PETITION to the Judicial Board for Civil Cases The Supreme Court on the cassation review of decisions that have entered into force
To the Judicial Board for Civil Cases
The Supreme Court of the Republic of Kazakhstan
Astana, Kunaeva St., 39.
+7 717 271 00 00.
from the Plaintiff: A.A.E.
IIN .
residing in Almaty,
223 N. N. ave., sq.30
+7 701 …..
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.
Respondent: Akimat of Astana city
BIN 010140002030
11 Beibitshilik str., Nur-Sultan, 010000
+7 (7172) 55 64 84; +7 701 700 09 90.
Third party: Government Agency "Management
housing and Housing Inspection of Astana city"
BIN 200340006724
Astana, Baykonyr district, Republic ave., building 32.
+7 (7172) 55-18-01
a.saipov@astana.kz
A third party who does not declare their own
requirements for the subject of the dispute:
A.E.
IIN .
residing in Almaty,
223 N. N. ave., sq.30
+7 701 ..
State Institution "Fuel and Energy Management
complex and communal services of" Astana city
BIN 130740015861
Astana, Beibitshilik str. 11.
+7 (7172) 55-72-36.
THE PETITION
on the cassation review of the final decisions of the Saryarkinsky District Court of Astana dated February 22, 2023 and the Decision of the Judicial Board for Civil Cases of the Astana City Court dated June 2, 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. (Hereinafter referred to as the Plaintiff) to the Akimat of Astana (hereinafter referred to as the Defendant) for compensation of material damage and expenses in connection with the seizure of the land plot, the Court Decided – in the lawsuit A.A.E. to the Akimat of Astana for compensation of material damage and expenses in connection with the seizure of the land plot - to refuse.
The court found that from the explanations of the plaintiff's side, in May 2020, employees of the akimat began to destroy the fence enclosing the territory of a private land plot owned by the plaintiff, 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 do not agree with the decision of the court of first instance, we consider it illegal due to the following circumstances:
The court of first instance 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 LLP "G.", survey work) - 1,722,037 tenge; preparation of a draft project - 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, Abylkasymov Yerasyl, 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 land or other immovable property in connection with the seizure of land 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.
Accordingly, we filed an Appeal against the decision of the Saryarkinsky District Court of Astana on February 22, 2023.
On June 2, 2023, the Judicial Board for Civil Cases of the Astana City Court, consisting of Chairman A.K. Kanbaev, judges A.K. Ramazanova, T.Y. Mirzoyan, considered the civil case No. 7199-23-00-2a/2058, on the claim of A. A.E. to the Akimat of Astana for compensation for material damage and expenses in connection with the seizure of a land plot. The Court ruled that the Decision of the Saryarkinsky District Court of Astana dated February 22, 2023 in this case should remain unchanged. To leave the appeals of the plaintiff and a third party without satisfaction.
We did not agree with the Decision of the Judicial Board for Civil Cases of the Astana City Court dated June 2, 2023, and we consider it illegal due to the following circumstances:
The Judicial Board found that the plaintiff's land plots were seized for the needs of the state and purchased on the basis of a court decision that entered into force, monetary compensation was paid, and the plaintiff's ownership was terminated. However, the plaintiff does not dispute the fact of alienation (purchase) of the land plot. Yes, as of today, the plaintiff's ownership of the land has been terminated. We dispute the fact that the Akimat of Astana city began self-seizure of the site when the plaintiff's ownership had not yet been terminated.
The Judicial Board found 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 were found. However, we have provided an assessment report No. 87/06 dated 06/18/2020, which contains photographs confirming the presence of a metal fence, a construction trailer and parts of building materials. It should also be noted that the third person, Abylkasymov Yerasyl, and his son immediately called law enforcement agencies.
The judicial board also found that the plaintiff did not provide evidence that it was the akimat that demolished (destroyed, destroyed) the property located on the land, and this type of work does not fall within the competence of the akimat. However, during the trial, it became clear that the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" and the Limited Liability Company "PMK-7K" had concluded a contract for public procurement of works in the field of construction No. 2020/48 dated May 11, 2020. According to the contract, the work is carried out under the Project - Contract work "Construction of boulevards and squares along Mynzhyldyk Alley in Astana (first stage).
Dear Court, please note that according to Resolution No. 510-547 of March 11, 2020, the compulsory alienation of land plots should have been carried out from June 19, 2020 to June 19, 2021. However, the akimat ignored this resolution and the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" concluded an agreement with contractors on the same day when Resolution No. 510-547 was issued, i.e. March 11, 2020. According to art . 46 of the Law of the Republic of Kazakhstan "On Public Procurement" The public procurement contract comes into force after it is signed by the customer and the supplier.
