Issuance of Private Rulings in Administrative Proceedings Upon Identification of Violations of Legality

Pursuant to paragraph 3 of Article 1 of the Administrative Procedural and Process-Related Code (APPC), the provisions of the Civil Procedure Code (CPC) shall apply in administrative proceedings unless otherwise provided by the APPC.

In accordance with paragraph 1 of Article 270 of the CPC, where the court identifies cases of violation of legality, it may issue and send a private ruling. Where such violations have been committed by state bodies, officials, or civil servants, the court shall issue and send a private ruling to the relevant organizations, officials, or other persons performing managerial functions, who are required to report on the measures taken by them within one month.

The issuance of private rulings is one of the guarantees for achieving the objectives of strengthening legality and the rule of law and fostering respect for the law and the court.

Private rulings concerning housing commissions of administrative bodies are sent by courts to the superior authority for the purpose of taking appropriate response measures.

The practice of issuing private rulings in the category of cases under review demonstrates that courts issue private rulings in respect of violations established by court decisions.

A private ruling, as a response measure to violations identified during the consideration of an administrative case, should not duplicate the violations established by the court decision.

When issuing private rulings addressed to state bodies, the following factors should be taken into account:

• systematic violations of housing legislation on the same issue;
• significant legal consequences arising from the violations for a participant in the administrative procedure.

Example of Issuance of a Private Ruling Concerning Systematic Violations by Local Executive Bodies Resulting in New Court Proceedings

M.’s claim against the Department was satisfied by a court decision dated May 23, 2022. The decision of the Housing Commission under the Akimat of Astana to exclude M.A. (daughter), A.B. (granddaughter), D.B. (granddaughter), Z.B. (granddaughter), and V.B. (granddaughter) from the family composition of Z.A. was declared unlawful. The Housing Department was ordered to adopt an administrative act restoring the above-mentioned persons to the lists of persons in need of housing from the state housing fund.

In violation of the housing legislation, the respondent removed M. and her four minor children from the register of persons in need of housing, although they met the criteria of a single-parent family and a large family.

The violations committed resulted in a significant infringement of the rights of the claimant and her minor children.

At the same time, the court noted that similar violations had previously been committed by the authorized state body with regard to the claimant’s family.

By the decision of the Saryarka District Court of Astana dated May 4, 2017, upon Z.’s claim, the order concerning the transfer of her position in the housing queue was declared unlawful, and the Housing Department was ordered to eliminate the violations of her rights, freedoms, and legitimate interests.

Despite this, the Department continued to violate the constitutional rights of the claimant’s family and failed to comply with the obligations provided for by Article 25 of the Constitution of the Republic of Kazakhstan, thereby giving rise to new court disputes.

By means of a private ruling, the Akimat of Astana was notified of the violations of legality identified for the purpose of taking appropriate measures.

According to the response of the Akimat of Astana, the requirements of the court decision and the private ruling were fulfilled by including the following persons in the family composition: M.A. (daughter), A.B. (granddaughter), D.B. (granddaughter), Z.B. (granddaughter), and V.B. (granddaughter).

Thus, M.’s previous position in the housing queue, registered in her mother’s name since June 19, 2007, was restored. As of April 11, 2023, M.’s queue number was No. 139.

Housing will be provided to M. as residential premises become available in the municipal housing fund.

Since the private ruling was issued for the purpose of eliminating deficiencies in future work, the court’s conclusions concerning the assessment of the adequacy of housing have been taken into account and will be applied in activities related to the provision of housing from the state housing fund.

Significant Legal Consequences Arising from a Violation of the Administrative Procedure

In the case brought by R. against the Department seeking to declare the inaction unlawful, the Specialized Interdistrict Administrative Court (SMAS) issued a private ruling addressed to the Akim on June 21, 2022.

In considering the case, the court established the following violations of the applicable legislation.

As a military servicemember, the claimant has been on the waiting list for housing from the state housing fund since June 29, 2010.

