Yerlan Galiyev, Independent Partner of MinTax Group, LLM, gives comments on material changes in the civil procedural law of Kazakhstan effective from 1 January 2016 in respect of the ‘guilt’ principle in cases of appealing against actions (inaction) of government authorities and officials.
One of the fundamental concepts of the law is the "guilt". In the meantime, the principle of guilt varies between different law branches.
Unlike in criminal law, the guilt does not play a big role in civil legal liability. The presumption of innocence, expansion of liability without guilt (the source of increased danger, responsibility for the actions of third parties, business risk), absence of guilt forms specific to the criminal law, etc….
… in the civil law, the sphere of application of the guilt principle is quite naturally cut down while the scope of the infliction principle is expanded” (Liability in civil law (M. Suleimenov, Director of Private Law Scientific Research Institute of Kazakhstan State Law University, Member of the National Academy of Sciences of the RoK, Doctor of Laws, Professor) // “The Lawyer” Magazine, - June 2006, - issue No 6).
According to paragraph 6 of Article 9 of the Civil Code of the RoK (General Part) adopted by the Supreme Soviet of the RoK on 27 December 1994 (hereinafter the Civil Code), if the occurrence of legal consequences of an offence depends on the culpability of the offender, his guilt shall be presumed, unless otherwise stipulated by legislative acts.
In respect of legal disputes within the framework of civil procedures, part 1 of Article 72 of the RoK Code No 377-V dated 31 October 2015 ‘Civil Procedure Code of the RoK’ (hereinafter – the CPC) states that each party must prove the circumstances to which it refers as grounds for their claims and objections, to use remedies, claim, dispute the facts, give evidence and objections against evidence within deadlines established by the judge which are consistent with proper performance of the trial and help facilitate the proceedings.
In the meantime, pursuant to paragraph 6 of Article 9 of the foregoing clause of the Civil Code, in the civil proceedings it would be enough to state the fact of offence and present evidence of the offence committed for bringing the offender to civil legal liability.
However, the new CPC which is effective from 1 January 2016, contains a clause that makes a significant difference in the procedure for appealing of actions (inaction) of state bodies and civil servants as compared with other disputes in civil proceedings. In particular, according to Part 2 of Article 72 of the CPC, "The burden of proof on cases specified in Chapter 29 of this Code shall be laid on the government authorities, local self-government, public associations, organizations, officials and civil servants, whose acts, actions (inaction) are being appealed. "
In turn, Chapter 29 of the CPC (Articles 292 – 297) is dedicated to issues related to legal proceedings on challenging decisions and actions (inaction) of government authorities, local governments, public associations, organizations, officials and civil servants.
The norm stated above results from implementing legal provisions of foreign countries and international practices to the Kazakhstan’s law.
For instance, in France “Tax administration authorities bear the burden of proof in respect of elements which are necessary to confirm the existence of abusdedroit (French ‘abuse of right’), except where the tax administration presents the case for the review of the Advisory Committee, the special administrative body which reviews cases related to abusdedroit” (The foreign judicial practice and law institutions in the tax sphere: judgements followed by the judicial bodies of Japan, Sweden, France and Germany (based on trials held in the recent years) // Paragraph).
After the requirement to lay the burden of proof on the authorities has been introduced to the CPC, actually it means that the civil procedure law now contains a requirement concerning the presumption of unlawfulness of decisions and actions (inaction) of government authorities, local self-government, public associations, organizations, officials and civil servants.
According to part 1 of Article 292 of the CPC, “A citizen or legal person is entitled to challenge the decision, actions (inaction) of the government authority, local governments, public association, organization, official, civil servant in the court. In cases where the law provides for reviewing the petition by a higher authority, organization, official, commissions or ombudsman, the application of the citizen and legal entity should be submitted to the court after following that procedure.
If the protest on the individually applied unlawful act or actions of the government authority or official is rejected by the authority or official who issued the unlawful act or committed the offence or by the superior body or official, the prosecutor shall appeal to the court to recognize the act or actions as illegal.”
Following the logic of part 2 of Article 72 of the CPC, as distinct from all other cases of appealing to the court in civil proceedings, in appealing the actions (inaction) of government authorities and civil servants, the burden of proof (collection and presentation of evidence) shall be laid on the authority whose act is being appealed, rather than on the applicant.
The applicant is only required to present the court with a statement of offence of his rights and legal interests, enclosing the act being appealed. In turn, the collection and presentation of proof regarding the lawfulness of the act being appealed shall be laid on the authorities and civil servants whose actions (inaction) are being appealed.
At that, pursuant to part 1 of Article 272 of the CPC, we believe that the burden of proof of the government authority cannot be limited only by the fact of issuing the act being appealed as it was often practiced before the adoption of the new CPC, but the authority must present actual proof of lawfulness of the act issued.
According to part 1 of Article 63 of the CPC, evidences in the case are actual data received on a legal basis, on the basis of which the court determines presence or absence of circumstances justifying requirements and objections of the parties and other circumstances important for proper resolution of the case.
Unlike other disputes to be considered within the framework of civil procedure in cases on challenging the decisions and actions (inaction) of state authorities, local government, public associations, organizations, officials and civil servants, in order for the court to cancel the act of the state authority the following legal facts must take place:
It should be noted that, on the basis of provisions of Chapter 29 of the CPC, the notices of the results of tax audits are appealed in Kazakhstan. It was noted many times both by taxpayers in the judicial literature and by the state authorities themselves that, due to the complexity and inconsistency of tax legislation, the burden of proof must be laid on the tax authorities. In most cases, when making appeals, taxpayers point to violations and omissions of state revenue authorities committed when issuing notices on the results of tax audits. We believe that, if part 2 of Article 72 of the CPC is properly applied in the judicial practice, this would serve as a strong impetus for protecting rights and legal interests of taxpayers.
MinTax Group has significant experience in appealing the results of tax audits both in higher level tax authorities and in courts.
Name of “MinTax” used in this proposal, depending on the context, can refer to MinTax LLP or MinTax Audit LLP and to its structural subdivisions as well. MinTax LLP and MinTax Audit LLP are included into MinTax Group acting on the basis of the Partnership Agreement, and are considered to be separate and independent legal entities founded under the Republic of Kazakhstan legislation, and they are responsible for all rights and obligations only on their behalf. The Companies which are included in MinTax Group are not responsible for any actions or omissions of each other
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