Issuance of a Separate Ruling Against a Private Judicial Enforcement Officer for the Unlawful Lifting of Seizures from the Debtor’s Accounts

In the claim filed by M.S.L. against PJO TsI I.V. for declaring unlawful and annulling the decisions on the cancellation of measures securing the enforcement of an enforcement document, issued within enforcement proceedings (Case No. 3994-24-00-4/1167).

The Specialized Interdistrict Administrative Court of Kostanay Region established that the seizures imposed on the debtor I E.A.’s settlement accounts had been lifted by the PJO in violation of the requirements of the applicable legislation stipulated by Article 160 of the Civil Procedure Code, which resulted in the prolonged non-enforcement of the court judgment and the violation of the rights and legitimate interests of the claimant M.S.L.

By its judgment dated February 4, 2025, the SMAC satisfied the claim.

In granting the claim, the court concluded that the defendant had violated the requirements of the law, which resulted in the prolonged non-enforcement of the court judgment and the violation of the rights and legitimate interests of the claimant M.S.L., since the defendant had no right to lift the seizures from I E.A.’s settlement accounts while there was a legally effective ruling of the Kostanay City Court dated September 26, 2022, by which I E.A.’s application for cancellation of the interim measures in the form of seizure of bank accounts had been denied.

Furthermore, it follows from the legally effective separate ruling of the Kostanay City Court dated December 27, 2024, issued within the framework of the civil case considered upon I E.A.’s application for the application of the court bankruptcy procedure, that during the period from December 7, 2022 to the present, I E.A. carried out transactions involving funds in the amount of more than KZT 4,000,000 through Forte Bank JSC and more than KZT 2,000,000 through First Heartland Jusan Bank JSC.

The movement of funds is also evident from the statements of I E.A.’s settlement accounts with Kaspi Bank JSC and Bereke Bank JSC submitted by the claimant.

The court also found that the time limit for filing the claim had not been missed, since the claimant had not been notified by the judicial enforcement officer of the contested decisions.

Due to the violations committed by the defendant, on February 4, 2025, the court issued a separate ruling, which was brought to the attention of the head of the Regional Chamber of Private Judicial Enforcement Officers of Kostanay Region for taking appropriate measures and preventing similar violations in the future.

By the resolution and ruling of the Administrative Chamber of the Kostanay Regional Court dated March 12, 2025, the judgment and separate ruling of the court of first instance were upheld without change.

At the same time, during the consideration of the case, the judicial panel identified signs of a criminal offense in the actions of the defendant, PJO TsI I.V.

PJO TsI I.V. lifted the seizures from the debtor’s bank accounts without a relevant judicial act, which indicates an excess and abuse of his official powers.

The aforementioned unlawful actions of the defendant resulted in a substantial violation of the claimant’s rights, since the judicial acts rendered and the case materials established the fact that during the period from December 6, 2022 to the present, funds, including significant amounts of foreign currency, had been transferred through the debtor’s bank accounts and withdrawn by the debtor.

According to the response of the Deputy Prosecutor of Kostanay Region dated April 17, 2025, on March 29, 2025, the Police Department of Kostanay, pursuant to Part 5 of Article 181 of the Criminal Procedure Code, forwarded the materials to the State Institution “Department of Justice of Kostanay Region” for an investigation into the actions of PJO TsI I.

In most cases, the separate rulings were enforced, as confirmed by feedback received from the Regional Chamber of Private Judicial Enforcement Officers. However, the facts of systematic violations indicate the need for methodological oversight, training and professional development of PJOs concerning the application of the key provisions of the Law on Enforcement Proceedings.

Formulation of Claims

When filing an administrative claim challenging the actions (inaction) of judicial enforcement officers, claimants formulate their claims in various forms.

In general, disputes within the category under review are considered through claims for annulment, coercion, and performance of an action (Articles 132–134 of the APPC).

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

In the event of disagreement with a decision issued by a judicial enforcement officer, the claim should seek a declaration that the relevant decision is unlawful. There is no need to simultaneously file a claim seeking to declare the actions unlawful.

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

Where a decision is declared unlawful, the court shall annul the relevant decision.

Return of the Claim

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

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

Subparagraph 6) of Part 2 of Article 138 of the APPC – the claimant has withdrawn the claim filed;

Subparagraph 9) of Part 2 of Article 138 of the APPC – the parties have entered into an agreement on reconciliation, mediation, or 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 judicial proceedings;

Subparagraph 17) of Part 2 of Article 138 of the APPC – the case is not within the jurisdiction of the relevant court.

Another ground for returning a claim is provided for in Part 8 of Article 136 of the APPC, according to which 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, constitutes grounds for returning the claim.

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

At the same time, 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 the conclusion of an agreement or withdrawal of the claim).

Time Limit for Appealing a Court Judgment

Part 4 of Article 168 of the APPC provides that an appeal and a prosecutor’s motion in administrative cases challenging the actions (inaction) of judicial enforcement officers may be filed within ten working days from the date on which the judgment is issued in its final form. The judgment shall be prepared no later than ten working days from the date of its pronouncement.

Amendments to this provision were introduced on November 21, 2024, pursuant to the Constitutional Court of the Republic of Kazakhstan’s Regulatory Resolution No. 33-NP dated October 6, 2023, “On Consideration of the Compliance of the First Paragraph of Part Four of Article 168 of the APPC with the Constitution of the Republic of Kazakhstan.”

