Violations by a Private Bailiff in the Conduct of Enforcement Proceedings

By the decision of the Specialized Interdistrict Administrative Court of Kostanay Region dated 29 October 2024, the claim filed by Obshchezhitie LLP against private bailiff L.Ya. Shakarova was granted, declaring unlawful and cancelling the ruling dated 16 March 2024 on the termination of enforcement proceedings. A special ruling was issued against private bailiff L.Ya. Shakarova and forwarded to the Regional Chamber of Private Bailiffs (case No. 3994-24-00-4/816).

It was established that on 15 April 2016, private bailiff L.Ya. Shakarova initiated enforcement proceedings No. 1118/16-39-2001 for the recovery from E.F. Leksina, in favour of Obshchezhitie LLP, of a debt in the amount of KZT 150,253.

On 16 March 2024, the enforcement proceedings were terminated on the grounds that the enforcement document had been fully executed.

However, during the court hearing, it was established that there were no documents confirming the execution of the court decision. Moreover, in response to the request of the court of first instance, not all materials of the enforcement proceedings were submitted, including the original enforcement document. The respondent misled the court regarding its alleged loss.

Furthermore, the materials of the enforcement proceedings contained no information regarding all enforcement actions taken or the correspondence conducted with the parties to the enforcement proceedings. Consequently, the Judicial Chamber for the Review of Judicial Acts of the Kostanay Regional Court requested these documents from the creditor and the debtor, whereas they should have been contained in the enforcement proceedings file.

In this connection, the Specialized Interdistrict Administrative Court of Kostanay Region and the Judicial Chamber for the Review of Judicial Acts of the Kostanay Regional Court issued two special rulings addressed to private bailiff L.Ya. Shakarova. Following their consideration, the Head of the Regional Chamber of Private Bailiffs of Kostanay Region imposed a severe reprimand on private bailiff L.Ya. Shakarova.

Persons Participating in the Case

Pursuant to Part 1 of Article 26 of the Administrative Procedure and Process Code (APPC), participants in administrative proceedings are the plaintiff, the defendant, an interested party, and the prosecutor.

According to Subparagraph 33) of Part 1 of Article 4 of the APPC, a plaintiff is a person who applies to the court for the protection of his or her violated or disputed rights, freedoms, and legitimate interests, or a person in whose interests a claim has been filed by a prosecutor or another person vested with such authority under the laws of the Republic of Kazakhstan.

Pursuant to Subparagraph 15) of Part 1 of Article 4 of the APPC, a defendant is an administrative body or official against whom a claim has been filed in court.

Under Part 1 of Article 30 of the APPC, an interested party is a person whose rights, freedoms, and legitimate interests are affected or may be affected by a judicial act.

In practice, disputes with bailiffs often arise involving persons who are not parties to the enforcement proceedings. This provision grants the right to judicial protection where a legally protected interest exists.

When claims are filed by persons who are not parties to the enforcement proceedings, the courts must determine whether another means of protecting and restoring the disputed right is available and whether the actions taken have resulted in direct legal consequences for the plaintiff.

In accordance with Article 31 of the APPC, the prosecutor exercises supreme supervision over compliance with the law and participates in administrative proceedings in order to provide an opinion.

Where necessary, when considering cases involving plaintiffs and defendants in disputes not related to entrepreneurial activity, who are participants in the Great Patriotic War, persons equated with them, military servicemen performing compulsory military service, persons with disabilities of Groups I and II, and age pensioners, advocates (legal consultants) are involved in the proceedings.

In claims affecting the interests of minors, guardianship and trusteeship authorities are involved in the proceedings, with the mandatory participation of their legal representatives.

In addition, within the framework of the Memorandum of Cooperation, representatives of the Regional Chamber of Private Bailiffs are involved in the proceedings where necessary.

Formulation of Claims

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

As a rule, disputes within the category under review are considered through claims for contestation, coercion, and the performance of actions (Articles 132–134 of the APPC).

Pursuant to Article 132 of the APPC, where an administrative act imposing a burden violates the rights, freedoms, or legitimate interests of the plaintiff, the plaintiff is entitled to file a claim for contestation seeking the annulment of the administrative act in whole or in part.