On March 29, 2021, R. submitted an application to participate in the State Program for Housing and Communal Infrastructure Development “Nurly Zher” for 2020–2025 under the “Shanyrak” program.

Following the housing allocation on July 29, 2021, an apartment was allocated to the claimant, and on July 30, 2021, the Bank forwarded the relevant documents to the Department for the purpose of concluding the sale and purchase agreement.

Pursuant to paragraph 1 of Article 76 of the Administrative Procedural and Process-Related Code (APPC), the period for an administrative procedure initiated on the basis of an application is fifteen working days from the date of receipt of the application, unless otherwise provided by the laws of the Republic of Kazakhstan.

Pursuant to Article 77 of the APPC, after considering an administrative case, an administrative body or official shall make one of the following decisions: to adopt an administrative act; or to terminate the administrative procedure. Upon completion of the consideration of an administrative case, a decision shall be issued in writing and sent to the participant in the administrative procedure.

However, the agreement was not concluded within the period established by law, nor was the claimant provided with a written decision refusing to conclude the agreement or refusing to provide housing, which indicated the respondent’s inaction.

Furthermore, on December 28, 2021, the claimant received notification through the 1414 call center that he had been removed from the waiting list. At the same time, the respondent also failed to comply with the requirements of paragraph 3 of Article 73 of the Law.

The above violations constituted the basis for granting the claimant’s claims to declare the respondent’s inaction unlawful.

In all cases, responses confirming compliance with the private rulings were submitted within the period established by law.

Conciliation Procedures

The APPC provides for the possibility of conducting conciliation procedures in disputes arising from public-law relations. At the same time, conciliation between the parties is permitted where the respondent has administrative discretion. This provision of the legislation is justified by the fact that violations of the rights of a citizen or legal entity may be remedied through the revocation of the contested act or the termination of a particular action by the state body or official themselves.

On the basis of mutual concessions, the parties may fully or partially conclude an administrative case by entering into a conciliation agreement, a mediation agreement, or an agreement on settlement of the dispute through a participatory procedure at any stage of the administrative process, before the court retires to deliberate and render its decision.

The court’s taking measures to reconcile the parties and assisting them in settling the dispute at all stages of the proceedings follows from the objectives of administrative proceedings. Maintaining a neutral position with regard to the parties’ claims, the court explains to the parties their right to conduct conciliation procedures and the legal consequences of concluding such agreements.

At the same time, the application within administrative proceedings of the principles of the APPC (the active role of the court, fairness, and proportionality), procedural coercive measures (monetary penalties), and conciliation procedures has significantly improved the quality of adjudication of cases in the category under review.

Thus, implementation of the principle of the active role of the court contributes either to the judicial resolution of the dispute or to the withdrawal of the claim due to an amicable settlement of the dispute or clarification of the prospects of the case. For example, the respondent may revoke the contested act itself or take actions as a result of which the dispute ceases to exist.

Jurisdiction

When considering disputes arising from housing legal relations, compliance with the rules of jurisdiction, filing claims by persons entitled to bring such claims, and the proper determination of the subject matter of the claim are of particular importance for resolving disputes.

Jurisdiction is determined in accordance with Articles 102, 103, and 106 of the APPC. At the request of the claimant, cases falling within the jurisdiction of specialized district and equivalent administrative courts may be considered by the court at the claimant’s place of residence, with the exception of cases falling within the jurisdiction of specialized district and equivalent administrative courts located within cities of republican significance, the capital, and regional centers.

Pursuant to Article 103 of the APPC, military courts consider administrative cases brought by servicemembers of the Armed Forces of the Republic of Kazakhstan, other troops and military formations, and citizens undergoing military training, where the respondent is a military administration body or a military unit, except for cases falling within the jurisdiction of other specialized courts.

If a military court has not been established within the relevant administrative-territorial unit, administrative cases falling within its jurisdiction shall be considered by specialized district and equivalent administrative courts in accordance with the procedure established by this Code.

