The return of lawsuits due to the lack of public relations, since the defendant did not issue administrative acts against the plaintiffs.
By the definition of SMAS Astana city, dated December 22, 2022, left unchanged by the ruling of the Astana City SCAD Court dated January 24, 2023, A.K.'s claim to the Russian State University for recognition of Order No. 138 dated April 16, 2022 "On Housing Privatization" in part of the apartment of E.Sh. illegal, returned on the grounds of lack of jurisdiction.
It is established that E.S. is serving in the Russian State University. In 2017, he was provided with an office apartment. On September 7, 2021, the marriage between E.S. and A.K. was registered.
By the decision of the Housing Commission dated April 15, 2022, E.S. was allowed to privatize the apartment free of charge.
By Order No. 138 of April 16, 2022, the apartment was excluded from the number of office apartments and included in the list of those equated to office apartments with the right of gratuitous privatization for a family of 1 person. On June 20, 2022, an apartment privatization agreement was signed.
The plaintiffs, believing that the apartment should become the common joint property of all family members, challenged the order, which stated that the dwelling was subject to privatization by only one E.S.
The procedure for privatization is regulated by Rules No. 673, according to which the disputed order changed the status of the apartment: the apartment was transferred from republican ownership to communal ownership. Consequently, the contested order does not affect the interests of the plaintiffs. The consequences for the plaintiffs, as indicated by the court of first instance, entail an apartment privatization agreement.
By the resolution of the SCAD of the Supreme Court of September 26, 2023, the judicial acts of the local courts were upheld.
Another example of a return due to lack of jurisdiction due to alleged actions by the plaintiffs within the framework of contractual relations.
For reference: The case of L.'s claim against GU-1, GU-2 for coercion to recalculate the residual value of the dwelling from the housing stock.
By the SMAS decision No.2 of Pavlodar region dated March 6, 2023, the claim was denied.
By the decision of the SCAD of the Pavlodar Regional Court dated June 21, 2023, the decision of the court of first instance was canceled, L.'s claim was returned as not subject to consideration in administrative proceedings.
By the decision of the SCAD of the Supreme Court of February 28, 2024, the decision of the appellate instance was upheld due to the following (No. 6001-23-00-6ap/2590).
It is established that the act of the state acceptance commission on the acceptance of the constructed facility into operation dated 28.10.2013 carried out the reconstruction and conversion of real estate for an apartment building.
By the decree of the Akimat, the residential building was put into operation after reconstruction and transferred to operational management on the balance of GU-2.
On 29.11.2013, on the basis of the lease agreement, the plaintiff was provided with a two-room apartment.
According to the GU-1 certificate, the amount of accumulated depreciation of the apartment amounted to 362,823.62 tenge, the residual value was 3,155,470.08 tenge.
The plaintiff, disagreeing with the indicated residual value of the apartment, appealed to the Ekibastuz city Court with a claim for declaring illegal the calculation of the residual value.
By the decision of the Ekibastuz City Court of July 8, 2021, L.'s claim was satisfied. By the decision of the SCAD of the Pavlodar Regional Court, the aforementioned decision was overturned, and a new decision was made to dismiss the claim.
By the resolution of the SCAD of the Supreme Court of November 22, 2021, the transfer of the petition of the plaintiff's representative for the revision of the above judicial acts was refused.
In 2022, the plaintiff repeatedly appealed to the akimat with a request to recalculate the residual value of the apartment based on the report of an independent appraiser dated 03/10/2022, according to which the residual value of the apartment amounted to 1,178,568 tenge.
The MIO refused to recalculate the residual value of the apartment, which served as the basis for the plaintiff's appeal to the court in administrative proceedings.
The Court of Appeal, returning the claim, reasonably assumed that in order to recognize the action as administrative, it is necessary to have a public law relationship. At the same time, an administrative act or action (inaction) must be a unilateral decision of authority or an action of an administrative body that is secured by state coercion, that is, mandatory for execution under threat of liability for non-fulfillment.
The SCAD of the Supreme Court agreed with the conclusions of the court of appeal that in the case under consideration, the actions contested by the plaintiff were carried out by the defendants within the framework of contractual relations. They cannot be considered administrative, and the dispute does not arise from public law relations. Consequently, the claims submitted by the plaintiff cannot be considered in administrative proceedings. The Board noted that the plaintiff had exercised the right to challenge the defendants' actions to determine the residual value of the apartment in a civil procedure, which precludes the possibility of reviewing judicial acts in accordance with the CPC, regardless of the formulation of requirements.
Conciliation procedures
The APPC provides for the possibility of conducting conciliation procedures for disputes arising from public law relations, however, reconciliation of the parties is allowed if the defendant has administrative discretion. This provision of the legislation is justified due to the fact that the elimination of violations of the rights of a citizen or a legal entity is possible by canceling the appealed act or terminating any action by the state body or official himself.
