Exclusive Venue at the Claimant’s Place of Location

The improper venue of claims is often associated with electronic administrative acts, in respect of which Article 106 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan establishes exclusive venue at the claimant’s place of location.

The Law of the Republic of Kazakhstan “On Electronic Documents and Electronic Digital Signatures” provides that an electronic document is a document in which information is presented in electronic and digital form and certified by means of an electronic digital signature (subparagraph 12) of Article 1 of the Law); an electronic digital signature is a set of electronic digital symbols created using electronic digital signature tools and confirming the authenticity of an electronic document, its attribution to the relevant person, and the integrity of its contents (subparagraph 16) of Article 1 of the Law).

Furthermore, Parts 1 and 2 of Article 81 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (hereinafter referred to as the “APPC”) establish, as a mandatory requirement, that an administrative act adopted in written (paper) form must be brought to the attention of the participant in the administrative procedure in accordance with Article 66 of the Code. An administrative act adopted in electronic form must be brought to the attention of the participant in the administrative procedure in accordance with the legislation of the Republic of Kazakhstan.

Accordingly, for the purposes of determining venue under Part 3 of Article 106 of the APPC, three conditions must be satisfied pursuant to the above provisions of the APPC and the applicable legislation: the information must be presented in electronic and digital form, certified by means of an electronic digital signature, and the administrative act must be brought to the attention of the participant in the administrative procedure through an electronic document exchange system.

By a ruling dated 22 October 2022, the Specialized Interdistrict Administrative Court of Astana returned a claim filed by a limited liability partnership against the Electronic Declaration Centre and the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan, seeking recognition as unlawful and annulment of a decision to amend (supplement) the information declared in a goods declaration (Case No. 7194-22-00-4/3564).

In returning the claim, the court of first instance, relying on Part 3 of Article 106 of the APPC, erroneously concluded that the claim was subject to consideration at the claimant’s place of location because the contested order had been issued in the form of an electronic document.

In the case under consideration, the requirements applicable to an electronic document had not been met because the contested decision of the state revenue authority had been issued on paper. The defendant had sent the contested administrative act to the claimant through the postal network operator, JSC Kazpost. This, in turn, precluded the application of the grounds provided for in Part 3 of Article 106 of the APPC.

Furthermore, the administrative act bore neither a handwritten signature nor an electronic digital signature. It contained only the full name of the authorised official, with no set of electronic digital symbols generated using electronic digital signature tools. Consequently, the administrative act could not be considered to have been issued in the form of an electronic document.

Accordingly, by a ruling dated 21 November 2022, the Judicial Panel for Administrative Cases of the Astana City Court set aside the ruling of the court of first instance and remitted the case for consideration on the merits. The judicial act entered into legal force.

Legal Framework

1. The Constitution of the Republic of Kazakhstan dated 30 August 1995;
2. The Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (hereinafter referred to as the “APPC”);
3. The Code of the Republic of Kazakhstan “On Customs Regulation in the Republic of Kazakhstan” (hereinafter referred to as the “RK Customs Code”);
4. The Customs Code of the Eurasian Economic Union, ratified by Law No. 115-VI of the Republic of Kazakhstan dated 13 December 2017 (hereinafter referred to as the “EAEU Customs Code”);
5. Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 29 November 2019, “On Certain Issues Concerning the Application of Customs Legislation by Courts”;
6. The Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget” (the Tax Code);
7. The Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the “Entrepreneurial Code”);
8. The Code of the Republic of Kazakhstan on Administrative Offences (hereinafter referred to as the “Code on Administrative Offences”);
9. The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the “CPC”);
10. The Treaty on the Eurasian Economic Union dated 29 May 2014 (hereinafter referred to as the “EAEU Treaty”);
11. Acts constituting the law of the EAEU (hereinafter referred to as “international treaties and acts in the field of customs regulation”);
12. Decision No. 42 of the Board of the Eurasian Economic Commission dated 27 March 2018, “On the Specifics of Conducting Customs Control of the Customs Value of Goods Imported into the Customs Territory of the Eurasian Economic Union”.

Abbreviations Used

JSCAP SC – Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;

JSCAP – Judicial Collegia for Administrative Cases of the regional courts and courts equated thereto;

SIAC – Specialized Interdistrict Administrative Courts of the regions of the country;

SI – State Institution;

RSI – Republican State Institution;

SRC – State Revenue Committee;

SRD – State Revenue Department;

SRO – State Revenue Office;

LLP – Limited Liability Partnership;

IE – Individual Entrepreneur.

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