Where a party disagrees with a ruling issued by a bailiff, the claim should seek a declaration that the relevant ruling is unlawful. It is not necessary to simultaneously file a separate claim seeking a declaration that the bailiff's actions are unlawful.

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

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

Return of a Claim

Part 2 of Article 138 of the Administrative Procedure and Process Code (APPC) provides for 17 grounds for returning an administrative claim.

Cases of the category under consideration are most frequently returned on the following grounds:

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

Subparagraph 9) of Part 2 of Article 138 of the APPC — the parties have entered into a settlement agreement, a mediation agreement, or an agreement on the settlement of the dispute through a participatory procedure, and such 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 in which the claim was filed.

An additional ground for returning a claim is provided for in Part 8 of Article 136 of the APPC, according to which failure to meet the statutory 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 generally encounter no difficulties in resolving the issue of returning claims in the category of cases under analysis.

At the same time, the implementation of the principle of the court's active role has significantly increased the number of cases resolved amicably, either through the conclusion of an agreement or the withdrawal of a claim.

Time Limit for Appealing a Court Decision

Part 4 of Article 168 of the APPC provides that an appellate complaint or a prosecutor's application in administrative cases challenging the actions (inaction) of bailiffs may be filed within ten working days from the date on which the decision is issued in its final form. The final form of the decision must be prepared no later than ten working days from the date of its pronouncement.

Amendments to this provision were introduced on 21 November 2024 in implementation of Regulatory Resolution No. 33-NP of the Constitutional Court of the Republic of Kazakhstan dated 6 October 2023, “On the Review of the Compliance with the Constitution of the Republic of Kazakhstan of the First Paragraph of Part 4 of Article 168 of the Administrative Procedure and Process Code.”

As follows from Regulatory Resolution No. 33-NP of the Constitutional Court of the Republic of Kazakhstan dated 6 October 2023, 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 decisions that have not entered into legal force, with the relevant period calculated from the date on which the court decision is issued in its final form.

Accordingly, the ten-working-day time limit established for filing an appellate complaint or a prosecutor's application in administrative cases challenging the actions (inaction) of bailiffs must be calculated from the date on which the decision is issued (prepared) in its final form. Otherwise, the time limit for filing an appeal established by the APPC — ten working days from the date of issuance of the court decision — may, in practice, expire before the decision is prepared in its final form, thereby depriving the participants in the proceedings of the opportunity to ознакомиться with its reasoning and to fully exercise their right to appeal.

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

The Constitutional Court also noted that the terms used in the APPC, such as “the date of issuance of the decision”, “the date on which the decision is prepared in its final form”, and others, are not sufficiently precise from a legal perspective and allow for ambiguous interpretations, thereby creating risks of violations of the rights of participants in the proceedings.

As a result, the Constitutional Court found the challenged provision to be consistent with the Constitution only under the interpretation that the time limit for filing an appellate complaint and a prosecutor's appellate application in the categories of administrative cases specified in Part 4 of Article 168 must be calculated not from the date of pronouncement of the operative part of the decision, but from the date on which the court decision is issued (prepared) in its final form.

Before the above amendments were introduced to Part 4 of Article 168 of the APPC, local courts applied differing interpretations of this provision with respect to the calculation of the time limit for appealing a decision of a court of first instance.

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

This practice is of systemic importance, as it eliminates inconsistencies in judicial practice and helps ensure that 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 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 relating to evidence and proof, is governed by the norms of the Civil Procedure Code (CPC), except for the specific features established by the APPC (Article 128 of the APPC).

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

Evidence (the enforcement proceedings file, bound and with consecutively numbered pages) 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 challenged rulings of the private bailiff, indicating their dates and contents.

Documents confirming violations:

Payment receipts, correspondence with the private bailiff, notifications (reports confirming the 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 violations of the applicant's rights and legitimate interests.

Complaints submitted to justice authorities or the Chamber of Private Bailiffs (where a complaint against the actions of a private bailiff has been filed, 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 are summoned to court to give testimony.

