On the cancellation of the Sports Administration order and the recognition of the valid certificate of accreditation and the order
No. 6001-23-00-6ap/76 dated 07/27/2023
Plaintiff: NGO "Union of Chess players of the city"
Defendant: KSU "City Sports Administration"
Subject of dispute: cancellation of the order, recognition of the valid certificate of accreditation and the order
Review of the plaintiff's cassation appeal.
PLOT: On September 10, 2015, the Department of Physical Culture and Sports of the city issued the certificate of accreditation of the sports Federation No. 035 to the plaintiff, confirming his authority and rights to develop chess in the city.
On August 20, 2021, the defendant in his letter no. 48.1-48.04.21/24- And, he informed the plaintiff about the absence of a report on the work done, information on the number of coaches, halls and financing identified by the results of the monitoring of the work done.
The defendant also informed the plaintiff in the letter of his intention to revoke his accreditation. On March 10, 2022, the defendant, based on the minutes of March 10, 2022 No. 4 of the meeting of the Commission on Accreditation of Sports Federations, issued the disputed order No. 1 revoking the certificate of accreditation No. 035 issued on September 10, 2015, as well as recognizing the order dated September 7, 2015 No. 4 "Sports federationaryn accredittu Turaly".
Disagreeing with the disputed order, the plaintiff appealed to the court.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision of the court of first instance is overturned. A new decision was made to dismiss the claim.
Cassation: the decision of the appeal is overturned, the court's decision is upheld.
Conclusions: The Court of First Instance justified the conclusions on the satisfaction of the claim by violations on the part of the defendant of the requirements of the accreditation revocation procedure provided for in the "Rules of Accreditation of Sports Federations" approved by Order of the Minister of Culture and Sports of the Republic of Kazakhstan dated November 27, 2014 No. 121 (hereinafter referred to as the Rules).
The Court of Appeal, overturning the decision and rejecting the claim, proceeded from the fact that since the plaintiff's prior notifications of the defendant remained unanswered, the order to revoke the accreditation certificate was issued lawfully and this circumstance is consistent with subparagraph 1) Paragraph 33 of the Rules.
Also, the court of appeal did not take into account the defendant's arguments about the destruction of documentation as a result of the fire in the office building on January 5, 2022 and the loss of the disputed order.
This circumstance took place, and the fact of a fire that occurred during mass riots and damage to the building of the Mayor's office of the city is confirmed by information registered by the city's Emergency Management Department on January 4, 2022, as well as by a resolution of a member of the interdepartmental investigative task force of the Prosecutor's office of the city of S.B. dated May 19, 2022, which, after reviewing the materials of the criminal case, recognized the KSU "Sports Department cities" to the victims in this criminal case.
However, such conclusions of the court of appeal are erroneous, they are based on assumptions and unproven circumstances relevant to the case.
By virtue of subparagraph 2) of paragraph 29 of the Rules, the grounds for suspending the certificate are non-fulfillment of the activities provided for in the comprehensive target program for the type (types) of sports.
According to paragraphs 30, 31 of the Rules, the order of the authorized body or local executive body on the suspension of the certificate sets a time limit for eliminating the reasons that served as the basis for the suspension.
The period of suspension of the certificate does not exceed six months. In accordance with subparagraph 1) According to paragraph 33 of the Rules, the certificate of accreditation is revoked if the reasons that served as the basis for suspending the certificate are not eliminated within the time limits established by the authorized body or local executive bodies. As the court of first instance correctly pointed out, according to the above rule, the defendant had the right to revoke the certificate of accreditation if he followed the administrative procedure regulated in the Rules.
Only if the plaintiff failed to remedy the violations that served as the basis for suspending the certificate within the time limits set by the order suspending the accreditation certificate, the defendant had the right to issue an order revoking the accreditation certificate.
The defendant himself confirmed that, at his request dated January 27, 2021, the plaintiff provided a progress report, but it did not reflect all the necessary information. In such circumstances, the defendant had the right to order the suspension of the plaintiff's accreditation certificate in early 2021, with a deadline of up to six months.
In accordance with paragraph 3) of the second part of Article 129 of the CPC, the burden of proof for a challenge claim is borne by the defendant who has adopted an onerous administrative act.
The plaintiff's arguments that the defendant did not issue an order to suspend the accreditation certificate with a deadline for eliminating the reasons for the suspension have not been refuted.
The defendant's reference to the destruction of documentation as a result of the fire that occurred on January 5, 2022 and the loss of the issued order to suspend the certificate of accreditation of the plaintiff was correctly declared untenable by the court of first instance. The information registered by the KUI of the Emergency Department of the city dated January 4, 2022, the resolution recognizing the KSU "City Sports Department" as a victim in a criminal case does not contain information about the destruction of the order suspending the certificate of accreditation.
According to the fifth part of Article 68 of the CPC, the court cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:
1) the original document has been lost and has not been handed over to the court;
2) the copies of this document submitted by each of the disputing parties are not identical to each other;
3) it is impossible to establish the content of the original document with the help of other evidence.
The totality of evidence is considered sufficient to resolve the case if acceptable and reliable evidence has been collected that indisputably confirms the circumstances relevant to the case and has not been refuted by the other party.
The defendant did not provide the court with indisputable evidence confirming the suspension of the accreditation certificate (the original of the order or its copy), as well as its transmission to the plaintiff.
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