On the recognition of actions as illegal and on the obligation to commit actions

No.6001-23-00-6ap/399 dated 08/15/2023

Plaintiff: M.A.

Respondent: RSU "Committee on State Material Reserves of the Ministry of Emergency Situations of the Republic of Kazakhstan"

The subject of the dispute: the recognition of actions as illegal, the obligation to commit actions.

Review of the plaintiff's cassation appeal.

PLOT: By the decision of the city district court of November 14, 2022, in a civil case, E.K.'s claim to the Committee was denied to recognize as illegal the order on dismissal, reinstatement, recovery of wages for the period of forced absenteeism and compensation for moral damage.

As part of the consideration of this case, the request for the defendant's mobilization documents was refused.

The representative of the plaintiff, M.A., appealed to the Committee with a lawyer's request for familiarization with the above-mentioned documents, which was refused. M.A. appealed the Committee's actions in court.

Judicial acts:

1st instance: the claim is returned.

Appeal: the court ruling is upheld.

Cassation: judicial acts were annulled, the case was sent for consideration on the merits to the SMAS.

Conclusions: The Court of First instance, returning the administrative claim, proceeded from the fact that M.A. does not have the right to file this claim (subparagraph 4) of the second part of Article 138 of the CPC), due to the absence of violated rights, since the refusal to review the documents directly affects the interests of E.K.

The Court of Appeal, while upholding the court's ruling and changing the grounds for returning the claim, proceeded from the fact that the plaintiff's claim was not subject to consideration in administrative proceedings (subparagraph 11) of the second part of Article 138 of the CPC).

At the same time, in the opinion of the court of this instance, in view of the Committee's refusal to review the documents, as well as the court's failure to satisfy the petition for their recovery and examination as evidence in a civil case, the plaintiff has the right, in accordance with the procedure provided for in part two of Article 413 of the CPC, to file a similar petition when considering a civil case on appeal. However, such conclusions of the courts are erroneous.

According to paragraph 8 of Article 35 of the Law of the Republic of Kazakhstan "On Advocacy and Legal Assistance" dated July 5, 2018 No. 176 VI SAM, state bodies, local governments and legal entities are required to provide a written response to a lawyer's request for legal assistance within ten working days.

Provision of the requested information to the lawyer may be refused if the information is classified as restricted information. An analysis of the above rule allows us to conclude that a lawyer's request can be submitted only in connection with the provision of legal assistance.

The right to request arises from the date of receipt of the request for legal assistance and regardless of the stage of consideration of the case. The court's failure to satisfy a request for assistance in obtaining evidence does not prevent a lawyer from exercising his rights to collect evidence by requesting information.

The courts also failed to take into account that, in accordance with the second part of Article 89 of the CPC, responses to a message, proposal, response, request must be well-founded and motivated in the state language or the language of the appeal with reference to the legislation of the Republic of Kazakhstan, contain specific facts refuting or confirming the applicant's arguments, explaining his right to file a complaint. on the decision made.

In accordance with sub-paragraphs 5) and 7) of the first part of Article 4 of the CPC, the Committee is an administrative body that is authorized to commit an administrative act (inaction) in public relations.

 

 

 

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