Office housing is not subject to gratuitous privatization, including due to its location in closed and isolated military camps, at border posts and commandant's offices.
According to paragraph 7 of Article 55 of the Law of the Republic of Kazakhstan "On Military Service and the Status of military personnel", in cases where official housing is not subject to gratuitous privatization, including due to its location in closed and isolated military camps, at border posts and commandant's offices, the right to gratuitous privatization is compensated by the cost of the corresponding housing in accordance with the procedure determined by the Government of the Republic Kazakhstan A. He appealed to the court to the republican state institution "Akmola District Operational unit" of the Ministry of Defense of the Republic of Kazakhstan to declare illegal the refusal to pay monetary compensation in return for the right to privatize official housing and the obligation to pay compensation. A. motivated his claims by the fact that he and his family members were provided with housing from the state housing stock for the period of military service in the form of two rooms in a dormitory at the address: Astana, Sh. Kudaiberdyuly street, house number 24. A. On December 29, 2015, he was discharged from military service for health reasons with more than 20 years of service. He is entitled to monetary compensation in return for the right to privatize housing, but the defendant illegally does not pay it, so he asked to recognize the actions being appealed as illegal and recover the amount of compensation.
Office housing is not subject to gratuitous privatization, including due to its location in closed and isolated military camps, at border posts and commandant's offices.
The claim was dismissed by the decision of the military court of the Akmola garrison dated October 18, 2016. By the resolution of the Judicial Board for Civil Cases of the Military Court of the Republic of Kazakhstan dated December 28, 2016, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of the local courts, and a new decision was made in the case to satisfy A.'s claims. and declared illegal the order of the republican state institution "Akmola Regional Operational unit" of the Ministry of Defense of the Republic of Kazakhstan No. 221 dated December 31, 2015 regarding the cancellation of order No. 131 dated August 5, 2015 on the payment of monetary compensation to A. in the amount of 24,119,640 tenge. 28,151,280 tenge was recovered from the defendant in favor of A. and the republican state institution "Akmola District Operational Unit" of the Ministry of Defense of the Republic of Kazakhstan was charged with the obligation to eliminate the violation in full and restore the violated rights of A. for the following reasons. According to the Constitution, conditions are being created in the Republic of Kazakhstan to provide citizens with housing. The constitutional right of citizens to housing is one of the fundamental human rights and consists in ensuring that the State provides stable, permanent use of residential premises by persons who legally occupy it, and a person has the right to expect support from the State in providing housing. The materials of the civil case established that A. served in the Central Sports Club of the Army of the Ministry of Defense of the Republic of Kazakhstan. During the period of military service, the plaintiff and his family members were provided with housing in the form of two rooms in a dormitory located at 24 Sh. Kudaiberdyuly Street, Astana, on the basis of a residential lease agreement dated May 3, 2015 No. 1582 from the state housing fund. On August 4, 2016, the plaintiff filed a report addressed to the head of the republican state institution "Akmola Regional Operational Unit" of the Ministry of Defense of the Republic of Kazakhstan (hereinafter – RSU) on the payment of monetary compensation for the right to privatize housing. On August 5, 2016, an order was issued by the head of the Russian State University for the payment of compensation in the amount of 24,119,640 tenge. By order of the Minister of Defense of the Republic of Kazakhstan dated December 29, 2015, A. was discharged from military service for health reasons with more than 20 years of service without compensation. After his dismissal, the applicant became aware that by order of the head of the Russian State University No. 221 dated December 31, 2015, the payment of monetary compensation in the amount of 24,119,640 tenge was canceled.
The subject of the dispute is the legality of the order dated December 31, 2015 and the recovery of compensation in the amount of KZT 28,151,280 based on housing prices in 2016. The local courts, rejecting the application, concluded that the dormitory was not located in a closed military camp, and current legislation did not provide for compensation for persons living in dormitories. This position of the courts is erroneous on the following grounds. According to paragraph 6 of Article 55 of the Law of the Republic of Kazakhstan "On Military Service and the Status of Military Personnel" (hereinafter referred to as the Law), military personnel who have been in military service for ten years or more as of January 1, 2013, are provided with official housing from the state housing stock, which they have the right to privatize (with the exception of housing located in closed and isolated military camps, at border posts and commandant's offices) on the terms and in accordance with the procedure provided for by the housing legislation of the Republic of Kazakhstan. Paragraph 7 of this article stipulates that military personnel who have been in military service for fifteen years or more in calendar terms as of January 1, 2013, have the right to privatize official housing free of charge after twenty years of military service in calendar terms. Thus, it is stipulated that military personnel who have been in military service for more than twenty years have the right to privatize official housing free of charge. Further, paragraph 7 of Article 55 of the Law states that in cases where official housing is not subject to gratuitous privatization, including due to its location in closed and isolated military camps, border posts and commandant's offices, the right to gratuitous privatization is compensated by the cost of the corresponding housing in accordance with the procedure determined by the Government of the Republic of Kazakhstan. In accordance with paragraph 7 of the Rules for Compensation of the Right of Gratuitous Privatization of Office housing, which is not subject to privatization, including due to its location in closed and isolated military camps, border posts and commandant's offices, approved by Resolution of the Government of the Republic of Kazakhstan dated August 28, 2012 No. 1092 (hereinafter – Rules), the amount of monetary compensation is determined by multiplying the number of permanently cohabiting family members of the recipient, including himself, by the norms of the prescribed useful area (18 square meters) and the price of one square meter of sale of new housing on average in the republic for January of this year according to the data of the authorized body in the field of state statistics, published on its official website in accordance with the statistical work plan. For this purpose, the recipient submits documents confirming the composition of the recipient's cohabiting family members. The above–mentioned legal norms provide for the following grounds on which it is possible to pay monetary compensation in return for the right to privatize: – the applicant must be a military man, – the availability of official housing that is not subject to privatization, - experience of more than 20 years of military service in calendar terms. In the present case, the applicant submitted the report during his service period, he has the necessary length of service, and lives in a dormitory.
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