Appeal against the court's decision on the recovery of material damage stolen from a construction site
Judicial Board for Civil Cases
Almaty City Court
from the Plaintiff: A.A.E.
IIN …………………
Address: 223 N. ave., Almaty, sq. 30
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 578 57 58; +7 708 578 57 58.
Third parties:
A.E.
IIN .
+7 701 .
State institution "Housing Management
and Housing Inspection of Astana city"
BIN 200340006724
Astana, Baykonyr district, Republic ave., building 32.
+7 (7172) 55-18-01
a.saipov@astana.kz
Government agency "Management
fuel and energy complex and
municipal services of the" city of Astana
BIN 130740015861
Astana, Beibitshilik str., 11.
+7 (7172) 55-72-36.
THE APPEAL
on the decision of the Nauryzbay District Court of Almaty dated July 15, 2024
On July 15, 2024, the Nauryzbay District Court of Almaty, composed of the presiding judge Medetova A.M., having considered civil case No. 7585-24-00-2/639 on A.A.E.'s claim to PMK-7K LLP for recovery of material damage, the court decided to partially satisfy A.A.E.'s claim. To recover from PMK-7K LLP in favor of A.A.E. material damage in the amount of 1,720,051 tenge, the cost of paying for the assistance of representatives in the amount of 172,005 tenge, the cost of paying the state fee in the amount of 17,200 tenge. To dismiss the rest of the claim.
The Court found that according to the original report of NEOC Megapolis Espert LLP N87/06 dated June 18, 2020 "On the assessment of the market value of real estate" submitted by the Plaintiff, the fencing of a private land plot of A.A.E. was estimated at 10,972,153 tenge. It follows from the report that the metal fence was damaged at the time of the appraiser's inspection and, according to the calculation of the missing part of the fence, the repair cost of the damage was estimated by him at 1,720,051 tenge. At the same time, the original photographs attached to the report show that as of June 16, 2020, the main part of the fences is in good condition, there is a construction trailer and some building materials on the territory, while construction work is underway on a private plot of land.
However, we consider the court's decision that only the damaged part of the fence should be restored and returned to the Plaintiff, and not its full value, to be illegal, since we have provided the court with evidence that it was the Defendant, represented by PMK-7K LLP, who destroyed and removed the property belonging to the Plaintiff.
It should be especially noted that during this period, the Plaintiff repeatedly addressed in writing to the Akimat of Astana, the district police (twice) and even to the President of the country with a request to stop construction work, stop destroying and plundering private property. All of these government agencies were aware of what was happening, but they did not provide any assistance to protect the Plaintiff's rights, while referring to the fact that on March 11, 2020, the Mayor of Astana issued a decree on the alienation of a private land plot for public needs and it must be implemented. However, none of them talks about the timing of the alienation of private property, although the resolution clearly defines the timing of the seizure – from June 19, 2020 to June 19, 2021, and this is entrusted to the Management of the Fuel and Energy Complex and Utilities of Astana.
We stated in the lawsuit, as well as in the courtroom, that by order of the Mayor's Office of Astana, the land assessment report No.65/1 ALM-157/4 dated June 25, 2020, was completed, where the photos of the assessment object attached to the report are completely missing the fence, wagon and building materials belonging to the owner, and on paving stones (sidewalks) were laid on the private territory, that is, by June 25, a complete seizure of a private land plot with property located on it took place. It should also be emphasized that the Plaintiff did not give written or oral consent to the demolition and seizure of her property, as she knew that according to the decree of the Akimat dated March 11, 2020, the seizure was officially supposed to begin on June 19, 2020, after assessing the market value of the seized land and end only after paying its cost, that is, after that is, when the private land plot of A. A.E. becomes state property.
Paragraph 3 of Article 65 of the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law) states that the basis for the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is an agreement on the alienation of a land plot for state needs or a court decision, but a court decision or an agreement on alienation, There was no agreement between the akimat and the Plaintiff during the early demolition of the 330-meter-long metal fence and the subsequent theft of building materials and a wagon. Therefore, the court is biased when it claims that the Plaintiff was obliged to protect her property from its self-seizure by the Akimat Administration and subsequent destruction and plunder by PMK-7K LLP.
It is also necessary to indicate that the court has a copy of the letter dated April 21, 2021, where the director of the State Enterprise "Urban Real Estate" Strochkov A. asks the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" to return the construction wagon to the owner A.A.E., since landscaping work was previously carried out on this site. and landscaping by subordinate and contracting organizations. This confirms the fact that the Akimat's Office was carrying out construction work on a private territory. However, at that time, the Plaintiff did not know with whose knowledge and who was destroying and plundering her private property.
The Nauryzbay District Court found that the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" and PMK-7K LLP had concluded an agreement on public procurement of construction works dated May 11, 2020, according to which the work was carried out under the Project "Contract work – construction of boulevards and squares on Mynzhyldyk Alley in Astana (first stage)", where the Plaintiff's land plot was located.
Thus, it became clear that it was the Defendant, represented by PMK-7K LLP, who, since mid-May 2020, according to his work schedule, illegally destroyed the fence of a private territory, took out a construction wagon and building materials, thereby causing significant material damage to the Plaintiff.