As follows from the Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan No. 33-NP dated October 6, 2023, “On Consideration of the Compliance of the First Paragraph of Part Four of Article 168 of the APPC with the Constitution of the Republic of Kazakhstan,” the provisions of Part 4 of Article 168 of the APPC derive from the provisions of Part 2 of the same Article, which establish the general rules for appealing court judgments that have not entered into legal force, with the time limit calculated from the date on which the court judgment is issued in its final form.

Accordingly, the ten-working-day period established for filing an appeal and a prosecutor’s motion in administrative cases challenging the actions (inaction) of judicial enforcement officers must be calculated from the date on which the judgment is issued (prepared) in its final form. This is because the time limit established by the APPC for filing an appeal (ten working days from the date of issuance of the court judgment) may in fact expire before the judgment is prepared in its final form, depriving participants in the proceedings of the opportunity to familiarize themselves with its reasoning and fully exercise their right to appeal.

The Constitutional Court indicated that such regulation may restrict the constitutionally guaranteed right to judicial protection, the right to 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 judgment,” “date of preparation of the judgment in its final form,” etc.) are not sufficiently precise from a legal standpoint and permit ambiguous interpretation, thereby creating risks of violating the rights of participants in the proceedings.

As a result, the Constitutional Court recognized the contested provision as consistent with the Constitution only insofar as the time limit for filing an appeal and a prosecutor’s appellate motion in the categories of administrative cases specified in Part 4 of Article 168 must be calculated not from the moment the operative part of the judgment is pronounced, but from the date on which the court judgment is issued (prepared) in its final form.

Prior to the introduction of the above 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 judgment of the court of first instance.

The Administrative Chamber for Administrative Cases of the Supreme Court of the Republic of Kazakhstan (SCAD of the Supreme Court) confirmed the priority of the constitutional and legal interpretation of procedural provisions and established judicial practice ensuring uniform calculation of the time limits for appellate review—from the date on which the judgment 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 judicial 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, shall be determined by the provisions of the CPC, except for the specific features established by the APPC (Article 128 of the APPC).

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

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 PJO acted.

The PJO's decisions being challenged, indicating their date and content.

Documents Confirming Violations:

Payment receipts, correspondence with the PJO, notices (reports on the delivery of SMS notifications), witness testimony, property valuation reports, property inventory records, 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 submitted to the justice authorities or the Chamber of PJOs (where a complaint has been filed against the actions of a PJO, a copy of the complaint and the responses thereto may also be used as evidence).

Witness Testimony:

Witnesses who can confirm the circumstances of the case shall be summoned to court to give testimony.

Recovery of State Duty

Plaintiffs bringing claims challenging the actions (inaction) of judicial enforcement officers are exempt from payment of the 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 paragraph 1 of Article 122 of the APPC, issues concerning the allocation of court costs shall be considered in accordance with the rules of the CPC.

Under paragraph 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, to the state budget in full or proportionally to the satisfied part of the claim.

Where the claim is satisfied, the state duty shall be recovered from the judicial enforcement officer in favor of the local budget in proportion to the satisfied part of the claim.

The rate of the state duty is calculated in accordance with the rules of 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 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 shall 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 in cases of submitting evidence or complying with instructions in violation of the deadline established by the court without valid reasons, where this has resulted in delaying the consideration of an administrative case, in the amount of ten monthly calculation indices for each action (inaction).

For failure to comply with a court requirement or request, failure of a person participating in an administrative case to appear in court, untimely notification of the court, untimely submission of a response, failure to comply with the instructions of the presiding judge during a court hearing, violation of the rules established by the court, as well as other actions (inaction) clearly indicating disrespect for the court and/or judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices.

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

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

• untimely submission of the response;
• untimely submission of the enforcement proceedings materials;
• submission of the enforcement proceedings materials not in full;
• 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 Judicial Enforcement Officers” – Law on Enforcement Proceedings;
• NS SC – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;
• Rules for the Sale of Seized Property, Including through Auction in the Form of an Electronic Auction – Rules;
• AIAS – Automated Information and Analytical System of the Judicial Bodies of the Republic of Kazakhstan “Tөрелік”;
• Administrative Chamber of the Supreme Court (SCAD SC) – Administrative Chamber for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;
• Administrative Chamber or Chamber – Administrative Chamber for Administrative Cases;
• SMAC – Specialized Interdistrict Administrative Court;
• DOJ – Department(s) of Justice;
• SJO – State Judicial Enforcement Officer(s);
• PJO – Private Judicial Enforcement Officer(s);
• EP – Enforcement Proceedings.

The Main 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 Valuation 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”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1 “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 12 “On Liability for Non-Execution of Judicial Acts”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2 “On Taking Interim Measures in Civil Cases”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2024 No. 5 “On Judicial Decisions in Administrative Cases”;
• Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2019 No. 6 “On the Application by Courts of Legislation in Considering Cases Related to the Recovery of Alimony”;
• Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 “On Approval of the Amounts of Remuneration for the Activities of Private Judicial Enforcement Officers” (repealed on July 13, 2023);
• Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372 “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 dated June 27, 2023 No. 416 “On Approval of the Amounts of Remuneration for the Activities of Private Judicial Enforcement Officers”;
• Order of the Minister of Justice of the Republic of Kazakhstan dated March 28, 2019 No. 148 “On Approval of Standard Forms of Resolutions of Private Judicial Enforcement Officers.”

•  

•  

• Attention!   

•        Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

•  For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

•  

• Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases