Legislation makes it impossible to fairly punish for putting pressure on business
More than six months, AlbaStroyDor LLP, the Temirtau company, has been proving in court the illegality of actions of civil servants.
Thus, in March 2019, the Department of the Committee for Industrial Development and Industrial Safety of Karaganda region provided for inspection of hoisting mechanisms (1989, 1981, 1990) with an expired period of operation in AlbaStroyDor LLP. Thus, in addition to the inspection of hoisting mechanisms, during the inspection in the period from March 11 to March 15, the Department specialists Gulyaev, Absalyamov, Matvienko, and Smailov carried out an inspection of industrial safety in respect of hazardous production facilities illegally, that was not provided for and was not included in the inspection subject.
As a result of the inspection, the officials drew up an inspection report and an instruction to eliminate the violations.
"According to item 1 of the prescription, at the time of the inspection the LLP did not have an agreement with professional emergency rescue services (hereinafter referred to as PERS) or its PERS for servicing hazardous production facilities; - According to item 2 of the prescription, the accident elimination plan was approved by the head of the organization, but was not approved by PASS; - According to item 3 of the prescription, there were no developed technological regulations; - According to item 4 of the prescription, there were no corresponding entries in the passports of hoisting devices on appointment of responsible persons," stated in the prescription.
Disagreed entrepreneurs appealed the results of the inspection to the Specialized Inter-district Economic Court of Karaganda region, which by its decision partially satisfied the claims of AlbastroyDor LLP. The court invalidated the ruling in paragraphs 1 and 2. The remaining part of the prescription and compensation for damages were rejected.
The Regional Court, by its decision of October 22, 2019, confirmed the legality of the findings of the court of the first instance regarding the unlawfulness of the actions of officials to conduct an industrial safety inspection of hazardous production facilities (the decision of the court of first instance remained in force).
However, the officials who violated the rights of the entrepreneur did not bear any responsibility in connection with the expiration of the terms of the imposition of disciplinary penalties and administrative responsibility while the lawsuits were in progress.
The Atameken NCE RK notes that the stated problem testifies to the necessity to improve the legislation in the sphere of protection of the rights of entrepreneurs taking into account theoretical developments, law enforcement practice and foreign experience.
President of the Republic of Kazakhstan Kassym-Jomart Tokayev in his State of the Nation Address dated September 02, 2019 "Constructive public dialogue is the basis of stability and prosperity of Kazakhstan" noted: "... any attempts to hinder the development of business, especially small and medium-sized ones, should be considered crimes against the state. In this regard, additional legislative measures are needed".
It is necessary to comprehensively review the system of responsibility of civil servants for interference in business and adopt effective mechanisms for preventing violations of the rights and legitimate interests of citizens and legal entities, including business entities.
Thus, during the implementation of the Entrepreneurial Code, the number of inspections has been significantly reduced, the number of information tools requested from business entities has been reduced, thanks to the introduction of regulatory impact analysis, business entities are protected from several unjustified requirements.
Moreover, the Entrepreneurship Code specifies the grounds and clear algorithms of inspections for almost all sectors of business. At the same time, officials still allow violations of the Code's provisions regarding the grounds for conducting inspections.
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