Introduction of The Administrative Procedural Code in The Republic of Kazakhstan Prospects for Appealing Against Decisions/Actions of State Bodies in Kazakhstan

18.12.2024

On July 1, 2021, the Administrative Procedural Code (APPC) entered into force in the Republic of Kazakhstan. This Code is designed to regulate the relations arising between state bodies and citizens/legal entities in the consideration of administrative cases.

The introduction of the APPC has led to positive changes for businesses in terms of the prospect of appealing against decisions/actions of state bodies, thereby creating favorable conditions for the protection of the interests of citizens and businesses.

Below are the statistics for 2023:

In the 1st quarter of 2023, 7,685 administrative claims were received.
7,053 cases (92%) were completed.
With the issuance of a decision, 2,333 (35%).
1,087 decisions (65%) were made in favor of the plaintiff (excluding disputes with bailiffs).
In 763 cases (11%), the parties reconciled.

Based on this, we can conclude that the scales of justice have tipped in favor of citizens and businesses. The fact that 763 cases (11%) ended in reconciliation indicates a desire for constructive dialogue and cooperation.

What Disputes are Considered Within The Framework of The Appc?

Disputes under the jurisdiction of specialized inter-district administrative courts are divided into four types, which, depending on the circumstances, are further divided into claims:

to challenge an administrative act;
on coercion;
a claim for the performance of an action;
on recognition.

A claim to challenge is aimed at the judicial cancellation of an administrative act.
When filing this claim, the plaintiff must declare a violation of their rights and legitimate interests. If the claim is satisfied, the court cancels the administrative act in whole or in part. For example, Citizen A. filed a lawsuit to challenge the decision of the Department of Land Resources in the city of Astana, which refused to provide him with a land plot. The Authority cited a lack of necessary documents, but the plaintiff argued that all required documents had been submitted. The plaintiff also claimed that the procedure for considering his application was violated since he was not given the opportunity to address the deficiencies. As a result of the trial, the Court found that the Land Administration had failed to inform the plaintiff about the deficiencies and, as a result, declared the decision of the Department illegal.
Under a coercive claim, the plaintiff seeks to compel an administrative body to issue a favorable act, which was previously refused or not adopted due to the inaction of the administrative body. In such cases, a separate requirement to challenge the refusal is not necessary. However, a coercive claim may also include a demand not to adopt a burdensome administrative act against the plaintiff, as the court does not issue the administrative act but obliges the administrative body to do so. For example, if a citizen requests permission to build a store but the administrative body refuses. In this case, the citizen can file a lawsuit for coercion. If the claim is successful, the court will oblige the authority to issue the permit. The court may also determine the content and timing of adoption of the administrative act, as well as other relevant circumstances, excluding issues of expediency.
In a claim for action, the plaintiff may require the defendant to perform specific factual actions or refrain from certain actions. This action is not related to the adoption of an administrative act. For example, a claim may demand the removal of a prohibitory road sign, the installation of lighting, or the dismantling of a barrier, or in cases where the request is ignored by a state body, the body may be obliged to respond or perform any required registration action. If the court finds the claim to be lawful and reasonable, it will oblige the defendant to perform specific actions within the established period.
Under a claim for recognition, the plaintiff may demand that the existence or absence of a particular legal relationship be recognized. A claim for recognition is admissible if the plaintiff has a sufficient interest in establishing such a relationship as soon as possible. The court also has the right to recognize an encumbering administrative act that no longer has legal force as illegal if the claim for recognition is justified and lawful, and the recognition of this fact is necessary for restoring the plaintiff's violated rights. This applies even if the encumbering administrative act has already been repealed or its effect has otherwise become invalid. For example, a claim to invalidate an order appointing a tax audit.

Since the APPC was enacted to ensure the protection of the rights, freedoms, and legitimate interests of individuals and legal entities when interacting with state bodies, the main subject of proceedings is the appeal of actions or inactions of state bodies.

