Officials should be held accountable for non-execution of court rulings

Failure to execute a judicial act, to recover the debt from the state in favor of the business entity was discussed at the regular meeting of the Council on protection of the rights of entrepreneurs NCE RK "Atameken".

"Chamber held a public monitoring of enforcement of judicial decisions made in favor of entrepreneurs. There were established facts of prolonged non-execution of judicial acts both with regard to property and non-property disputes. As of November 2015, the total amount of non-enforcement of acts equals almost 1 billion tenge", - said the chairman of the Council Gani Kasymov, speaking at the meeting.

Director of the department of legal protection of entrepreneurs NCE RK Oleg Savelenko cited the example of Pavlodar region. "Chamber of Entrepreneurs of Pavlodar region sent a letter to the regional prosecutor's office to conduct an audit in terms of compliance of the competent authority with the law on enforcement proceedings. The audit established that the regional prosecutor's office lost 22 court orders and 13 in Ekibastuz territorial department. The prosecutor's office found that the work of bailiffs is performed improperly. In this connection, the Department of Justice of Pavlodar region received a petition from prosecutor's office with a request to eliminate violations and to bring officials to disciplinary responsibility", - he said.

It should be noted that the execution of these documents should have ended in no more than two months from the date of commencement. Thus, the bailiffs had violated the statutory deadlines. At the same time only state bailiffs can deal with such enforcement proceedings.

"The regulations, governing the work, provided that state agencies are obliged to make payments upon presentation of court decisions, and in the event of the grounds stipulated by the current legislation of the Republic of Kazakhstan should challenge them in all courts. Thus, we get long-term trials. However, officials often take up these measures too late. For example, in 2014 the Department for the execution of judicial acts of Kyzylorda region appealed the judicial act for the recovery of 4,226,129 tenge for the benefit of LLP "Frac Jet" after a certain period from the date the decision entered into force and only after the appeal of NCE on non-execution of the act in address of the authorized body", - said Savelenko.

So, Bayanaul territorial division of the Department of Justice of Pavlodar region still holds the enforcement proceedings initiated in 2008 for the recovery of 3,249,938 tenge from the tax administration for the benefit of LLP "Maikuben West". The territorial departments of the Department of Justice of North Kazakhstan region has non-executed judicial acts as of 2012. Bailiffs also loose documents, facilities, resulting in tightening of deadlines.

The representative of the Department for the Enforcement of Judicial Acts of the Ministry of Justice Zhanar Galieva was invited to attend the meeting of the Council. "Recovery from state institutions is complicated by the fact that, in accordance with the law on state property, the execution of judicial acts for recovery of assets from the state agencies, we can only recover money, but we don’t work with the property. Accordingly, the bailiff is limited only to certain measures: a seizure of an account, which are on the treasury account. It entails the suspension of the financial activity of a state institution. This is the main problem. State agencies can not pay the money themselves. I understand that no government agency expects the initiation of judicial proceeding against it. Accordingly, they appeal to the Supreme Court. All this slows the process of execution ", - she said, commenting on the situation.

Entrepreneur Gulnar Tulindieva from Almaty told her story during the session of the Council about many years of litigation with the department of architecture. "In 2000 I bought the current shop, which was set on fire after one year and then demolished and after that I received an Architectural and Planning Assignment to build a new store. The project was made for 5 years. But, nevertheless, I have passed all approval procedures, and in 2007 I signed a contract with a construction company, which proved to be unfair, it has built nothing, and disappeared with my money. After some time I applied to the Department of Architecture to issue an Architectural and Planning Assignment, but they refused, I addressed for help to the deputy akim of Almaty. However, I didn’t receive a clear answer. In 2014, I filed a lawsuit, and according to the court ruling the Department of  Architecture is obliged to give me the APA. But they didn’t issue it, saying, "Wait still for an appeal and a cassation". I have undergone through all these stages. Then the Department of Architecture has initiated the protest against the order of the Prosecutor General’s Office in the Supreme Court, but the protest was rejected and the decision of the previous courts remained in force. It was August of 2015. I did not receive a court ruling yet. In December, during a meeting with the Deputy Akim of Almaty, I turned to to him directly with the problem. Then the Department of architecture started to look for replacement of my land plot. They offer me an unequal land plot on the Eastern Bypass. I am being fooled",- said the businesswoman about her problem.

In this regard, the chairman of the Council for the protection of the rights of entrepreneurs Gani Kasymov offered the following resolution: "The Chamber of Entrepreneurs of regions, cities of Almaty and Astana to apply to the prosecutor's office to conduct audits on legitimicy and timeliness of the activities of state bailiffs. The National Chamber must appeal to the National Bureau of Anti-Corruption under the Ministry of Civil Service Affairs of the Republic of Kazakhstan for the prosecution of official of the Department of Architecture and Urban Planning of Almaty city on the fact of non-fulfillment of the court decision".

Gani Kasymov also supported the participants of the discussion about the possibility of consideration of the services of private bailiffs in this case.