The quorum of the meeting of the Commission on Land disputes
According to paragraph 2 of Article 43 of the Land Code, the number of members of the land commission must be odd and amount to at least nine people.
At the same time, the number of representatives of public councils, non-governmental organizations in the field of the agro-industrial complex and other sectoral non-governmental organizations, the National Chamber of Entrepreneurs of the Republic of Kazakhstan, as well as local governments should be at least fifty percent of the total number of members of the land commission.
The permanent composition of the land commission and two representatives of the administrative-territorial unit in which the land plot is located are required to participate in the voting.
A meeting of the land commission is considered competent if it was attended by at least two thirds of the total number of its staff.
Judicial practice in certain categories of disputes
An analysis of judicial practice has shown that claims in the following categories are most widespread:
- disputes over the legality of granting the right of private ownership and temporary land use to land plots;
- disputes related to the refusal of the Akimat to extend the lease agreement with the land user;
- disputes over changes in the purpose of land plots.
Compliance with the deadline for filing a claim in court
Basically, the plaintiffs filed lawsuits challenging the decisions of the local executive body on granting the relevant right to land plots.
In accordance with the first part of Article 136 of the CPC, claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review.
If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
A person who has not participated in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit with the court within one month from the day when the person learned or could have learned about the adoption of the administrative act, but not later than one year from the date of its adoption (part 5 of Article 136 of the CPC).
The analysis showed that local courts most often make mistakes in the procedural law related to the restoration of the specified pre-trial period.
For example, by the decision of the SMAS of the North Kazakhstan region dated February 10, 2022, Amrin's claim to the akimat of Akzhar district was satisfied. The resolution of July 23, 2009 on granting the right to a land plot to Akzhar-Nan LLP was canceled.
By the decision of the Court of the Institute of Appeal dated May 19, 2022, the court's decision remained unchanged.
The courts established that by a decree of the Akimat dated September 8, 2003, the plaintiff was granted the right to temporary shared land use for a period of 49 years for farming a land plot.
The local courts proceeded from the fact that the right to the land plot was granted to the Partnership without the consent of the plaintiff, and therefore the establishment was declared illegal.
By the decision of the SCAD of the Supreme Court of December 22, 2022, judicial acts of local courts were canceled, since the courts of first and appellate instances, when resolving the dispute on the merits, did not take into account that the plaintiff was not a participant in the administrative procedure. The disputed resolution transferred the right of land use to the Partnership.
The decision was issued on July 23, 2009, and the deadline for filing a claim to challenge it for a person who did not participate in the administrative procedure for its adoption, including Amrin, expired on July 23, 2010 (No. 6001-22-00-6ap/1467).
The local courts, in violation of the above-mentioned provisions of the procedural law, restored to the plaintiff the time limit, which is suppressive, and considered the merits of the claim to be refunded.
The courts should keep in mind that the norm of part 5 of Article 136 of the CPC is mandatory and the one-year period provided for by it is suppressive and cannot be restored.
In accordance with part 8 of Article 136 of the CPC, the inability to restore the expired time limit for going to court is the basis for returning the claim. For the same reasons, the Court of cassation annulled the judicial acts of the SMAS of the Pavlodar region dated October 5, 2021 and the SCAD dated March 10, 2022, issued in the lawsuit of the Altyndos Agricultural Company against the akim of the Zangar rural district of the Pavlodar region of the Pavlodar region on recognition as illegal and cancellation of the decision on granting land use rights.
The claim has been returned (No. 6001-22-00 6ap/1017). The courts, resolving the dispute on the merits, did not take into account and did not give a proper legal assessment to the fact that the procedures for granting land use rights to the disputed land plot of the Urazbaev Farm took place in 2006-2008. The administrative claim was filed on August 6, 2021. At the same time, the plaintiff KH "Altyndos" was not a participant in these procedures. Similar violations occurred in all regions of the republic. There are cases of significant violations of the procedural law when the time limits for filing a claim are restored, when the plaintiffs, being participants in the administrative procedure, challenge administrative acts issued long before the introduction of the APPC.
The grounds for reinstating a missed deadline should be exceptional, and the courts should not facilitate the abuse of law by plaintiffs who knew or could have known about the violation of their rights.
The courts of appeal should take into account that if the court of first instance accepts a claim and considers it on its merits with a decision, from the stage of appeal, taking into account the provisions of Article 126 of the CPC, it can be returned only after the suspension period has been passed.
In other cases, the case is considered by the appellate instance on the merits. However, if the time limit is restored by the court in the absence of sufficient grounds, the protection of the violated right may be denied upon the fact of abuse of the right.
Jurisdiction of disputes
For example, the SMAS of the Turkestan region received administrative lawsuits from the Turkestan Region Land Inspection Department challenging the decisions of the Akim of the city, district, and aul (rural) district, meaning a dispute arose between government agencies.
The Judicial Board of the cassation instance clarified on the issue that has arisen that if the parties to the cases are two state bodies that are equivalent in status (they belong to organizations of state power that carry out on behalf of the state on the basis of the Constitution of the Republic of Kazakhstan, laws and other regulatory legal acts of the Republic of Kazakhstan on the management and regulation of socially significant public relations, control for compliance with the generally binding rules of conduct established by the state), and argue among themselves in the interests of the state, and not in the interests of individuals (legal entities) or an indefinite circle of persons, in this case such claims will not be considered in administrative proceedings.