Accordingly, all tax, customs, antimonopoly, environmental, investment disputes, as well as other disputes with state bodies, which were previously considered in the Specialized Inter-District Economic Courts and District Courts, are now, under the APPC, considered in the Specialized Inter-District Administrative Courts.

Claims to appeal against the actions (inaction) of bailiffs are one of the most relevant in Kazakhstan.

Principles of The Appc

The main principles of the APPC, which deserve attention and are important when working with state bodies, are:

Proportionality

This principle means that in exercising administrative discretion, the administrative body or official must ensure a fair balance between the interests of the participant in the administrative procedure and those of society. Administrative acts or actions (inactions) must be proportionate, meaning they must be suitable, necessary, and balanced.

An administrative act or action (inaction) is considered suitable if it is acceptable for achieving the goal set by the laws of the Republic of Kazakhstan.

They are also considered necessary if they least restrict the rights, freedoms, and legitimate interests of the participant in the administrative procedure to the least extent possible. And it is considered proportional if the public benefit derived from these restrictions is greater than the harm caused to the participant’s rights.

Principle of Priority of Rights

According to this principle, all doubts, contradictions, and ambiguities in the legislation of the Republic of Kazakhstan concerning administrative procedures must be interpreted in favor of the participant in the administrative procedure, i.e., individuals and business representatives.

Prohibition of Abuse of Formal Requirements

An administrative body or official is prohibited from refusing to implement, restricting, or terminating a participant's rights in an administrative procedure, or imposing obligations on the participant based on requirements not established by the legislation of the Republic of Kazakhstan.

Presumption of Reliability

Materials, objects, documents, and information submitted by the participant in the administrative procedure shall be considered reliable unless the administrative body or official proves otherwise. In other words, the Code assumes the good faith of the participant in the administrative procedure.

The Active Role of the Court

In line with this principle, the court does not limit itself to the explanations, statements, and petitions of the participants, as well as the arguments, evidence, and other materials of the administrative case submitted by them,. It comprehensively, fully, and objectively examines all relevant factual circumstances important for resolving the case.

Moreover, the judge has the right to express a preliminary legal opinion on the legal grounds relating to the factual and/or legal aspects of the administrative case (pre-decision). In practice, judges often assist plaintiffs in expressing their claims and adjust their legal positions.

Innovations and Features of Administrative Procedures

Administrative procedure refers to the work of state bodies and officials to consider cases, make decisions, and execute them. This process may be initiated either by citizens’ requests or by the administrative body itself. There are also simplified procedures that are faster.

To initiate an administrative procedure, one must either submit an appeal or have the process initiated by an administrative body or official.

The administrative procedure consists of the following stages:

initiation of administrative proceedings;
consideration of an administrative case;
adoption of an administrative act;
execution of an administrative act.

The following main innovations and features of the APPC, particularly regarding the appeal of actions/inactions of state authorities, should be highlighted:

Absence of the Stage of Accepting the Case for Proceedings
Article 137 of the APPC provides that a case is accepted for proceedings upon the filing of a claim. Unlike the Civil Procedure Code of Kazakhstan, the APPC does not include a separate stage for accepting a case for proceedings, which eliminates the formal "filter" that plaintiffs could encounter immediately after filing an administrative claim.
Inability of the Administrative Authority to Provide Additional Arguments
Part 3 of Article 129 of the APPC states that the defendant can only refer to justifications that are reflected in the administrative act. This is beneficial because if an administrative body issues a restrictive act without specifying justifications, it can be easily challenged, as the body will not be allowed to supplement its act with explanations not included in the original document.
Possibility of Reconciliation
In administrative proceedings, the parties have the option to settle the case by entering into a mediation agreement or a settlement of the dispute through a participatory procedure. For the first time, citizens and legal entities can legally "negotiate" with a state body.
Fines
The court has the authority to impose a pecuniary penalty on a party or its representative ranging from 10 to 20 MCI (monthly calculation index) for abusing procedural rights or failing to perform procedural duties, especially when such actions.

Author: Slan Alibek

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