At the same time, it should be emphasized that before starting construction work on a private territory, PMK-7K LLP should not have thoughtlessly fulfilled the contract concluded with the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan", but comply with the requirements of the current legislation of the Republic of Kazakhstan. In this case, the specific fault of the managers of PMK-7K LLP is as follows:
1) it was necessary to make sure that there were no buildings and other people's building materials in the territory included in the contract;
2) having seen that a 330-meter metal fence with two gates, locks and a passport of the object is installed on a part of the territory, find out from the Akimat's Office to whom it belongs, request documents proving that the land plot belongs to the akimat and therefore it is possible to demolish the fence and carry out construction work on this territory.;
3) to re-examine the akim's decree of March 11, 2020, which specified the terms of withdrawal of land plots intended for the construction of boulevards and squares around the Kazakh drama theater under construction.;
4) having learned that after the demolition of the fence began, a district policeman came to the land plot, and the owners of the land plot demanded that construction work be stopped, it was necessary to find out from the Akimat Department why some people were demanding to stop further development of this land plot, while taking measures to preserve other people's property, rather than destroying and plundering them.
It must be said that we consider the court's decision that the Plaintiff was obliged to take measures to preserve her property to be illegal, since we believe that the Plaintiff and the third party took full measures to preserve their property (contacting law enforcement and other government agencies), while copies of all evidentiary materials were provided to the court about this.
Moreover, paragraph 1 of Article 188 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) states that the right of ownership is the right of a subject recognized and protected by legislative acts to own, use and dispose of his property at his discretion, i.e. private property is protected by the state and violation of this law provides for criminal liability.
917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
We have repeatedly informed the court and provided evidence that the Plaintiff and a third party, upon seeing that their private property was being illegally destroyed, immediately contacted law enforcement agencies. Police officers arrived and began to identify the individuals who were on private property. But they were told that the builders located on the Plaintiff's territory were employees of the akimat and that the fenced area was being demolished. The Administrative Division of the Almaty district of Astana registered this fact in the ERDR on the grounds of a criminal offense under Article 202 of the Criminal Code of the Republic of Kazakhstan. Subsequently, having found out that the Plaintiff's land plots were subject to compulsory alienation by the decree of the akim dated March 11, 2020, the criminal case was sent to the nomenclature case for lack of evidence of a criminal offense.
However, it is known that according to paragraph 3, Article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of their property, except by a court decision. Compulsory alienation of property for State needs may be carried out in exceptional cases provided for by law, provided that it is compensated in an equivalent manner.
We also stated in the court of first instance that clause 4, clause 2, Article 63 of the Law "On State Property" states that the decision on the commencement of compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs indicates the date of compulsory alienation, but not earlier than three months from the date of the official publication of this resolution. In this regard, the akim's decree dated March 11, 2020 states that the alienation process is possible only after June 19, 2020. However, the defendant, represented by PMK-7K LLP, after concluding an agreement with the Akimat's Office, grossly violated the resolution of the Akimat and the rights of the owner, thereby causing significant material damage to the Plaintiff, but the court did not give this fact a proper legal assessment, that is, self-seizure, destruction and theft of private property.
According to art. 68 of the CPC RK, each evidence is subject to assessment, taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
Paragraph 1 of Article 65 of the Law "On State Property" stipulates that the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is carried out after the expiration of the time limits set in the resolution specified in paragraph 2 of Article 63 of this Law, with the consent of the owner or a non-governmental land user, unless otherwise provided provided for by the Laws of the Republic of Kazakhstan, or by a court decision.
In paragraph 12 of art . 65 of the Law provides that if the owner does not agree with the resolution specified in paragraph 2 of Article 63 of this Law and (or) refuses to conclude an agreement on the alienation of a land plot for state needs after three months from the date of receipt of a written notification of the forced alienation of a land plot for state needs by the owner, but not later (date) of the implementation of the compulsory alienation specified in the resolution specified in paragraph 2 of Article 63 of this Law, The local executive body has the right to apply to the court with a claim for compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs.
Thus, many points of the current legislation were grossly violated both by the Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan and by PMK-7K LLP, which was proved to the court, but the court ignored these facts and eventually made an unbiased decision.
In addition, it was proved to the court that at the end of 2020, PMK-7K LLP was brought to justice on the claim of the Akimat's Office, according to which it was recognized as an unscrupulous contractor and ordered PMK-7K LLP to return significant amounts to the state for non-performance of work. A number of writ of execution have been issued for PMK-7K LLP, its accounts (8) have been blocked, while the heads of PMK-7K LLP are on the run and it is virtually impossible to recover material damage caused to A.A.E. from them.
According to Article 427 of the CPC, the grounds for revoking or changing a court decision on appeal are: incorrect determination and clarification of the range of circumstances relevant to the case; failure to prove the circumstances established by the court of first instance that are relevant to the case; inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case; violation or improper application of the norms of substantive or procedural law, as well as substantive law norms, are considered violated or improperly applied if the court: has not applied the law to be applied; applied a law that cannot be applied; misinterpreted the law.
Based on the above and guided by art. 401 and paragraphs 2, paragraph 1, art. 427 of the CPC RK,
We ask the Court:
· To change the decision of the Nauryzbay District Court of Almaty dated July 15, 2024.
· To satisfy the claims of the Plaintiff A.A.E. in full.
Application:
1. The original of the fence cost assessment report dated June 18, 2020.
2. A copy of the akim's decision dated March 11, 2020 on the seizure of the land plot of A.A.E. for state needs.
3. A copy of the agreement between the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" and PMK-7K LLP dated May 11, 2020.
With respect,
Proxy representatives: G. Sarzhanov
I. Kenesbek
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