The parties may, on the basis of mutual concessions, completely or partially end the administrative case by concluding an agreement on reconciliation, mediation or dispute settlement in a participatory procedure at all stages (stages) of the administrative process until the court is removed for adjudication.
The adoption by the court of measures to reconcile the parties and assist them in settling the dispute at all stages of the process follows from the tasks of administrative proceedings. Taking a neutral position regarding the claims of the parties, 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 of the principles of the APPC (the active role of the court, fairness, proportionality), measures of procedural coercion (monetary penalties) and conciliation procedures in the framework of administrative proceedings significantly improved the quality of consideration of cases in the analyzed category.
Thus, the implementation of the principle of an active role contributes to the resolution of the dispute by the court or the withdrawal of the claim due to the peaceful settlement of the dispute or clarification of the prospects for the consideration of the case. For example, the defendant himself cancels the disputed act or performs actions that eliminate the existence of a dispute.
Jurisdiction
When considering cases on disputes arising from housing legal 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 dispute resolution.
Jurisdiction is determined according to the rules of Articles 102, 103 and 106 of the CPC. At the request of the plaintiff, cases referred 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 under the jurisdiction of specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
By virtue of article 103 of the CPC, military courts consider administrative cases involving claims by military personnel of the Armed Forces of the Republic of Kazakhstan, other troops and military formations, and citizens undergoing military training, if the defendant is a military command or military unit, with the exception of cases under the jurisdiction of other specialized courts.
If a military court has not been established on the territory of the relevant administrative-territorial unit, administrative cases referred to its jurisdiction are considered by specialized district and equivalent administrative courts in accordance with the procedure established by this Code.
The analysis showed that most of the claims submitted to the courts were accepted in compliance with the rules of jurisdiction and did not cause any difficulties for the courts.
At the same time, if there is a military court in the region, questions arise about the correct determination of the jurisdiction of cases on claims for the appointment of EHRs.
Thus, the TJV is assigned to active military personnel and the jurisdiction of disputes over them is attributed to the competence of military courts. Whereas EHRs are appointed upon the dismissal of a serviceman and in connection with the loss of the status of one of the parties to the dispute, special jurisdiction no longer applies.
Based on the stated practice of the courts, we note that the correct definition of jurisdiction is important due to the constitutional norm and its observance in administrative cases must be ensured in accordance with articles 102, 103 of the CPC.
Procedure of the case proceedings
According to the provisions of Articles 146, 148 of the CPC, an administrative case is considered and resolved within a reasonable time, but not more than three months from the date of filing a claim.
The trial is conducted according to the rules of the CPC, with the exception of the specifics established by Article 147 of the CPC. The court, with the consent of the parties, has the right to consider the administrative case in written proceedings within a reasonable time, but not more than three months from the date of filing the claim.
After the registration of the claim, at the stage of the preliminary hearing and trial, the court, as part of the active role of the court, provides assistance in shaping the correct legal position of the plaintiffs.
Basically, the cases of this category were considered by the courts of the republic in compliance with the above requirements.
The circle of persons involved in the case
According to article 26 of the CPC, the participants in the administrative process are the plaintiff, the defendant, the person concerned and the prosecutor.
At the same time, in housing disputes, by virtue of the provisions of article 31 of the CPC, the prosecutor, as a rule, does not participate.
Evidence and proof
Despite the fact that, by virtue of article 129 of the CPC, the burden of proof for contesting claims lies with the administrative body, the body/housing commission has only the data that is in the information exchange systems between government agencies. M&E, when making decisions, as a rule, does not require additional documents from waiting lists.
At the same time, the nature of evidence in housing disputes requires the provision of evidence, information about which is protected by law or can only be provided by the plaintiff due to its content (mortgage agreements, certificates from banks, certificates from work, studies, service records) or are personal (about the composition of the family).
Thus, as evidence: a) for claims challenging the decisions of the housing commission of the Ministry of Regional Development on exclusion from the waiting list, the plaintiffs may submit - documents on assignment to the waiting list category (service records from personnel management departments, certificates from the place of work of civil servants, disability certificates, birth certificates for all children, marriage divorce certificates, certificates of registered property rights for all family members, etc.), as evidence of residence (non-departure), the plaintiffs provide certificates from the place of study, from the place of work, witness statements, reports (characteristics) of district police inspectors.
Deadlines for filing a claim (the practice of restoring deadlines)
The time limits for filing a claim are provided for in Chapter 20 of the APPC, in particular, they are regulated by Article 136 of the APPC.
As a general rule, the deadline for filing a claim that has been missed for a valid reason can be restored by the court according to the rules of the CPC. The reasons for missing the deadline for filing a claim in court and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
Missing the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
At the same time, it should be borne in mind that, by virtue of part five of Article 136 of the CPC, a person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of the administrative act, but no later than one month. one year from the date of its adoption.
