Issuance of a Private Ruling in Connection with the Failure to Take Measures to Ensure Enforcement of an Enforcement Document

T.K. filed a claim with the court against private bailiff E.N.B., seeking to have the resolution terminating the enforcement proceedings (6394-22-00-4/913) declared unlawful and annulled.

By a decision of the Specialized Inter-District Administrative Court (SMAS) dated January 19, 2023, the claim was fully satisfied.

During the consideration of the case and examination of the enforcement proceedings materials, the Judicial Collegium for Administrative Cases of the East Kazakhstan Regional Court established that, in violation of the requirements of Article 32 of the Law on Enforcement Proceedings, the private bailiff had failed to take measures to ensure enforcement of the enforcement document (prohibiting the debtor from taking certain actions) when initiating the enforcement proceedings.

Due to the absence of measures to ensure enforcement of the enforcement document, on February 13, 2021, the debtor, Lebedev V.V., was removed from the registration records as an individual entrepreneur (hereinafter referred to as the “IE”).

Subsequently, the fact that the debtor had been removed from the registration records served as grounds for terminating the enforcement proceedings against L.V.V. on the grounds that enforcement of the enforcement document was impossible.

In view of the violations established, the court issued a private ruling addressed to the management of the Regional Chamber of Private Bailiffs of East Kazakhstan regarding the violations of enforcement proceedings legislation committed by private bailiff E.N.B., specifically the failure to take measures to ensure enforcement in enforcement proceedings No. 1109/20-63-3046, which required IE L.V.V., at his own expense and free of charge, to remedy defects in the repair works at residential buildings Nos. 58 and 60 on Ostrovsky Street in the city of Ust-Kamenogorsk.

The private ruling was not appealed and entered into legal force. The Regional Chamber of Private Bailiffs provided a response stating that the private bailiff had been subjected to disciplinary liability in the form of a “reprimand.”

Formulation of Claims

When filing an administrative claim challenging the actions (inaction) of bailiffs, plaintiffs formulate their claims in various ways.

In general, disputes falling within this category are considered through claims challenging administrative acts, seeking enforcement, and requiring the performance of certain actions (Articles 132–134 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (APPC)).

Pursuant to Article 132 of the APPC, where an administrative act imposing a burden violates the rights, freedoms, and legitimate interests of the plaintiff, the plaintiff has the right to file a claim challenging the administrative act and seeking its annulment in whole or in part.

Where the plaintiff disagrees with a resolution issued by a bailiff, the claim should seek to have that resolution declared unlawful. There is no need to simultaneously file a claim seeking to have the bailiff’s actions declared unlawful.

Pursuant to Part 2 of Article 84 of the APPC, an unlawful administrative act may be annulled in whole or in part.

Where a resolution is declared unlawful, the court annuls the said resolution.

Return of an Administrative Claim

Part 2 of Article 138 of the APPC provides for 17 grounds for returning an administrative claim.

Cases in the category under review are most frequently returned on the following grounds:

Subparagraph 6) of Part 2 of Article 138 of the APPC — the plaintiff has withdrawn the claim filed;

Subparagraph 9) of Part 2 of Article 138 of the APPC — the parties have entered into a reconciliation agreement, mediation agreement, or an agreement on settlement of the dispute through a participatory procedure, and the agreement has been approved by the court;

Subparagraph 11) of Part 2 of Article 138 of the APPC — the case is not subject to consideration under administrative court proceedings;

Subparagraph 17) of Part 2 of Article 138 of the APPC — the case does not fall within the jurisdiction of the court.

Another ground for returning an administrative claim is provided for in Part 8 of Article 136 of the APPC. Pursuant to this provision, failure to comply with the time limit for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed time limit for applying to the court, constitute grounds for returning the claim.

Courts do not encounter difficulties in resolving the issue of returning claims in the category under review.

At the same time, the implementation of the principle of the active role of the court has made it possible to significantly increase the number of cases resolved amicably (through conclusion of an agreement or withdrawal of the claim).

Time Limit for Appealing a Court Decision

Part four of Article 168 of the APPC provides that an appellate complaint or a prosecutor's motion in administrative cases challenging the actions (inaction) of bailiffs may be filed within ten working days from the date the decision is issued in its final form. The decision in its final form is prepared no later than ten working days from the date the decision is announced. Amendments to this provision were introduced on November 21, 2024, pursuant to the Constitutional Court of the Republic of Kazakhstan Resolution No. 33-NP dated October 6, 2023, “On Consideration of the Constitutionality of the First Paragraph of Part Four of Article 168 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan.”

