of Kazakhstan for Regulation of Natural Monopolies dated March 28, 2014 (hereinafter referred to as the Rules), subjects of natural monopolies within ten days from the date of receipt of the notification of the authorized body on its inclusion in the State Register of Subjects of Natural Monopolies. monopolies submit an application to the authorized body for approval of the tariff (prices, fee rates) and tariff estimates.

In accordance with paragraph 7 of the Rules, the necessary documents are attached to the application for approval of the tariff (prices, fee rates) and tariff estimates in a simplified manner.

However, in violation of these requirements, the defendant has not yet submitted an application for approval of the tariff and tariff estimates with the necessary documents attached. The requirements of subparagraph 1) of Article 7 of the Law "On Natural Monopolies and Regulated Markets" were violated by the State Enterprise at Tazalyk-Service.

In judicial practice, there are cases when subjects of natural monopolies voluntarily comply with the order of the authorized body before filing a lawsuit.

Thus, by the decision of the specialized interdistrict economic court of the Akmola region dated June 24, 2015, which entered into force, the claim of the state institution "Transport Control Inspectorate for the Akmola region" against the limited liability company "Helios" on enforcement of the order and payment of the fee was refused, since the defendant, before filing a lawsuit in court, 04 On May 2015, he paid a fee in the amount of KZT 3,325,452, about which the court was provided with a corresponding receipt certificate by the plaintiff's representative.

In cases where a natural monopoly entity does not allow obvious dishonesty and culpable actions, as well as a change in legislation that excludes certain duties of the entity, its actions are not recognized as illegal.

Thus, by the decision of the specialized interdistrict economic court of the Akmola region dated June 24, 2015, which entered into force, the claim of the republican state institution "Department of the Committee for Regulation of Natural Monopolies and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan for the Akmola region" against the state communal.

Regulatory and legal framework

- The Civil Procedure Code of the Republic of Kazakhstan;

- Land Code;

- The Law "On Architectural, Urban planning and Construction activities in the Republic of Kazakhstan";

- The Labor Code of the Republic of Kazakhstan;

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 5 "On judicial decision".

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