In 2021, Kazakhstan took one of the most significant steps in reforming its judicial system since independence. The Administrative Procedural and Procedural Code of the Republic of Kazakhstan (hereinafter – the APPC) came into force, fundamentally transforming the philosophy of judicial protection for citizens and legal entities in their relations with the state.

The idea behind the reform was both simple and revolutionary: a dispute between the state and a private party should no longer be adjudicated under the same rules as a dispute between two private entities.

The state exercises sovereign powers. It issues administrative acts, conducts inspections, issues directives, and makes decisions to refuse or grant rights. It was precisely for this reason that the legislature created a separate branch of administrative justice, with a fundamentally different procedural model.

However, practice shows that even several years after the introduction of the APPC, certain state bodies continue to file claims in court as though administrative justice did not exist at all.

Such a dispute arose from a claim brought by the Republican State Institution "Department for Land Resources Management of the Zhetysu Region" against the Non-Profit Joint-Stock Company "I. Zhansugurov University" and other parties to the proceedings. At first glance, the case concerned nothing more than the annulment of a local executive authority's resolution and the invalidation of a land lease agreement. In reality, however, the judicial system was confronted with a question of fundamental importance: does an economic court have jurisdiction to hear a dispute whose central subject is the legality of an administrative act? The answer to this question has the potential to affect not only the outcome of the specific case but also the future development of administrative justice in Kazakhstan.

 

WHAT EXACTLY IS THE PROBLEM?

 

The subject of the judicial proceedings consisted of claims by the Republican State Institution "Department for Land Resources Management of the Zhetysu Region" to declare unlawful and annul the local executive authority's resolution on the allocation of a land plot, as well as to invalidate the land-use agreement concluded on its basis.

At first glance, such claims might appear to be an ordinary property or land dispute.

But only at first glance.

The primary and principal object of the challenge was precisely the local executive authority's resolution. The land lease agreement was of a derivative nature, as its existence was directly contingent upon the adoption of the corresponding resolution by the local executive body.

It is precisely here that the key legal question arises – one of fundamental significance for the entire judicial system of the Republic of Kazakhstan.

What constitutes a resolution of a local executive authority adopted in the exercise of the state's public powers?

Following the entry into force of the Administrative Procedural and Procedural Code of the Republic of Kazakhstan, the answer appears self-evident.

Such a resolution is an administrative act.

Consequently, a dispute concerning its legality is a public-law dispute that must be adjudicated under the rules of administrative proceedings, not civil procedure.

Yet in this very case, the state body – notwithstanding the fact that the subject of its claims was the annulment of an administrative act – filed a claim with the Specialized Interdistrict Economic Court, and the dispute was heard under the rules of the Civil Procedural Code of the Republic of Kazakhstan.

This raises a legitimate question: can an administrative act, which is the product of the exercise of public authority, be reviewed by an economic court under civil procedure, when the legislature specifically created a separate system of administrative justice precisely for the resolution of such disputes?

The answer to this question extends far beyond the confines of a specific land dispute. It touches upon the fundamental foundations of judicial jurisdiction, the principle of the lawful court, legal certainty, and the effectiveness of the administrative reform carried out in Kazakhstan following the adoption of the APPC.

 

WHAT CONSTITUTES A RESOLUTION OF A LOCAL EXECUTIVE AUTHORITY AFTER THE APPC CAME INTO FORCE?

 

The legislature provided the answer to this question directly in paragraph 4 of Article 4 of the Administrative Procedural and Procedural Code of the Republic of Kazakhstan.

A resolution of a local executive authority adopted in the exercise of the state's public powers is an administrative act.

It would seem that after this, no doubt as to the proper judicial jurisdiction should arise.

If the object of judicial challenge is an administrative act, then the dispute is by its legal nature a public-law dispute, not a civil-law one.

It is precisely for the resolution of such disputes that the legislature created the system of administrative justice.

