APPEAL against the decision of the Saryarkinsky District Court of Astana
To the Judicial Board for Civil Cases of the Astana City Court
from the Plaintiff: A.A.E.
IIN .
Representative by proxy:
Law and Law Law Firm
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79 Abylai Khan Ave., office 304, Almaty.
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THE APPEAL
on the decision of the Saryarkinsky District Court of Astana dated February 22, 2023
On February 22, 2023, the Saryarkinsky District Court of Astana, composed of the presiding Judge Rashkalieva G.E., having considered the civil case No. 7113-22-00-2/5484 on the claim of A.A.E. to the Akimat of Astana for compensation of material damage and expenses in connection with the seizure of the land plot, the Court decided - in the claim of A.A.E. to the Akimat of Astana for compensation of material damage damage and expenses in connection with the withdrawal of the land plot - to refuse.
The court found that from the explanations of the plaintiff, in May 2020, the staff of the akimat began to destroy the fence enclosing the territory of a private land plot, and began to export construction materials. At the same time, the plaintiff, filing this lawsuit against the akimat, which is not a construction organization, did not provide the court with evidence that it was the defendant who demolished (destroyed, destroyed) the property located on the land plot, which is not responsible for this type of work. The photographs of the land area provided by the plaintiff do not establish the fact that the fence was demolished and the construction materials were removed by the defendant, since these photographs are not dated, which excludes the possibility of establishing the time period when the moment of construction work was filmed. It is also not possible to determine the exact location of the plaintiff's land plots in the photographs provided.
We consider the decision of the court of first instance to be unlawful and unjustified due to the following circumstances:
The court does not base its decision on the evidence presented by the plaintiff, since the plaintiff provided explanations not only about the destroyed fence, but also other expenses that the plaintiff had spent. The court did not resolve the case within the limits of the plaintiff's claims for reimbursement of costs incurred by the plaintiff prior to the release of Resolution No. 510-547 of March 11, 2020 on the alienation of the land plot, i.e. During the trial, the court was repeatedly told that the plaintiff intended to build a restaurant and wellness complex on the territory of the land plot and all preparatory work for the construction of the complex was provided. The court's decision stated in the descriptive part that the plaintiff requested to recover from the defendant material damage in the amount of 64,212,482 tenge, namely; the cost of the fence - 10,997,153 tenge; the cost of the construction wagon - 3,000,000 tenge; the cost of construction materials is 500,000 tenge, expenses spent on preliminary work on land plots (topography, boundary determination, land management and other services of Geoter LLP, survey work) - 1,722,037 tenge; preparation of a preliminary design - 2,300,000 tenge; preparation of a working draft - 40,800,000 tenge; expertise The cost of the working draft is 2,300,000 tenge; the cost of conducting three independent assessments and two independent forensic examinations is 987,500 tenge; lawyer's services are 1,200,000 tenge; the cost of air tickets is 405,792 tenge. However, the Court did not specify in the reasoning part of the decision, in connection with which the stated claims for recovery of the remaining costs, except for the destroyed fence, were denied. The main requirements of A.A.E. are that almost the entire amount of the claim for compensation for material damage and expenses incurred was formed before the release of the Akimat's resolution dated March 11, 2020, therefore, the reimbursement of the plaintiff's costs should not be questioned by the court.
The defendant and the court of first instance refer to the fact that by the decision of the Almaty District Court of Astana dated April 27, 2022, which entered into force, the plaintiff received payment of monetary compensation. However, it should be noted that the plaintiff in this decision received monetary compensation only for the market value of the land plot. According to P. 11 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision in civil cases", which stipulates that unilateral presentation of arguments and evidence of the party in favor of which the court made the decision is not allowed. The court is obliged to indicate on what grounds it did not accept the arguments of the other party and did not apply those rules of substantive law to which this party referred.
