On the recognition of illegal actions to make a submission to the ICJ on criminal prosecution for non-compliance with a court decision

No.6001-23-00-6ap/1961 dated 08/9/2023

Plaintiff: JSC "K"

Defendant: HSI D.

The subject of the dispute: on the recognition of illegal actions to make a submission on criminal liability for non-compliance with a court decision, on the obligation to eliminate violations, to cancel and withdraw the submission on criminal liability.

Review of the plaintiff's cassation appeal.

PLOT: On December 1, 2022, the CSI initiated enforcement proceedings to recover from the Company in favor of the Company "G" a penalty in the amount of 3 billion tenge, a refund of the state duty in the amount of 157.5 million tenge, as well as the costs of paying for the services of representatives in the amount of 4 million tenge.

On May 26, 2023, the bailiff sent to the Police Department of the district of the City Police Department a submission on bringing the debtor to criminal responsibility. On May 29, 2023, the submission was registered in the Unified Register of Pre-Trial Investigations for No. 237115031002214.

Judicial acts:

1st instance: the claim is satisfied.

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

Cassation: the judicial act is upheld.

Conclusions: in deciding to satisfy the claim, the court of first instance assumed that the bailiff violated the principle of administrative procedures, pointing out the need to ensure the principle of proportionality and compliance with the limits of administrative discretion. The Court of Appeal, canceling the court's decision and returning the claim, proceeded from the fact that making a submission is a measure aimed at bringing to justice persons who maliciously evade the execution of the executive document.

The Judicial Board agrees with the conclusions of the court of appeal, as they are based on the correct application of substantive law and the circumstances of the case. Chapter 5 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law) provides an exhaustive list of grounds for enforcement measures.

In this chapter, such an action as submitting a submission to the criminal prosecution authority is not included as a measure of compulsory execution.

In accordance with subparagraph 16) of paragraph 1 of Article 126 of the Law, the bailiff has the right, in accordance with the procedure established by law, to submit to the criminal prosecution body a submission on bringing to criminal responsibility persons who maliciously evade the execution of judicial acts and subparagraph 1) of paragraph 2 of the same article of the Law, the bailiff is obliged to take measures aimed at the enforcement of court acts.

In paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 12 "On liability for non-enforcement of judicial acts", it is clarified that in the submission (communication) on bringing the perpetrators to administrative or criminal responsibility, the bailiff must indicate what measures to counter the demands of the bailiff have been taken by the debtor or other persons, indicating that failure to execute a judicial act.

The submission (message) must be accompanied by:

a copy of the writ of execution; resolution on the initiation of enforcement proceedings;

documents confirming the facts of non-execution of a judicial act, or preventing it.

The criminal prosecution body may also require other necessary documents in accordance with the Criminal Procedure Law.

In accordance with paragraph 8 of the said regulatory resolution, the criminal prosecution body, in accordance with articles 179, 180, 181, 185 of the Criminal Procedure Code of the Republic of Kazakhstan, is obliged to consider the submission (message) of the bailiff, which is the basis for initiating a pre-trial investigation.

Thus, the actions of the bailiff to submit a submission to the criminal prosecution authorities are not a measure of compulsory execution. It follows from the content and meaning of these provisions of the Law that the action of the bailiff to submit a submission to the criminal prosecution authorities does not apply either to enforcement actions or to enforcement measures provided for in paragraph 1 of Article 27 of the Law.

In such circumstances, the conclusions of the court of appeal are justified that making a submission to the criminal prosecution authorities does not apply to either enforcement actions or enforcement measures, which excludes the possibility of challenging the said action in administrative proceedings.

 

 

 

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