It is precisely administrative courts that are vested with the authority to review the legality of administrative acts and actions of state bodies.

It is precisely administrative proceedings that are built on principles fundamentally distinct from civil procedure: the active role of the court, the reversal of the burden of proof, the obligation of the administrative body to justify the legality of its decision, as well as other special safeguards for parties to public-law relations.

This, indeed, is the very philosophy of the APPC. Its adoption was not merely another procedural innovation; it was a reform that transformed the state's approach to resolving public-law disputes.

All the more surprising, therefore, is the situation where, despite the fact that the subject of the challenge was precisely an administrative act – a resolution of the local executive authority – the claim was filed with the Specialized Interdistrict Economic Court, and the case was heard under the rules of civil procedural law.

And this raises a question that extends far beyond a single land dispute: if an administrative act comes to be assessed by a court of general civil jurisdiction, does this not effectively negate the very idea behind the establishment of administrative justice in the Republic of Kazakhstan?

 

WHY CAN THIS NOT BE DISMISSED AS A MERE PROCEDURAL ERROR?

 

At first glance, one might think this is merely a formal violation of jurisdictional rules – the state body simply filed its claim "in the wrong court." However, such a perception oversimplifies the problem.

In reality, the consequences of such a procedural error are far more profound.

When a public-law dispute is adjudicated under the rules of the CPC rather than the APPC, it is not merely a substitution of one procedural form for another. The entire model of judicial protection established by the legislature in creating administrative justice is effectively replaced.

Along with this, the procedural safeguards for which the APPC was adopted also vanish.

The principle of the active role of the court – which obliges the court independently to facilitate a comprehensive examination of the circumstances of the case – does not apply.

The burden of proof is allocated differently: instead of placing on the administrative body the obligation to justify the legality of its decision, the parties find themselves within the classical adversarial model of civil proceedings.

The special standards of judicial review of administrative acts – which are a key feature of administrative justice – are not applied.

In other words, it is not only the procedural form of the case that changes; the very philosophy of judicial protection is altered.

This is precisely why the issue extends far beyond procedural technicalities. It is no longer merely about a violation of jurisdiction rules, but about compliance with one of the fundamental constitutional principles – the principle of the lawful court.

Each category of dispute must be heard by the court and under the procedural rules expressly prescribed by law. This is not a formality or a technical requirement. It is one of the most important guarantees of a fair trial, legal certainty, and public trust in the judiciary.

If an administrative dispute is adjudicated under civil procedure rules, the legitimate question arises: does this not effectively amount to a renunciation of the very principles of administrative justice for the sake of which one of the most significant judicial and legal reforms of recent decades was carried out in Kazakhstan?

 

THE CONSTITUTIONAL COURT HAS ALREADY PROVIDED THE ANSWER

 

The question of distinguishing between civil and administrative jurisdiction has long ceased to be a matter of purely academic debate. The legal position on this issue has already been articulated by the Constitutional Court of the Republic of Kazakhstan.

In examining the constitutionality of Part 2 of Article 102 of the APPC, the Constitutional Court effectively set the benchmarks for all judicial practice. The Court held that disputes arising from the exercise by state bodies of public powers, including those related to the granting of rights to land plots, fall within the sphere of administrative proceedings.

It is precisely for this reason that the legislature enshrined in Part 2 of Article 102 of the APPC one of the key rules for delineating judicial jurisdiction. If a single claim combines interrelated demands, some of which fall within administrative jurisdiction and others within civil jurisdiction, such claims are subject to adjudication by an administrative court.

This rule cannot be viewed as an ordinary procedural provision.

Its introduction was a logical consequence of the administrative reform and is aimed at achieving one fundamental objective – to preclude a situation in which the legality of one and the same administrative act is assessed by different courts under different procedural rules.

It is precisely a unified procedural framework that ensures consistency in judicial practice, legal certainty, and adherence to the principle of the lawful court.