The analysis showed that, in most cases, claims submitted to the courts were accepted in compliance with the rules of jurisdiction and did not cause any particular difficulties for the courts.

At the same time, where a military court exists in the region, questions arise regarding the proper determination of jurisdiction over claims concerning the assignment of EHV.

Thus, TGV is assigned to active-duty military servicemembers, and disputes concerning such payments fall within the jurisdiction of military courts. EHV, however, is assigned upon the dismissal of a military servicemember and, due to the loss of military status by one of the parties to the dispute, special jurisdiction no longer applies.

Based on the judicial practice described above, it should be noted that the proper determination of jurisdiction is important due to the relevant constitutional provision, and compliance with jurisdictional rules in administrative cases must be ensured in accordance with Articles 102 and 103 of the APPC.

Procedure for Adjudication of the Case

Pursuant to Articles 146 and 148 of the Administrative Procedural and Process-Related Code (APPC), an administrative case shall be considered and resolved within a reasonable period, but no later than three months from the date the claim is filed.

Judicial proceedings shall be conducted in accordance with the rules of the Civil Procedure Code (CPC), except for the specific features established by Article 147 of the APPC. With the consent of the parties, the court may consider an administrative case through written proceedings within a reasonable period, but no later than three months from the date the claim is filed.

After registration of the claim, at the preliminary hearing and during the judicial proceedings, the court, within the framework of its active role, facilitates the formation of a proper legal position by the claimants.

Generally, the courts of the Republic considered cases in this category in compliance with the above requirements.

Persons Participating in the Case

Pursuant to Article 26 of the APPC, participants in administrative proceedings are the claimant, respondent, interested person, and prosecutor.

At the same time, pursuant to Article 31 of the APPC, the prosecutor generally does not participate in housing disputes.

The persons participating in the case are determined by the claimant when filing the claim with the court. The persons entitled to bring a claim before the court are specified in Articles 67–68 of the Law.

At the preliminary hearing, the court determines the persons whose rights, freedoms, or legitimate interests may be affected by an administrative act, administrative action (inaction), and subsequently involves such persons in the proceedings as interested persons in accordance with the relevant article.

The analysis showed that, in claims brought by military servicemembers, law enforcement officers, and employees of special state bodies (SSBs) concerning TGV and EHV payments, the respondent is the relevant territorial administrative body under which the housing commissions that adopted the respective decisions have been established (military units, penal enforcement institutions, police departments, line departments, security services, etc.). Where necessary, a superior state body (Committee, Ministry) is involved in the proceedings as an interested person.

In claims brought by citizens against local executive bodies (LEBs), the akim of the relevant administrative-territorial unit and/or the Department of Housing and Communal Services or the Housing Relations Department is involved as the respondent.

Pursuant to subparagraph 12) of paragraph 1 of Article 31 of the Law “On Local State Administration and Self-Government in the Republic of Kazakhstan,” a district akimat (or an akimat of a city of regional significance), in accordance with the legislation of the Republic of Kazakhstan, organizes the construction and distribution of housing from the municipal housing fund.

Pursuant to paragraph 1 of Article 77 of the Law, housing from the municipal housing fund or housing leased by a local executive body from the private housing fund shall be provided by decision of the local executive body at the applicant’s place of residence on the basis of a decision of the housing commission.

Permanent housing commissions of local executive bodies are established under the relevant local executive bodies. The authorized body is the local executive body providing the housing.

In each particular case, it is necessary to properly determine the respondents, taking into account the subject matter and grounds of the claimant’s demands, the respondent’s objections, the laws applicable to the dispute, as well as the legal status and powers of the authorized bodies.

Where a claim is filed against an improper respondent, pursuant to Articles 16 and 116 of the APPC, in order to prevent delays in the consideration of the dispute, the court should explain to the claimant the procedure for replacing the improper respondent with the proper respondent in accordance with Article 29 of the APPC.

Based on the practice of local courts, there is no need to involve members of housing commissions as respondents.

