On recognition as illegal and cancellation of the protocol of the City Maslikhat

No.6001-23-00-6ap/905 dated 08/17/2023

Plaintiffs: O.J., A.N.

Defendants: The City Maslikhat, the Working Group on the formation of the public council of the city of Turkestan.

The subject of the dispute: on the recognition as illegal and cancellation of Protocol No. 1 of May 4, 2022 on the formation of a list of candidates for the working group on the formation of the City's Public Council and the protocol decision of May 4, 2022 on this protocol, on the recognition as illegal and cancellation of Protocol No. 2 of May 11, 2022 on the selection of members and the election of the head of the working group on the formation of the City's Public Council, recognition as illegal and cancellation of the protocol decision of May 11, 2022 approving the composition of the working group on the formation of the City's Public Council, declaring illegal and repealing Protocol No. 5 of June 7, 2022 on the formation of the City's Public Council, declaring illegal and repealing the decision of the city Maslikhat of August 12, 2022 on approving the composition of the City's Public Council, obliging the city maslikhat to re-form the city's public council.

Review of the plaintiffs' cassation appeal.

PLOT: From the beginning of April to August 2022, the Turkestan city Maslikhat conducted a procedure for the formation of a Public council of the city.

On April 29, 2022, an announcement was posted in the local newspaper TURKISTAN about holding a competition to select members of the working group, indicating the composition of the working group of seven members, including two members from government agencies and five members from civil society (non-profit organizations, citizens).

The deadline for submitting documents is set within five calendar days from the date of the announcement. 156 In accordance with paragraph 8 of the Model Provision, the Maslikhat protocol of May 4, 2022, formed a list of candidates for the working group, which included representatives of government agencies: Chief of Staff of the Akim of the city E.B., chief inspector of the legal department of the Akim of the city B.M., chief specialist lawyer of the Maslikhat of the city A.K., from among the civil societies: K.E., O.M., representative from the public association "Ethno-cultural Society of the city" Z.N., representative from the public association "Women's Council of the City" M.G., a representative from the public association "Union of Disabled People and Veterans of the War in Afghanistan" N.P., by the Protocol of May 11, 2022, members of the working group were selected, which included seven of the above candidates, except for the chief legal specialist of the office of the Maslikhat of the city of A.K., the head of the working group M.G. was elected, the quantitative composition of the members was approved The Public Council consists of 15 people. Information about the competition for the election of members of the Public Council was published in the media. By the Protocol of June 7, 2022, the composition of the Public Council was elected by voting, approved by the decision of the city Maslikhat No. 18/105-7 dated August 12, 2022.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the court's decision is overturned, the claim is denied.

Cassation: the decision of the appeal is overturned, the court's decision is upheld.

Conclusions: The Court of First Instance motivated the satisfaction of the claim by the fact that the Maslikhat completed the procedure for accepting documents a day earlier and on May 4, 2022, a list of candidates for members of the working group was formed. Given that the time limit set by law of five calendar days is small, the violation of it, expressed in the reduction of this period by one day, is significant.

In fact, the deadline for accepting their documents has been significantly reduced for those who wish to participate in the working group candidates, which is unacceptable. The court of appeal motivated the cancellation of the decision of the court of first instance and the refusal to satisfy the claim by the fact that the plaintiffs had submitted an application for participation in the competition, and their applications for participation in the competition had not been rejected by the defendants. The plaintiff O.Zh. participated in all stages of the competition, A.N. did not appear to participate in the competition, having been duly notified of the time and place of the competition.

At the same time, the court of first instance correctly satisfied the plaintiffs' claims, since due to the announcement of the competition for the selection of members of the working group one day ahead of schedule, as well as the shortening of the deadline for submitting documents by one day, the plaintiffs could not submit documents and were deprived of the opportunity to participate in the competition for the selection of members of the working group.

In accordance with paragraph 27 of the Model Provision, the working group, within ten working days after the date of completion of the receipt of documents, discusses at a meeting the received documents from candidates for members of the Public Council, conducts an interview with each candidate and an open vote on each candidate. Candidates with the highest number of votes are considered elected to the Public Council.

For candidates with the same number of 9 votes, the head of the working group reserves the casting vote. According to the protocol of June 7, 2022, the voting procedure in respect of A.N. was not carried out.

In accordance with paragraph 1 of Article 8 of the Law, Public councils at the republican and local levels and their composition are formed by working groups, the heads of which are elected from among the members of working groups representing civil society by voting.

Paragraph 27 of the Model Provision also does not exclude voting for a candidate to be a member of the working group if he is absent from the interview. Paragraph 30 of the Model Provision provides that the members of the Working Group, based on the results of the discussion, taking into account the total scores of the candidates, form the composition of the Public Council by open voting.

In such circumstances, the voting procedure for candidates who did not attend the interview should be carried out.

 

 

 

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