Authors: Ravil Kassilgov, Managing Partner at KP Disputes; Lidiya Martynova, Associate; Madina Mazhitova, Junior Associate
On 29 November 2024, the Supreme Court of the Republic of Kazakhstan adopted its first Regulatory Resolution on the application of the Administrative Procedural and Process-Related Code (APPC) concerning the issuance of judicial acts in administrative proceedings (the “Resolution”).
The Resolution addresses a number of legal gaps in the regulation of judicial acts that have emerged in practice since the APPC entered into force. This article examines the most significant clarifications of the Supreme Court, their practical implications, and remaining issues that may require further regulatory guidance.
On 29 November 2024, the Supreme Court of the Republic of Kazakhstan adopted its first Regulatory Resolution on the application of the Administrative Procedural and Process-Related Code (APPC) concerning the issuance of judicial acts in administrative proceedings (the “Resolution”).
The Resolution addresses a number of legal gaps in the regulation of judicial acts that have emerged in practice since the APPC entered into force. This article examines the most significant clarifications of the Supreme Court, their practical implications, and remaining issues that may require further regulatory guidance.
1. Model Judicial Acts in Administrative Proceedings
As of 1 January 2022, the Civil Procedure Code of the Republic of Kazakhstan (CPC) introduced the concept of model decisions (Articles 27-1 and 28-1) to ensure uniformity of judicial practice. However, questions have arisen regarding the applicability of these CPC provisions to administrative proceedings. Paragraph 3 of the Resolution resolves this ambiguity by confirming that in the absence of specific regulation in the APPC, the CPC rules on model decisions apply to administrative cases.
This institution is still rarely used in practice, with only a few known cases involving model decisions in administrative disputes. One such case is Decision No. 5199-22-00-4/172 of the Judicial Panel on Administrative Cases of the Turkestan Regional Court dated 11 March 2022. In that case, a legal entity challenged a notice on the payment of a vehicle transit fee and sought to invalidate a detention act. The court upheld the claim, citing the principle of rights priority (where doubts regarding the weight of the vehicle were interpreted in favor of the claimant) and the principle of limits of administrative discretion (finding that the respondents lacked authority to detain the vehicle).
A model decision enables courts to refer to the legal positions set out therein when considering similar cases.
In our view, the development of this institution would benefit from a more detailed definition of what constitutes “similar cases” in the Resolution or CPC.
2. Timely Assessment of Claim Admissibility
Paragraph 6 of the Resolution emphasizes the need to verify the admissibility of an administrative claim before assessing its merits. In cases where admissibility is in dispute, the court must state in the reasoning part of the judgment whether the claim meets APPC requirements on jurisdiction, venue, form and content, pre-litigation procedures, and other admissibility criteria.
This clarification may help eliminate the practice of late-stage returns of inadmissible claims during the merits phase. We also believe that systematically addressing admissibility in all judgments—not only where contested—would enhance the development of consistent judicial practice regarding jurisdiction and formal requirements.
Examples from case law:
- Challenge of a bailiff’s refusal to terminate enforcement proceedings
“The claim is admissible, having been filed against the proper respondent and within the statutory time limit. The claimant is the recipient of a burdensome administrative act and is entitled to bring the claim under Article 132 of the APPC.”
- Challenge of the inclusion in the unreliable suppliers list
“The claim is admissible (timely filed, against the proper respondents, no pre-litigation procedures required). The claimant, being the recipient of a refusal, is entitled to seek relief under Article 134 of the APPC.”
- Claim against KGD and DGD for annulment of customs duty payment notices
“The KGD's response was of a recommendatory nature and did not contain features of a binding administrative act. As such, the claim for annulment of the response is inadmissible under subparagraph 11), part 2, Article 138 of the APPC.”
These examples demonstrate the importance of courts assessing compliance with APPC admissibility standards. Briefly addressing admissibility (identification of proper parties, venue, etc.) could reduce the number of cases improperly brought under administrative jurisdiction.
3. Judicial Discretion in Identifying the Proper Respondent
Article 29(4) of the APPC authorizes the court, without the claimant’s consent, to join a second respondent if substitution is refused. Paragraph 11 of the Resolution clarifies that such joinder is discretionary, not mandatory.
This raises the unresolved issue of whether failure to exercise this discretion may contradict the principle of judicial activism.
Example:
Decision No. 4799-24-00-4a/109 of the Judicial Panel on Administrative Cases of the Mangystau Regional Court dated 11 July 2024: The claim was filed against the Deputy Akim of Aktau and the Akim’s Office, although the latter cannot act as a respondent. The court of first instance rightly dismissed the claim, and the appellate court upheld this decision based on Article 427(3) CPC, which permits upholding a substantively correct judgment despite procedural deficiencies.