A judgment granting the claim is enforced by the administrative body, the akim, or the Department of Housing and Communal Services. No difficulties or problematic issues arise in the enforcement of judgments that have entered into legal force.

Evidence and Burden of Proof

Although, pursuant to Article 129 of the APPC, the burden of proof in claims challenging an administrative act or action lies with the administrative body, the body/housing commission has access only to the data contained in information-exchange systems between state bodies. When making decisions, local executive bodies generally do not request additional documents from persons on the housing waiting list.

At the same time, the nature of proof in housing disputes requires the submission of evidence containing information protected by law or information that, by its nature, can only be provided by the claimant (mortgage agreements, bank certificates, certificates from the place of employment or study, service records), as well as personal information (information concerning the composition of the family).

Thus, as evidence:

a) in claims challenging decisions of housing commissions of local executive bodies to remove persons from the housing waiting list, claimants may submit documents confirming their eligibility for inclusion in the relevant category of persons on the waiting list (service records from human resources departments, employment certificates for civil servants, disability certificates, birth certificates for all children, divorce certificates, certificates of registered property rights for all family members, etc.);

to prove residence (non-departure), claimants may submit certificates from educational institutions, certificates from their place of employment, witness statements, and reports (character references) from local police inspectors.

Time Limits for Filing a Claim

(Practice Concerning Restoration of Time Limits)

The time limits for filing a claim are provided for in Chapter 20 of the Administrative Procedural and Process-Related Code (APPC), in particular, Article 136 of the APPC.

As a general rule, a time limit for filing a claim that has been missed for a valid reason may be restored by the court in accordance with the rules of the Civil Procedure Code (CPC). The reasons for missing the time limit for filing a claim with the court and their significance for the proper resolution of the administrative case shall be established by the court at the preliminary hearing.

Missing the time limit for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed time limit for applying to the court, constitute grounds for returning the claim.

At the same time, pursuant to paragraph 5 of Article 136 of the APPC, a person who did not participate in the administrative procedure and whose rights, freedoms, and legitimate interests are affected by an administrative act has the right to file a claim with the court within one month from the date on which the person learned or could have learned about the adoption of the administrative act, but no later than one year from the date of its adoption.

Application of Procedural Coercive Measures

Where a violation of procedural legislation is established during the consideration of a case, procedural coercive measures shall be applied in accordance with Chapter 18 of the APPC.

Pursuant to Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including cases involving the submission of evidence or the performance of court instructions in violation of the time limit established by the court without valid reasons, if this has resulted in a delay in the consideration of the administrative case. The penalty shall amount to ten monthly calculation indices (MCIs) for each such action (inaction).

For failure to comply with a court requirement or request, failure of a person participating in an administrative case to appear in court, failure to notify the court in a timely manner, late submission of a response, failure to comply with the instructions of the presiding judge during a court hearing, violation of the rules established by the court, as well as other actions (inaction) clearly demonstrating disrespect for the court and/or judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices.

For failure to comply with a court judgment or a court ruling approving an agreement between the parties on conciliation, mediation, or settlement of the dispute through a participatory procedure, the court shall impose a monetary penalty on the respondent in the amount of fifty monthly calculation indices, specifying in the same judicial act a period not exceeding one month within which the judgment or ruling must be enforced.

During the period under review, the courts developed a practice of applying procedural coercive measures in the form of monetary penalties.

In this category of disputes, monetary penalties are most frequently imposed on respondents for the following reasons:

• late submission of a response;
• late or incomplete submission of the materials of the administrative case;
• failure to appear at a court hearing (or failure to connect online) without a valid reason.