Application of procedural coercion measures
In the event of a violation of the norms of procedural legislation, when considering a case, procedural coercion measures are applied in accordance with Chapter 18 of the CPC.
In accordance with article 127 of the CPC, the court has the right to impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including in cases of presenting evidence, executing orders in violation of the time limit set by the court without valid reasons, if this led to a delay in the consideration of an administrative case, for each action (inaction) in the amount of ten monthly calculation indices.
For failure to comply with a requirement or a court request, failure to appear in court of a person participating in an administrative case, late notification of the court, late submission of a review, disobedience to the orders of the presiding judge, violation of the rules established in court, as well as other actions (inaction) clearly indicating disrespect for the court and (or) the judge, the court has the right to impose a monetary penalty in the amount of twenty monthly calculation indices.
For failure to comply with a court decision, a court ruling approving an agreement between the parties on reconciliation, mediation, or dispute settlement through a participatory procedure, the court imposes a monetary penalty on the defendant in the amount of fifty monthly calculation indices, indicating in the same judicial act a period not exceeding one month during which it is to be enforced.
During the analyzed period, the courts have developed the practice of applying a measure of procedural coercion in the form of imposing a monetary penalty.
In this category of disputes, monetary penalties are most often imposed on the defendants for the following reasons:
late provision of feedback;
incomplete or incomplete provision of administrative case materials;
failure to appear (or fail to connect online) at a court hearing without a valid reason.
Abbreviations used:
APPC – Administrative Procedural Code of the Republic of Kazakhstan
CPC – Civil Procedure Code of the Republic of Kazakhstan
Civil Code of the Republic of Kazakhstan
NP VS – Normative Resolution of the Supreme Court of the Republic of Kazakhstan
IS – information system
SCAD VS – Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan
SCAD or collegium – judicial collegium for administrative cases
SMAS – specialized interdistrict Administrative Court
Ministry of Internal Affairs – Ministry of Internal Affairs of the Republic of Kazakhstan
Ministry of Defense – Ministry of Defense of the Republic of Kazakhstan
KNB – National Security Committee of the Republic of Kazakhstan
GP – General Prosecutor's Office of the Republic of Kazakhstan
Emergency Department – Department of Emergency Situations
CDF – Special government agencies
DP – Police Department
TJV - current housing payments
EZHV - one-time housing payments
GZHF - state housing fund
MIO – local executive bodies
The main regulatory legal acts regulating housing disputes are:
· The Constitution of the Republic of Kazakhstan;
· APPC;
· GC;
· GPC;
· The Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter – the Law on Housing Relations);
· The Law of the Republic of Kazakhstan "On State Property" (hereinafter – the Law on State Property);
· The Law of the Republic of Kazakhstan "On Military Service and the status of military personnel" (hereinafter - the Law on Military Service);
· The Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter – the Law on Law Enforcement Agencies);
· The Law of the Republic of Kazakhstan "On Legal Acts" (hereinafter - the Law on Legal Acts);
· NP VS "On judicial practice of applying legislation on the privatization of residential premises from the State housing stock by citizens" dated July 18, 1997 No. 9;
as well as subordinate regulatory legal acts:
· Rules for providing service housing for military personnel, calculating the size, assignment, recalculation, Implementation, Termination, suspension and resumption of housing payments, approved by Resolution of the Government of the Republic of Kazakhstan No. 49 dated February 12, 2018 (hereinafter referred to as Rules No. 49);
· Rules for Monetary compensation, approved by Resolution of the Government of the Republic of Kazakhstan No. 50 dated February 12, 2018 (hereinafter referred to as Rules No. 50);
· Rules for providing official housing for employees of internal affairs bodies, calculating the amount, appointment, recalculation, implementation, termination, suspension and resumption of housing payments, as well as categories of positions of employees of internal affairs bodies eligible to receive housing payments, approved by Resolution of the Government of the Republic of Kazakhstan dated August 5, 2021 No. 524 (hereinafter referred to as Rules No. 524);
· Rules for the privatization of public housing stock approved by Resolution of the Government of the Republic of Kazakhstan dated July 2, 2013 No. 673 (hereinafter referred to as Rules No. 673);
· The rules for the provision of public services "Registration and priority, as well as the adoption by local executive bodies of a decision on the provision of housing to citizens in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock", approved by the order of the Acting Minister of Industry and Infrastructural Development of the Republic of Kazakhstan dated August 13, 2021. No. 441;
· Rules for the transfer of state property assigned to state-owned legal entities from one type of state property to another, approved by Order No. 85 of the Minister of National Economy of the Republic of Kazakhstan dated May 26, 2023;
· The rules for registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock, 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 other than those provided for by the Law on Housing Relations, 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.
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