There are also questions about the claims of the MIO to the authorized land management bodies to challenge the regulations submitted to them.
Taking into account that the order of the authorized body on the elimination of violations of the requirements of land legislation is an administrative act and, by virtue of paragraph 3 of Article 146 of the Land Code, is mandatory, the subjects of verification have the right to appeal it in the order of administrative proceedings.
For example: an order addressed to the akim of the district on the cancellation of the resolution on the provision of a land plot and bringing the guilty officials to justice is subject to challenge by the akim of the specified territorial unit.
At the same time, the claims of individuals and legal entities whose interests are indirectly affected by this regulation are subject to refund, since the appealed administrative act was issued against another entity.
For example: according to the claim of NauryzbayDamu LLP to the Department of Land Management of the Akmola region on the recognition of illegal actions to conduct an inspection, recognition as illegal and cancellation of regulations on the elimination of violations No. 95, 96 and 97 dated July 1, 2022 (No. 6001-22-00 6ap/2593).
Jurisdiction
When considering cases on disputes arising from land relations, compliance with the rules of jurisdiction, the filing of a claim by persons who have the right to claim, and the correct definition of the subject of the claim are of particular importance for resolving cases.
Jurisdiction is determined according to the rules of Articles 102 and 106 of the CPC.
At the request of the plaintiff, cases assigned to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the plaintiff's place of residence, with the exception of cases brought by specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
The analysis showed that most of the applications submitted to the courts were accepted in compliance with the rules of jurisdiction and did not cause certain difficulties for the courts.
State duty
The procedure for paying the state duty is regulated by the norms of the CPC and the Tax Code.
The state duty is paid in the amount established by subitems 2, 3 of paragraph 1 of Article 610 of the Tax Code, which is 0.3 monthly calculation index for individuals, 5 monthly calculation index for legal entities.
The issue of reimbursement of court costs is resolved in accordance with the requirements of Article 122 of the CPC and Articles 109, 115, 117 of the CPC.
In accordance with Article 102 of the CPC, court costs consist of state fees and costs related to the proceedings.
By virtue of the second part of Article 122 of the CPC, when returning a claim on the grounds provided for in paragraphs 5), 6), 12), 13), 14) and 15) of the second part of Article 138 of this Code, court costs are not reimbursed.
In accordance with the second part of Article 142 of the CPC, if the plaintiff's application for the withdrawal of the claim is received in full at a court hearing or a preliminary hearing, the court explains the consequences of the withdrawal of the claim.
In other cases, the judge returns the claim without calling the participants in the administrative process with a refund of the state fee.
For example, the definition of the SMAS of the Akmola region dated March 14, 2022 returned Teremkova's claim to the akim of the city of Kokshetau for coercion to make a favorable act under subparagraph 6) of the second part of Article 138 of the CPC in connection with the withdrawal.
The state fee paid at the time of filing the claim was non-refundable, but in violation of the requirements of Article 122 of the CPC, it was refunded.
Such violations are not systemic in nature, in general, there were no problematic issues regarding court costs in the republic.
Legislation
The norms of substantive law, which were guided by the courts in resolving disputes of the generalized category, include the legislative acts currently in force.
The main regulatory legal acts regulating issues in the fields of the generalized category are:
The Constitution of the Republic of Kazakhstan;
Civil Code of the Republic of Kazakhstan dated December 27, 1994 No. 268-XIII (hereinafter referred to as the Civil Code);
The Land Code of the Republic of Kazakhstan dated June 20, 2003 No. 442 (hereinafter - CC);
4) Administrative Procedural and Procedural Code No. 350 VI dated June 29, 2020 (hereinafter referred to as the APPC);
5) The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V SAM (hereinafter – CPC);
6) Business Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V;
7) Budget Code of the Republic of Kazakhstan dated December 4, 2008 No. 95-IV;
8) Environmental Code of the Republic of Kazakhstan dated January 2, 2021 No. 400-VI;
9) The Law of the Republic of Kazakhstan "On Legal acts" dated April 6, 2016 No. 480-V;
10) The Law of the Republic of Kazakhstan "On State Property" dated March 1, 2011 No. 413-IV;
11) The Law of the Republic of Kazakhstan "On Local Public Administration and Self-government in the Republic of Kazakhstan";
12) 16) Regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial decision" dated October 2, 2003 No. 5;
13) Rules for maintaining the State land cadastre in the Republic of Kazakhstan, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated December 23, 2014 No. 160;
14) Rules for the implementation of land management works for the development of a land management project, approved by Order No. 379 of the Minister of National Economy of the Republic of Kazakhstan dated May 6, 2015;
15) Rules for the provision of public services in the field of land relations, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020 No. 301.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
According to articles 10 and 12 of the Law "On Legal Acts", codes have greater legal force than laws; if there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply.
As a general rule, provided for in Article 4 of the Civil Code, Article 43 of the Law "On Legal Acts", regulatory legal acts apply to relations that have arisen after their entry into force.
Abbreviations used
SMAS - Specialized Interdistrict Administrative Court
SCAD - Judicial Board for Administrative Cases
MIO - Local executive bodies
AVF - Audio and video recording
RAP - Detailed planning project
SN RK - Building regulations of the Republic of Kazakhstan
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