Appeal against the decision of the Saryarkinsky District Court of Astana

 

 

Judicial Board

in civil cases

courts of Astana city

 

The plaintiffs:

A.A.E., IIN .,

A. E.A., IIN .,

residents of Almaty,

223 N. N. ave., sq.30

bodies.....

The defendant:

Akimat of Astana

BIN 010140002030

010000, Astana, Saryarkinsky district,

Beibitshilik street, 11, +7(7172)556484; +77017000990

 

 

The appeal

on the decision of the Saryarkinsky district Court of Astana dated 22.02.2023

 

By the decision of the Saryarkinsky District Court of Astana dated February 22, 2023, under the chairmanship of Judge Rashkaliyeva G.E. with the participation of the prosecutor of the Saryarkinsky district Tagayeva T.U., the claim of A.A.E. for compensation for material damage and expenses incurred by her in connection with the seizure of a land plot for state needs was rejected in full.

We disagree with this court decision on the following grounds.

I. If the resolution of the Akimat of Astana No.510-547 dated March 11, 2020 "On the compulsory alienation (purchase) of land for public needs" had not been adopted, the plaintiffs A.A.E. and A.E. would not have lost significant funds (more than 80 million tenge), which they spent before the adoption of this resolution on the development of private a land plot with an area of 0.3646 hectares belonging to Abylkasymova A.E., and two leased plots with an area of 0.2205 hectares, namely:

a) for the construction of a 330-meter-high metal fence with a height of 3 meters with two gates with a market value of 10,997,157 (ten million nine hundred ninety seven thousand one hundred and fifty) tenge, while part of the building materials and a construction trailer with a total value of 3,500,000 (three million five hundred thousand) tenge remained on the construction site;

b) for the preparation of various preliminary works on land plots worth 1,722,037 (one million seven hundred twenty-two thousand thirty-seven);

c) obtaining from the akimat a design permit for a restaurant and wellness complex on a private land plot, according to which specialists have prepared a draft design approved by the head of the Department of Architecture and Construction of Astana on September 19, 2017 No. 11892, for which 2,300,000 (two million three hundred thousand) tenge was spent;

d) preparation, according to this permission of the Akimat, of a multi-volume work project for a four-storey building with a total area of about 10,000 square meters and examination of the work project with a positive conclusion no.EQ-0020/19 dated October 21, 2019 for a total amount of 43,100,000 (forty-three million one hundred thousand) tenge;

Thus, according to the originals submitted to the court: report No. 87/06 "On the assessment of the market value of real estate" dated June 18, 2020, which contains supporting photographs with the presence of a metal fence, a construction trailer and parts of building materials; receipts for payment for various preliminary works on land plots; According to the preliminary and working drafts with the appropriate expertise and certificates of completed works, the Saryarkinsky District Court could establish that the total cost of the plaintiffs amounted to 61,619,190 (sixty-one million six hundred nineteen thousand one hundred and ninety) tenge.

However, the judge ignored these facts, although she was told that by the beginning of the construction of the facility, i.e. by the end of 2019, the plaintiffs had spent 77 million tenge, which was reported to the Mayor of Astana in a written statement by A.E. dated May 27, 2020.

Unfortunately, the court was not provided with the originals of a number of other expenses incurred by the plaintiffs, for which supporting documents were not received in a timely manner or they were lost, therefore the amount indicated in the claim decreased.

It follows from the above that the main point of A.x's claim is that almost the entire amount of the claim for compensation for material damage and expenses incurred by them occurred before the release of the Akimat's resolution dated March 11, 2020, therefore, the reimbursement of the plaintiffs' costs should not have been questioned by the court.

However, Judge Rashkalieva G.E. did not discuss these data and transferred the court session to the consideration of secondary issues that only indirectly relate to the main essence of the claim, namely, whether Akimat A. paid the amount of compensation for the land plot determined by the Almaty district court in full and when; whether law enforcement officials were called when the scrapping began. fencing of a private land plot; at what time did this happen; did the plaintiffs inform the akimat about these violations in writing and demanded compensation for their expenses for the construction of the fence; was the akimat responsible for the destruction of the fence; however, she did not ask: who exactly illegally destroyed the fence, invading private territory; who plundered private property – at least 110 metal pipes more than 3 meters long, hundreds of trapezoidal sheets, corners, fittings, 20 foundation blocks, other building materials, a construction wagon; where is it now these are properties; who will return them to their owners and when.

Thus, the judge's bias is obvious, especially since on the morning of February 22, at a court hearing, she announced that she would announce the decision on March 1 at 5 p.m., however, she unexpectedly changed her decision and announced it on February 22 at 5:30 p.m., but without the participation of the plaintiffs. This means that she was instructed to make an urgent decision with a negative result for A..