 

AN ADMINISTRATIVE ACT IS NOT A CIVIL TRANSACTION

 

Following the entry into force of the APPC, it was not only the court system that changed. The very understanding of the nature of disputes between the state and a private party was transformed.

Prior to the advent of administrative justice, many such categories of cases were indeed heard by economic courts under civil procedure. However, the administrative reform altered the very approach to assessing public-law relations.

An administrative act cannot be viewed as an ordinary legal fact of civil law or assessed solely through the prism of its civil-law consequences.

It represents a sovereign decision of the state, adopted by an authorized body within the scope of its public competence, and giving rise to public-law consequences.

Thus, the subject of judicial review becomes not so much the proprietary outcome of such a decision, but rather the lawfulness of the exercise by the state body of its sovereign powers.

And this is the exclusive domain of administrative proceedings.

This is precisely one of the key ideas underlying the administrative reform: an administrative act must be reviewed by the court and under the procedural rules specifically designed for the oversight of public authority.

 

WHAT HAPPENS IF THE APPC IS IGNORED?

 

At first glance, an erroneous determination of judicial jurisdiction may appear to be an isolated procedural violation. However, judicial practice is shaped precisely by such cases.

If state bodies continue to file claims with economic courts seeking the annulment of administrative acts, a practice may gradually develop that effectively undermines the significance of administrative justice.

And then a number of fundamental questions will inevitably arise.

For what purpose were specialized administrative courts created?

For what purpose was the Administrative Procedural and Procedural Code adopted?

For what purpose did the Constitutional Court formulate modern approaches to the delineation of judicial competence?

If administrative disputes continue to be resolved under the rules of civil procedure, then the very idea of the administrative reform inevitably loses its practical content.

The APPC was not created to exist in parallel with civil procedure. It was created so that public-law disputes would be resolved under separate rules, commensurate with the nature of relations between the state and the individual.

The history of Kazakhstani law has repeatedly shown that it is individual judicial cases that have become the starting point for the formation of new legal approaches and the evolution of judicial practice. The dispute under consideration is likely one such case.

Today, the issue is no longer merely about a land plot or the legality of a specific local executive authority's resolution.

It is about far more important matters. About the genuine delineation of administrative and civil jurisdiction. About the place of the administrative act in the modern legal system. About adherence to the principle of the lawful court. About the consistent implementation of administrative reform. And, finally, about the practical realization of the constitutional principles enshrined at the foundation of the modern judicial system of the Republic of Kazakhstan.

Since the adoption of the 1995 Constitution of the Republic of Kazakhstan, the state has consistently worked to establish an independent judiciary, develop the principles of the rule of law, and improve the mechanisms of judicial protection. The adoption of the APPC was a logical continuation of this constitutional evolution and one of the most significant milestones in the judicial and legal reform of recent decades.

That is why it is especially important today that the provisions of the APPC be applied not formally, but in full accordance with their purpose and constitutional meaning.

The correct determination of the nature of the legal relationship in dispute affects not only the fate of a particular judicial case. It affects the uniformity of judicial practice, public trust in the judicial system, and the overall success of the entire model of administrative justice.

One would hope that such cases will become not merely the subject of judicial proceedings but also an occasion for serious professional debate.

After all, the central question that this case poses to the legal community is at once remarkably simple and fundamentally significant: "If an administrative act – which, under paragraph 4 of Article 4 of the APPC, is the result of the exercise of the state's public powers – comes to be assessed by a court of civil jurisdiction, does this not effectively constitute a departure from the very legal principles for which the administrative justice system of the Republic of Kazakhstan was created?"

The answer to this question remains to be given not only by the appellate and cassation instances in the specific case, but by the entirety of Kazakhstani judicial practice. It is upon this answer that much will depend – whether administrative justice will remain an independent and effective institution of judicial protection, or whether its significance will gradually be eroded by law enforcement practice.

 

Nurzhan MAKSATOV,
Public Figure, PhD, Associate Professor
at the "Adilet" Higher School of Law