As follows from Constitutional Court of the Republic of Kazakhstan Resolution No. 33-NP dated October 6, 2023, “On Consideration of the Constitutionality of the First Paragraph of Part Four of Article 168 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan,” the provisions of Part Four of Article 168 of the APPC derive from the provisions of Part Two of the same article, which establish the general rules for appealing court decisions that have not entered into legal force. The relevant time limit is calculated from the date the court decision is issued in its final form.

Accordingly, the ten-working-day period established for filing an appellate complaint or a prosecutor's motion in administrative cases challenging the actions (inaction) of bailiffs must be calculated from the date the decision is issued (prepared) in its final form. This is because the time limit for filing an appellate complaint established by the APPC (ten working days from the date the court decision is issued) could, in practice, expire before the decision is prepared in its final form. This would deprive the participants in the proceedings of the opportunity to familiarize themselves with the reasoning of the decision and fully exercise their right to appeal.

The Constitutional Court indicated that such legal regulation may restrict the right to judicial protection guaranteed by the Constitution, the right to receive qualified legal assistance, and the principle of equality of all before the law and the court.

The Constitutional Court noted that the concepts used in the APPC (“date of issuance of the decision,” “date of preparation of the decision in its final form,” etc.) are not sufficiently precise from a legal perspective and allow for ambiguous interpretation, thereby creating risks of violations of the rights of participants in the proceedings.

As a result, the Constitutional Court recognized the challenged provision as being consistent with the Constitution only in the interpretation that, in the categories of administrative cases specified in Part Four of Article 168, the time limit for filing an appellate complaint and a prosecutor's appellate motion must be calculated not from the moment the operative part of the decision is announced, but from the date the court decision is issued (prepared) in its final form.

Prior to the introduction of the above-mentioned amendments to Part 4 of Article 168 of the APPC, local courts applied different interpretations of this provision with regard to calculating the time limit for appealing a decision of a court of first instance.

The Judicial Collegium for Administrative Cases of the Supreme Court confirmed the priority of constitutional and legal interpretation of procedural rules and established a practice ensuring uniform calculation of the time limits for appellate review—from the date the decision is prepared in its final form.

This practice is of systemic importance, as it eliminates inconsistencies in judicial practice and contributes to ensuring that the parties have a genuine opportunity to exercise their right to judicial protection within the framework of administrative court proceedings.

Evidence and Proof

The procedure for the legal regulation of evidence, factual data that are inadmissible as evidence, the subject matter of proof and sources of evidence, as well as the collection, examination, assessment and use of evidence (proof), and other provisions concerning evidence and proof are determined by the rules of the Civil Procedure Code (CPC), except for the specific features established by the Administrative Procedural and Process-Related Code (APPC) (Article 128 of the APPC).

When challenging the actions of a private bailiff in court, various documents and materials confirming violations by the private bailiff may serve as evidence. It is necessary to establish specific facts indicating unlawful actions or inaction.

The evidence (the bound and numbered enforcement proceedings file) includes:

Enforcement document:

The original or a certified copy of the writ of execution or court order on the basis of which the private bailiff acted.

The resolutions of the private bailiff being challenged, indicating their date and content.

Documents confirming violations:

Payment receipts, correspondence with the private bailiff, notifications (reports confirming delivery of SMS notifications), witness statements, property valuation reports, property inventory protocols, inspection reports, certificates confirming non-residence, photographs, video recordings, and any other materials confirming the violation of the applicant's rights and legitimate interests.

Complaints filed with the justice authorities or the Chamber of Private Bailiffs:

Where a complaint has been filed against the actions of a private bailiff, a copy of the complaint and the responses thereto may also be used as evidence.

Witness statements:

Witnesses who can confirm the circumstances of the case are summoned to court to give evidence.

Recovery of State Duty

Plaintiffs filing claims challenging the actions (inaction) of bailiffs are exempt from payment of state duty when filing a claim with the court pursuant to Subparagraph 15) of Article 616 of the Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget.”

Pursuant to Part 1 of Article 122 of the APPC, issues concerning the allocation of court costs are considered in accordance with the rules of the CPC.