II. The judge unreasonably repeatedly listened to the opinion of the representatives of the defendants, who claimed that A.A.E. had been compensated in full for the seized land plot: 286,484,450 (two hundred and eighty-six million four hundred and eighty-four thousand four hundred and fifty) tenge for a privately owned land plot with an area of 0.3646 hectares and for two leased plots with an area of 0.2205 1,495,807 (one million four hundred and ninety-five thousand eight hundred and seven) tenge per hectare, therefore, the akimat has already re-registered these plots into state ownership. While there is no mention of this in the statement of claim, therefore, it is proposed to compensate the plaintiffs only for the material damage suffered by the owner of the land plot A.A.E. for its development before the adoption of Akimat resolution No. 510-547 dated March 11, 2020.

For the information of the appeals board, we inform you that in the period from May 2020 to November 2021, the akimat repeatedly held tenders on a competitive basis to assess the market value of the A.A.E. land plot with an area of 0.3646 hectares, which had very low valuation amounts (in the range of 90.6 million – 126.7 million tenge), which did not correspond to market prices. In this regard, the owner of the land plot in A.A.E. had to turn to independent appraisers and independent forensic commodity experts.

In general, for the period from April 2021 to August 2022, 4 land assessments and 4 forensic commodity examinations were carried out, while the estimates were in the range of 289.7 million – 352.3 million tenge, forensic examinations in the range of 284.6 million – 314.5 million tenge. It should be noted that the district court and the appeals board of the city Court twice sent assignments to the Center for Forensic Examinations of the Ministry of Justice in Astana, which gave an estimate of 286.5 million tenge on February 24, 2022, and 314 million 484 thousand tenge on August 9, 2022. It follows from this that the akimat, represented by the State Enterprise for Urban Real Estate (Director A.N. Strochkov)  He purposefully reduced the valuation amount of the land plot and delayed the process of returning the market value to A.A.E. for the land plots seized from her.

It was only in January 2022 that the akimat filed its claim with the Almaty district court, where, as a result, they proved their case and only in October 2022 received the required amount, according to the decision of the district and city courts, for the land plots seized from them. At the same time, these courts did not raise or consider the issues of reimbursement of expenses incurred by A. for the development of land plots.

Unfortunately, Judge Rashkalieva G.E. did not delve into the essence of these processes, although it should have been done, since A. in his lawsuit additionally demands to reimburse the costs they incurred for all kinds of assessments of private land; forensic commodity expertise; for flights from Almaty to Astana and vice versa, due to the fact that specialists they demanded to see the land plot, and in their reports, the photographs show the condition of the seized land plot at the time of assessment or examination. These amounts, as well as the services of lawyer A.A.E. estimated at 2,593,292 (two million five hundred and ninety-three thousand two hundred and ninety-two) tenge.  The judge's refusal to reimburse them is illegal, because A. was forced to defend his interests by the Akimat of Astana.

III. When considering the claim, Judge Rashkalieva G.E. focused on the issue of the time period when the akimat began to break down the fence and seize private property, while she was presented with the originals of materials that proved the illegality of the akimat's actions. But this is a secondary issue for resolving the return by the akimat of the funds spent by the owners related to the seizure of land plots for state needs. Despite this, the judge was presented with a number of materials proving the self-seizure of other people's property by akimat employees, namely:

a) Akimat Resolution No. 510-547 dated March 11, 2020 "On the compulsory alienation (purchase) of land plots for state needs", paragraph 1 of which states: "To make compulsory alienation of land plots belonging to A.A.E. from June 19, 2020 to July 19, 2021." But the akimat ignored this resolution and began seizing private property after May 11, 2020, when the "Management of the Fuel and Energy complex and Utilities of the city Astana" has signed an agreement with a contractor for the execution of these works in order to carry out survey design works of squares and boulevards along Mynzhyldyk Alley. At the same time, it should be noted that the akimat also did not comply with the deadlines for the withdrawal for state needs of more than 40 land plots located next to the A.A.E. land plots, according to Resolution No. 510/891 of May 12, 2020, which states: "to carry out forced alienation of land plots from August 7, 2020 to August 7, 2021. the total area is about 7.5 hectares."

b) The judge also reviewed a number of documents proving that the self-seizure by the akimat began in May 2020, but did not draw any conclusions from this fact, although she was presented with:

1) A. E.'s statement dated May 27, 2020 to Akim A. Kulginov, which states that as of May 25: "builders, without our consent, broke down the entrance gate to my site, built a driveway, demolished the fence on the north side of my fence, filled my territory with their waste," further – "compensation for my The cost is 243.5 million tenge, including the expenses incurred by me – 77.0 million tenge.

2) police materials, according to which police officers were called to the land on May 25, 2020, who stated the fact of the destruction of the fence and the presence of construction debris on the territory, etc., as well as A. E.'s statement to the Almaty district police department dated June 4, 2020 about the seizure of private property by the akimat. In this case, the police should have opened a criminal case on the fact of destruction and self-seizure of other people's property, but they wrote it off as a nomenclature case, and A.'s appeals. They did not give anything to the prosecutor's office, as there was a pandemic and it was impossible to get an appointment with their management, so the prosecutor's office and the police wrote only letters to the applicants.