In its decision, the Court of first instance unreasonably argues that the parties do not dispute that, when determining the amount of compensation at the time of the inspection of the land plot, no buildings in the form of a fence, a wagon, or building materials have been established. Whereas we have repeatedly stated during the trial that the plaintiff and a third party, having discovered illegal actions on the part of employees of the Akimat of Astana, repeatedly contacted the police and the Akimat of Astana.
Regarding the destroyed fence, we inform you that according to the decree of the Akimat of the city of Nur-Sultan No. 510-2502 dated July 22, 2021, the alienation period was set from June 19, 2020 to June 19, 2021. However, due to the fact that on May 11, 2020, Akimat employees began to destroy the fence and other works on the alienation of the owner's property. The third person A.E. and his son immediately called law enforcement agencies. All supporting materials regarding the appeal to law enforcement agencies are available in the materials of the civil case. The statement of the third person A.E. registered in the ERDR 217112031001445 under Article 202, Part 2, paragraph 5 of the Criminal Code of the Republic of Kazakhstan. On November 30, 2021, by the Decree of the investigator of the OP UP of the Almaty district DP The deadline for the pre-trial investigation of the criminal case registered in the ERDR 217112031001445 was interrupted on the basis of art. 45 Part 7 paragraph 1 of the CPC RK. It follows from the text of the investigator's Resolution that the criminal case was interrupted due to the fact that the land plot is being alienated for state needs on the basis of the Decree of the Akimat of Nur-Sultan No. 510-2502 dated July 22, 2021. Thus, we believe that the Plaintiff and the third party took all possible measures from them to ensure the safety of their property.
During the trial, the Court involved the State Institution "Management of the Fuel and Energy Complex and Utilities of Astana" as a third party, where a representative of the State Institution confirmed the fact that on May 11, 2020, an agreement was signed with a contractor on the construction of a park in the area around the Kazakh drama theater under construction. She also confirmed that at the end of May 2020, the contractors began work on the contract. In practice, contractors perform work that is agreed with the customer in accordance with the contract, and the customer in this case is the Akimat of Astana. Thus, the representative of the State Institution "Management of the Fuel and Energy Complex and Utilities of Astana" confirmed our arguments that the metal fence and the wagon were destroyed and demolished on behalf of the customer.
We also stated in the court of first instance that, in accordance with paragraph 4, paragraph 2, Article 63 of the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law), it is stipulated that the date of compulsory alienation is indicated in the resolution 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, but not earlier than three months from the date of the official publication of this resolution. The Resolution of the Akimat of the city of Nur-Sultan No. 510-2502 dated July 22, 2021 complies with the above-mentioned Law, however, the Akimat of Astana, grossly violating its own Resolution, violated the rights of the owner and caused material damage. However, the court did not give these arguments a proper legal assessment.
The Court was provided with the original of the assessment report No. 87/06 dated June 18, 2020, which contains photographs confirming the presence of a metal fence, a construction trailer and parts of building materials. This assessment report was carried out as a confirmation of the market value of the fence destroyed at that time. The Court of First Instance in the decision indicates that these photographs are not dated, but the assessment clearly indicates the date of inspection of the object on June 16, 2020.
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.
Subsequently, by order of the Mayor's Office of Astana, the assessment report No. 65/1 ALM-157/4 dated June 25, 2020 was completed, where there is no fence, wagon and building materials belonging to the owner in the photos of the assessment object, and paving stones (sidewalks) have already been laid on part of the territory. The plaintiff and the third party had not given official consent to the seizure and demolition of the property at the time of the preparation of the assessment report No. 65/1 ALM-157/4 dated June 25, 2020.
Paragraph 1 of Article 65 of the Law 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 by the Laws of the Republic of Kazakhstan, or by court order.
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 no later than (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 the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
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.
In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.
Based on the above and guided by Articles 401 and 427 of the CPC RK,
I ask the Court:
The decision of the Saryarkinsky District Court of Astana dated February 22, 2023 – to cancel;
To make a new decision on the satisfaction of the claims of the Plaintiff A.A.E.
With respect,
Lawyer: G.T. Sarzhanov
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