Under Part 1 of Article 117 of the CPC, the state duty from which the plaintiff was exempt, as well as expenses related to the proceedings, shall be recovered from the defendant who is not exempt from payment of court costs, in favor of the state, in full or proportionally to the satisfied part of the claim.

Where the claim is satisfied, the state duty payable to the local budget shall be recovered from the bailiff in proportion to the satisfied part of the claim.

The amount of the state duty is calculated in accordance with Subparagraph 8) of Paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (0.5 monthly calculation index (MCI)).

Application of Procedural Coercive Measures

Where a violation of procedural legislation is established during the consideration of a case, procedural coercive measures in the form of a monetary penalty may be applied.

Pursuant to Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including for submitting evidence or executing court instructions in violation of the time limit established by the court without valid reasons, where this has resulted in the delay of consideration of an administrative case, in the amount of ten monthly calculation indices (MCIs) for each action (inaction).

For failure to comply with a court's requirement or request, failure of a person participating in an administrative case to appear in court, failure to notify the court in a timely manner, failure to submit a response within the prescribed time limit, failure to comply with the instructions of the presiding judge during a court hearing, violation of the rules established in court, as well as for other actions (inaction) clearly demonstrating disrespect for the court and/or judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices (MCIs).

For failure to comply with a court decision or a court ruling approving an agreement between the parties on reconciliation, mediation, or settlement of the dispute through a participatory procedure, the court imposes a monetary penalty on the defendant in the amount of fifty monthly calculation indices (MCIs), specifying in the same judicial act a period not exceeding one month within which the decision or ruling must be enforced.

During the period under review, judicial practice has developed regarding the application of procedural coercive measures in the form of monetary penalties. In disputes concerning challenges to the actions (inaction) of bailiffs, monetary penalties were most frequently imposed on defendants for the following reasons:

• failure to submit a response in a timely manner;
• failure to submit the enforcement proceedings materials in a timely manner;
• submission of incomplete enforcement proceedings materials;
• failure to appear at a court hearing (or failure to connect online) without a valid reason.

Abbreviations Used:

• APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;
• CPC – Civil Procedure Code of the Republic of Kazakhstan;
• CC – Civil Code of the Republic of Kazakhstan;
• Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs” – Law on Enforcement Proceedings;
• RPS – Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan;
• Rules for the Sale of Seized Property, Including through Electronic Auctions – Rules;
• IAS – Automated Information and Analytical System of the Judicial Bodies of the Republic of Kazakhstan “Törелік”;
• JCAD SC – Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;
• JCAD or Collegium – Judicial Collegium for Administrative Cases;
• SMAC – Specialized Inter-District Administrative Court;
• DOJ – Department(s) of Justice;
• SBE – State Bailiff(s);
• PBE – Private Bailiff(s);
• EP – Enforcement Proceedings.

The principal regulatory legal acts governing enforcement proceedings are:

• Constitution of the Republic of Kazakhstan;
• APPC;
• CC;
• CPC;
• Law on Enforcement Proceedings;
• Law of the Republic of Kazakhstan “On Appraisal Activities in the Republic of Kazakhstan”;
• Law of the Republic of Kazakhstan “On Mediation”;
• Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated March 31, 2017, “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 12 dated December 19, 2003, “On Liability for Non-Execution of Judicial Acts”;
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 2 dated January 12, 2009, “On Taking Interim Measures in Civil Cases”;
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated November 29, 2024, “On Court Decisions in Administrative Cases”;
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated November 29, 2019, “On the Application by Courts of Legislation in the Consideration of Cases Related to the Recovery of Alimony”;
• Resolution of the Government of the Republic of Kazakhstan No. 437 dated May 4, 2014, “On Approval of the Amounts of Remuneration for the Activities of Private Bailiffs” (repealed on July 13, 2023);
• Order of the Minister of Justice of the Republic of Kazakhstan No. 372 dated December 24, 2014, “On Approval of the List of Types of Wages and/or Other Income from Which Alimony for the Maintenance of Minor Children Is Withheld”;
• Order of the Minister of Justice of the Republic of Kazakhstan No. 416 dated June 27, 2023, “On Approval of the Amounts of Remuneration for the Activities of Private Bailiffs”;
• Order of the Minister of Justice of the Republic of Kazakhstan No. 148 dated March 28, 2019, “On Approval of Standard Forms of Resolutions of Private Bailiffs.”

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