Supreme Court judges explained to representatives of foreign companies the principles of administrative justice

Kanat Musin, Chairman of the Collegium for administrative cases of the Supreme Court, held a round table on the topic “Administrative justice: a roadmap for foreign investors”.

It was attended by about 120 representatives of foreign companies in the corporate sector, including the World Bank in Kazakhstan, the Chamber of Commerce and Industry of China, oil and mining companies, and international law firms.

In an online meeting, judges Aslan Tukiev and Dana Tokmurzina explained the aspects of the roadmap for the business. They talked about the principles, jurisdiction, competence, appeal deadlines, investment disputes, and court fees following the new Administrative Procedural and Process-related Code (APPC) provisions.

Thus, A. Tukiev named the principle of the active court’s role, which includes at least 7 aspects, as the forte of the Code.

So, they include the court’s right to independently study the case circumstances, fundamental for making a decision, without being bound by the participants’ arguments, using all the possibilities at its disposal to clarify them.

If the evidence presented is insufficient, the court collects them on its initiative.

APPC secured the duty of the administrative body to conduct administrative cases. In practice, the defendant must prove to the court the legality of own decisions. Failure to comply with this principle means the abolition of the act.

APPC obliged the parties to assist justice when establishing the case facts. The court can demand these documents by a specific date.

The APPC provisions, according to which the administrative body can refer only to the justifications mentioned in the administrative act, and the plaintiff participates in collecting evidence depending on own capabilities, are called revolutionary.

The new mechanism that would allow an efficient and quick dispute resolution without generating new claims against other defendants in the same conducted case had also been mentioned.

According to A. Tukiev, the principle of the active court’s role shows that the new type of proceedings focuses on the individual legal protection of the plaintiff and objective control of the legality of the actions of the “audited” administrative body and its act.

It is the judge’s right to express his or her preliminary legal opinion; it is connected with the factual, legal aspects of the case under consideration. It allows the parties to prepare better, provide additional information, and improve the court discussion quality and the final decision on the case.

In conclusion, A. Tukiev noted that “In other words, the court must conduct an honest and open legal conversation. The court’s credibility and the decision will depend on how the judge will explain other aspects of the case, particularly to the plaintiff, using understandable language and terms. Because they only trust if they understand and accept”.

D. Tokmurzina specifies that APPC will significantly impact conducting inspections by state bodies and licensing procedures, i.e. obtaining licenses, rights to land plots, participation in public procurement, and others. It will affect the rights, including local and foreign investors, and positively impact the investment climate.

In conclusion, K. Musin emphasized: “Since we are on the verge of such big changes, we decided to hold a separate round table in the Russian, English, and Chinese languages for investors, so that they can exercise their rights through judicial protection”. At the same time, Chairman of the Collegium of the Supreme Court recalled the administrative justice tasks to protect the business’s rights and freedoms from illegal actions and decisions of the administrative bodies, ensuring transparent state administration.

Previously, only 15% of disputes against administrative bodies were resolved in favor of the population and business. It shows that a priori, the path to justice was difficult. Therefore, the specific task is to strengthen the plaintiffs’ position in disputes against the administrative bodies and ensure the transparency and legality of state bodies’ decisions through judicial control.

The approaches have been radically changed to achieve the set tasks. Pre-trial appeal plays an essential role in the administration of justice since the task is to entirely transform the state bodies’ approaches to providing state services and state control. The court’s task is to make the administrative bodies work as they should.

“Why do we want to have a pre-trial appeal in as many situations as possible? Since we will solve certain situations and systematically involve state bodies’ management to correct the problems. Returning claims for pre-trial consideration should not be considered a “claim footballing”. It is a measure for developing a systematic approach and should make the administrative bodies think again before taking action or act”, - said the speaker.

K. Musin talked about the types of disputes, including investment and their competence, having examined several situations in this part, the amount of state duty, and the time frame for filing a claim and enforcement proceedings.