Here, the appellate court prioritized avoiding excessive formalism, leaving unresolved whether the lower court’s failure to join the proper respondent undermined the principle of judicial activism. Unless addressed, this issue may continue to surface in practice, necessitating further clarification in the Resolution.
4. Dispositive Part of Judicial Decisions
4.1. Claims Challenging Administrative Acts
Paragraph 21 of the Resolution sets out the required findings in decisions granting a claim to challenge an administrative act:
- the court must address the legal consequences of declaring the act unlawful;
- the court may compel the respondent to cancel the act and take restorative action;
- all legal consequences of the act are annulled and the prior legal status is restored.
Example:
Challenge of a decision declaring a desk audit notice unfulfilled and the subsequent freezing of accounts and access to the e-invoicing system.
Decision of the Administrative Court of Astana No. 2394-22-00-4/44 dated 24 March 2022:
“The respondent must fully eliminate the violation by restoring the claimant’s rights to the status quo prior to the contested actions. A one-month period for enforcement is set.”
4.2. Claims to Compel Administrative Action
Paragraph 22 outlines requirements for decisions on such claims:
- the court must declare the refusal to issue a favorable act unlawful;
- the court may compel the respondent to issue an act;
- the court may prohibit the issuance of a burdensome act.
Example:
Claim to compel the tax authority to calculate late interest for untimely VAT refunds.
Decision of the Administrative Court of Astana No. 7194-21-00-4/2439 dated 2 March 2022:
“The respondent unlawfully delayed the refund. The court grants the claim and orders the respondent to calculate the interest due to the claimant.”
4.3. Claims for Specific Actions
Paragraph 23 clarifies that courts must:
- require the respondent to perform specific acts not involving issuance of an administrative act, setting deadlines for performance;
- prohibit future actions not involving administrative acts, specifying which actions are banned.
Example:
Decision of the Administrative Court of Karaganda Region No. 3594-24-00-4/1348 dated 3 December 2024:
“The respondent must recalculate the vehicle tax for a DODGE RAM 1500 (2021 model, plate 007 CCC 09) based on applicable rates for cargo vehicles for 2022–2023.”
4.4. Declaratory Claims and Proof of Legal Interest
Declaratory claims are rarely used and are only permissible where no other claim type applies. Their admissibility hinges on demonstrating the claimant’s legal, material, or moral interest. Paragraph 24 offers the following guidance:
- legal interest may concern the need for a license or permit;
- material interest may involve a claim for damages causally linked to the act;
- moral interest may relate to restoration of rights or compensation for non-material harm;
- such judgments do not annul acts but create legal preconditions for further claims.
Example:
Claim against a bailiff to declare the initiation of enforcement proceedings unlawful.
Decision of the Administrative Court of Astana No. 7194-21-00-4/621 dated 17 September 2021:
“The bailiff initiated enforcement based on a reassigned writ without resolving issues of succession. The bailiff later agreed the initiation was unlawful and cancelled the relevant measures. However, the claimant sought a declaration of illegality. The court found the claim to be well-founded, as the claimant had a legal interest in the declaration to affect future limitation periods.”
5. Authorisation Requirement for Appeals by Administrative Authorities
Paragraph 32 of the Resolution interprets Articles 429, 401, and 435 of the CPC to require that administrative authorities obtain prior authorization from a higher-level state body when filing private, appellate, or cassation appeals in administrative cases.
The Supreme Court emphasizes that appeals filed without such authorization are inadmissible. This requirement stems from the principle of proportionality and the need to prevent the arbitrary prolongation of proceedings at the initiative of the state. It also supports the principle of equal access to justice by discouraging unnecessary and formalistic challenges by public authorities.
This clarification responds to existing case law discrepancies regarding the procedural rights of administrative bodies, particularly in situations where multiple authorities within a single hierarchy act as parties to a case.
Conclusion
The adoption of this Regulatory Resolution is a significant step toward ensuring the consistent and proper application of the APPC. The Supreme Court’s clarifications are of great practical value and, in many respects, fill the legal gaps that have emerged in the relatively new field of administrative justice.
We believe that, over time, this Resolution will help build a more coherent and predictable administrative case law system. However, certain issues—such as the criteria for identifying similar cases when applying model decisions, or the proper balance between judicial discretion and judicial activism in correcting procedural defects—may warrant further guidance either through additional regulatory resolutions or amendments to the APPC.
As administrative justice in Kazakhstan continues to evolve, practical application of the Resolution by judges and legal practitioners will be critical in shaping a fair and effective legal framework for resolving public law disputes.