The State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" confirms that, according to the request of the Customer, the State Institution "Management of Assets and Public Procurement of Astana" announced a pre-qualification competition on March 05, 2020. That is, the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" announces The competition is pending the issuance of Resolution No. 510-547 dated May 11, 2020 of the Akimat of Astana "On the compulsory alienation (purchase) of land for state needs."
Clause 3.7 of the Contract on Public Procurement of Works in the field of Construction No. 2020/48 stipulates that the Customer, after the entry into force of the Contract, makes an advance payment in accordance with Appendix No. 1 after the Contractor has secured the performance of the Contract, secured the advance and (or) the amount in accordance with Article 26 of the Law.
According to the supplementary agreement No. 1 to the agreement No. 2020/48 dated 05/11/2020. The Department made an advance payment in the amount of 570,000,000 tenge on 05/15/2020 and in the amount of 13,357,800 tenge on 06/26/2020 (a copy is attached).
According to clauses 29, 4.1 of the Contract on Public Procurement of Works in the field of Construction No. 2020/48, the contractor undertakes to submit to the Customer for approval a schedule of work within three days from the date of signing the Contract, which sets out the procedure and deadlines for the construction of the Facility. In case of a change in the duration of the completion period, the Contractor is obliged to submit a schedule of work within 3 (three) business days from the date of signing the relevant supplementary agreement. If we study the approved schedule of work, we can see that in May 2020, the following works began: General construction, Technological equipment, Vertical layout and Cable laying (trenches). This work schedule was signed on June 2, 2020. We would like to remind the Court that the deadline for alienation in Resolution No. 510-547 of the Astana City Akimat "On the compulsory Alienation (purchase) of land for public needs" dated March 11, 2020 was set from June 19, 2020.
Thus, the arguments of the Judicial Board that the plaintiff did not provide evidence that it was the akimat that demolished (destroyed, destroyed) the property located on the land plot are illegal, since according to the above materials it can be established that the akimat concluded, infringing on the Constitutional rights of the Plaintiff, an Agreement on public procurement of works in the field of construction No. 2020/48 with the Partnership limited liability Company "PMK-7K".
We believe that the Appeals Board, when considering the case, did not create the necessary conditions to protect the rights and interests of the Plaintiff, did not provide a full and objective investigation of the circumstances of the case, violated the principle of competition and equality of the parties.
In accordance with Article 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. According to paragraph 2, Article 922 of the Civil Code of the Republic of Kazakhstan, local governments are responsible for the harm caused by their bodies and officials in court.
According to Article 434 of the CPC RK, which stipulates that judicial acts of local and other courts that have entered into force may be reviewed in cassation by the Supreme Court of the Republic of Kazakhstan in the event of compliance with the appellate procedure for their appeal, judicial acts rendered in cases considered under the rules of Article 28-1 of this Code.
On August 15, 2023, we filed a petition to the Supreme Court of the Republic of Kazakhstan for a cassation review of judicial acts. On August 25, 2023, the Supreme Court of the Republic of Kazakhstan returned our petition by letter No. 6001-23-3g-5/7707 in accordance with Part 1 of Article 442 of the CPC. The reason for the refund is the following: The petition does not provide complete information about all the persons involved in the case, indicating their place of residence or location, which is required by virtue of Article 441 of the CPC.
On September 1, 2023, the text of the petition for cassation review of judicial acts, corrected in accordance with art. 441 of the CPC, was again submitted to the Supreme Court of the Republic of Kazakhstan. On September 11, 2023, the Supreme Court of the Republic of Kazakhstan, by response No. 6001-23-3g-5/8174, returns the petition submitted by us for the cassation review of judicial acts. The reason for the return was the following: Earlier, by letter No. 6001-23-3g-5/7872, a similar request was returned due to non-compliance with the requirements of Article 441 (hereinafter referred to as the CPC). Part 3 of Article 441 of the CPC stipulates that if the petition was previously filed with the court of cassation and was returned, the petition must indicate the reasons for the return. To date, the petition contains complete information about all the persons involved in the case, indicating their place of residence or location, and the reasons for the return of the petition.
Based on the above, as well as paragraphs 1, paragraph 1, art. 444 of the CPC RK and paragraphs 8, paragraph 2, art. 451 of the CPC RK,
I ASK THE COURT:
To submit the petition with the case for consideration at the court session of the cassation instance of the Supreme Court of the Republic of Kazakhstan;
To cancel the Decision of the Saryarkinsky District Court of Astana dated February 22, 2023 and the Decision of the Judicial Board for Civil Cases of the Astana City Court dated June 2, 2023;
To issue a new judicial act on the satisfaction of the plaintiff's claim in full.
With respect,
Lawyer: ___________/ Sarzhanov G.T.
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