Recovery of State Duty

Plaintiffs in claims challenging the actions (inaction) of bailiffs are exempt from payment of state duty upon 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 Mandatory Payments to the Budget.”

In accordance with Part 1 of Article 122 of the Administrative Procedure and Process Code (APPC), issues concerning the allocation of court costs are considered in accordance with the rules of the Civil Procedure Code (CPC).

Pursuant to 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 full or in proportion to the part of the claim that has been satisfied, for the benefit of the State.

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

The rate of 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 Mandatory Payments to the Budget” and amounts to 0.5 of the Monthly Calculation Index (MCI).

Application of Procedural Coercive Measures

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

In accordance with Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to fulfil procedural obligations, including in cases of submitting evidence or executing court instructions in breach of the time limit established by the court without valid reasons, where this has resulted in a delay in the consideration of an administrative case. A monetary penalty of ten Monthly Calculation Indices (MCI) may be imposed for each such act or omission.

For failure to comply with a court requirement or request, failure of a participant in administrative proceedings to appear before the court, failure to notify the court in a timely manner, late submission of a written response, disobedience of the presiding judge's orders during a court hearing, violation of the rules established in court, as well as other actions (inaction) clearly demonstrating disrespect for the court and/or the judge, the court may impose a monetary penalty of twenty Monthly Calculation Indices (MCI).

For failure to comply with a court decision or a court ruling approving an agreement between the parties on settlement, 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 (MCI) and shall specify in the same judicial act a time limit, not exceeding one month, within which the decision must be complied with.

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

• late submission of a written response;
• late submission of the enforcement proceedings materials;
• submission of incomplete enforcement proceedings materials;
• failure to appear at a court hearing (or failure to connect to the hearing online) without valid reasons.

Abbreviations Used

• APPC – Administrative Procedure and Process 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;
• Regulatory Resolution of the Supreme Court (RRSC) – Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan;
• Rules for the Sale of Seized Property, Including Through Auctions in the Form of an Electronic Auction – Rules;
• AIAS – “Torelik” Automated Information and Analytical System of the Judicial Authorities of the Republic of Kazakhstan;
• Judicial Chamber for Administrative Cases of the Supreme Court – the Judicial Chamber for Administrative Cases of the Supreme Court of the Republic of Kazakhstan;
• Judicial Chamber for Administrative Cases or Chamber – Judicial Chamber for Administrative Cases;
• SIAC – Specialized Interdistrict Administrative Court;
• DoJ – Department(s) of Justice;
• SBE – State Bailiff(s);
• PBE – Private Bailiff(s);
• EP – Enforcement Proceedings.

The Main Regulatory Legal Acts Governing Enforcement Proceedings Include:

• the Constitution of the Republic of Kazakhstan;
• the APPC;
• the CC;
• the CPC;
• the Law on Enforcement Proceedings;
• the Law of the Republic of Kazakhstan “On Valuation Activities in the Republic of Kazakhstan”;
• the Law of the Republic of Kazakhstan “On Mediation”;
• the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
• Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 31 March 2017 “On the Application by Courts of Certain Provisions of Legislation on Enforcement Proceedings”;
• Regulatory Resolution No. 12 of the Supreme Court of the Republic of Kazakhstan dated 19 December 2003 “On Liability for Failure to Comply with Judicial Acts”;
• Regulatory Resolution No. 2 of the Supreme Court of the Republic of Kazakhstan dated 12 January 2009 “On the Adoption of Interim Measures in Civil Cases”;
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 29 November 2024 “On Court Decisions in Administrative Cases”;
• Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 29 November 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 4 May 2014 “On Approval of the Rates of Remuneration for the Activities of Private Bailiffs” (repealed as of 13 July 2023);
• Order No. 372 of the Minister of Justice of the Republic of Kazakhstan dated 24 December 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 No. 416 of the Minister of Justice of the Republic of Kazakhstan dated 27 June 2023 “On Approval of the Rates of Remuneration for the Activities of Private Bailiffs”;
• Order No. 148 of the Minister of Justice of the Republic of Kazakhstan dated 28 March 2019 “On Approval of Standard Forms of Rulings of Private Bailiffs.” 

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