3) report No. 87/06 on the assessment of the market value of real estate dated June 18, 2020, in which appraiser A.A. Aldiev indicates that the process of destroying the 330-meter metal fence is in full swing, while the territory is littered with construction debris, there is no part of the building materials, but there is a construction trailer and all this is recorded in the attached photographs of the report dated June 16, 2020;

4) the report on the valuation of real estate by the Kalinin Partners valuation and consulting company (appraiser Kalinin A.N.) dated April 13, 2021, the photographs of which show that there is no fence on the land and it has been developed by the akimat, but since the winter in Astana is long, the development took place until the autumn of 2020.

The above-mentioned materials prove that the akimat arbitrarily seized someone else's property, and violated the terms of alienation set by the akimat, while not paying the market value of land plots until October 2022, having started all kinds of assessments, i.e. in various ways delayed the process of returning the market value of the property seized from the owner. At the same time, the court was provided with copies of all letters to the akimat, in which the owner A.A.Ye. She demanded to return the construction materials, the construction trailer and reimburse the cost of the fence, which was destroyed by the builders of the square around the drama theater under an agreement with the akimat.

However, this was not enough for Judge Rashkalieva G.A. and the representative of the prosecutor's office Tagaeva T.U., so they decided to dismiss A.A.E.'s claim, whereas it was necessary to adopt a separate ruling on the self-seizure of other people's property, the return of stolen property to the owner of the builders, or to open a criminal case on these facts.

To prove A.A.E.'s correctness, we are sending additional materials to the appeals board, which show that by July 11, 2020, a complete self-seizure of a private land plot with the destruction of its fencing had already occurred.

Report No. 65/1 ALM-157/4 "On the assessment of the market value of real estate" dated June 25, 2020, which was produced by Business Partner Consult LLP commissioned by Astana City Real estate (Director A.N. Strochkov) based on the results of a public procurement tender, i.e. by the Akimat, while the land plot was valued at 90,571,704 (ninety million five hundred seventy one thousand seven hundred four) tenge. However, A. proved the inconsistency of this assessment, but he acted for 6 months. Then A.N. Strochkov. He held the second tender and again announced the winner to be Business Partner Consult LLP, which conducted the second assessment and it amounted to 117,792,000 (one hundred seventeen million seven hundred and ninety-two thousand) tenge. The bias of this assessment was proved by A. on the basis of independent assessments and forensic commodity expertise. It should be noted that in the first report dated June 25, 2020, the photographs show that there is no fence on the A.A.E. land plot, and paving stones (sidewalks) have already been laid on part of the territory. This was verbally stated to the judge that in May-June 2020, the land plot of A.A.E. It was practically seized and construction work was carried out on it by contractors hired by the akimat under the contract.

In addition, the judge was presented with two letters from Strochkov A.N. In the first of them, dated April 9, 2021, A.E. writes to Akim Kulginov A.S. a letter asking him to reimburse the costs incurred for the construction of the fence and the return of the construction trailer, but receives a letter from Strochkov A.N. On April 21, 2021, he also sends this letter State Institution "Management of the fuel and energy complex and utilities of Astana" (A.A.E. only a copy), in which he writes: "We ask you to return the construction wagon to the owner A. A.E., since landscaping and landscaping works were carried out on this site by subordinate and contracting organizations."

Thus, he confirms that construction work in the summer of 2020 was carried out on a private plot of land, while there was a construction wagon.

However, the judge ignored this fact and became guided by the statement of the representative of the akimat at the trial that there was no self-seizure of someone else's land. Although the judge received a copy of A.N. Strochkov's second letter dated October 19, 2022, in which he writes: "We inform you for information that prior to the payment of monetary compensation by the Department, no work was carried out on the site," i.e. until October 2022, thereby misleading the court, but the judge again did not pay attention to this deception from one of the heads of the akimat. Astana, which is directly responsible for the seizure of land for state needs.

Now, to prove this deception, which Judge Rashkalieva G.E. accepted on faith, we are sending report No. 19/07 on the assessment of the market value of real estate dated July 14, 2020, produced by independent appraiser Tatenov N.M., based on the order of the son of A. – A.M.E. The site was inspected on July 11, 2020, the photos show that the metal fence of the private land plot is no longer there, while there is no construction wagon and building materials, the territory is littered with soil and sand, some concrete circles have appeared, and a Kamaz dump truck is located on the territory, i.e. the development of someone else's territory It's in full swing.

Thus, the bias and bias of Judge G.E. Rashkalieva's decision is beyond doubt, but someone influenced her to reconsider her decision to announce the results of the court session on March 1 at 5 p.m. she urgently made a new decision without notifying the plaintiff to announce her decision on the evening of the same day when the last court session took place, i.e. February 22, 2023.

Based on the consideration of the materials previously provided to the court and new additional materials, I request the Court of Appeal:

to cancel the decision of the Saryarkinsky district court of Astana dated February 22, 2023.

to make a decision to satisfy A.'s claim in full.

to adopt a definition regarding the return of A.A.E.'s stolen property and bringing to justice the guilty persons of the akimat who allowed the destruction, self-seizure and theft of private property.

The plaintiffs,

A.A.E.

A. E.

 

 

 

 

 

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