Abbreviations Used

APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan

CPC – Civil Procedure Code of the Republic of Kazakhstan

CC – Civil Code of the Republic of Kazakhstan

NP SC – Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan

IS – Information System

Administrative Case Panel of the Supreme Court of the Republic of Kazakhstan – Judicial Panel for Administrative Cases of the Supreme Court of the Republic of Kazakhstan

Panel or Judicial Panel – Judicial Panel for Administrative Cases

SMAC – Specialized Interdistrict Administrative Court

MIA – Ministry of Internal Affairs of the Republic of Kazakhstan

MOD – Ministry of Defense of the Republic of Kazakhstan

NSC – National Security Committee of the Republic of Kazakhstan

GP – General Prosecutor’s Office of the Republic of Kazakhstan

DED – Department of Emergency Situations

SSBs – Special State Bodies

PD – Police Department

TGV – Current Housing Payments

EHV – One-Time Housing Payments

SHF – State Housing Fund

LEBs – Local Executive Bodies

The Main Regulatory Legal Acts Governing Housing Disputes Are:

• Constitution of the Republic of Kazakhstan;
• Administrative Procedural and Process-Related Code (APPC);
• Civil Code (CC);
• Civil Procedure Code (CPC);
• Law of the Republic of Kazakhstan “On Housing Relations” (hereinafter – the Law on Housing Relations);
• Law of the Republic of Kazakhstan “On State Property” (hereinafter – the Law on State Property);
• Law of the Republic of Kazakhstan “On Military Service and the Status of Military Servicemembers” (hereinafter – the Law on Military Service);
• Law of the Republic of Kazakhstan “On Law Enforcement Service” (hereinafter – the Law on Law Enforcement Bodies);
• Law of the Republic of Kazakhstan “On Legal Acts” (hereinafter – the Law on Legal Acts);
• Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997 No. 9 “On Judicial Practice in Applying Legislation on the Privatization by Citizens of Residential Premises from the State Housing Fund.”

As Well as the Following Subordinate Regulatory Legal Acts:

• Rules for providing military servicemembers with official housing and for calculating, assigning, recalculating, making, terminating, suspending, and resuming housing payments, approved by Resolution No. 49 of the Government of the Republic of Kazakhstan dated February 12, 2018 (hereinafter – Rules No. 49);
• Rules for the provision of monetary compensation, approved by Resolution No. 50 of the Government of the Republic of Kazakhstan dated February 12, 2018 (hereinafter – Rules No. 50);
• Rules for providing employees of internal affairs bodies with official housing and for calculating, assigning, recalculating, making, terminating, suspending, and resuming housing payments, as well as the categories of positions of employees of internal affairs bodies entitled to receive housing payments, approved by Resolution No. 524 of the Government of the Republic of Kazakhstan dated August 5, 2021 (hereinafter – Rules No. 524);
• Rules for the privatization of housing from the state housing fund, approved by Resolution No. 673 of the Government of the Republic of Kazakhstan dated July 2, 2013 (hereinafter – Rules No. 673);
• Rules for the provision of the state service “Registration and placement on the waiting list, as well as adoption by local executive bodies of a decision to provide housing to citizens in need of housing from the state housing fund or housing leased by a local executive body from the private housing fund,” approved by Order No. 441 of the Acting Minister of Industry and Infrastructure Development of the Republic of Kazakhstan dated August 13, 2021;
• Rules for the transfer of state property assigned to state legal entities from one type of state ownership to another, approved by Order No. 85 of the Minister of National Economy of the Republic of Kazakhstan dated May 26, 2023;
• Rules for registering citizens of the Republic of Kazakhstan in need of housing from the state housing fund or housing leased by a local executive body from the private housing fund, approved by Order No. 168 of the Minister of Industry and Construction of the Republic of Kazakhstan dated December 27, 2023.

If an international treaty ratified by the Republic of Kazakhstan establishes rules different from those provided for by the Law on Housing Relations, the rules of the international treaty shall apply.

Pursuant to Articles 10 and 12 of the Law on Legal Acts, codes have greater legal force than laws; where there are contradictions between provisions of regulatory legal acts of different levels, the provisions of the higher-level act shall apply.

As a general rule established by Article 4 of the Civil Code and Article 43 of the Law on Legal Acts, regulatory legal acts shall apply to relations arising after their entry into force.

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