Claims of military personnel related to compensation for the right to privatization of housing 

There is an increase in the number of lawsuits, the reason is the increase in appeals to the court by applicants (socially vulnerable segments of the population, civil servants and employees of budgetary organizations) with demands to reinstate in the queue for housing, to cancel the decision to refuse to legalize a lease agreement, as well as military personnel and employees of law enforcement agencies, civil defense agencies who have obligations on mortgage loans, to challenge the refusal of housing commissions to make housing payments.

The latter is due to the introduction of amendments to the legislation that improves the situation of this category of persons, in terms of the use of housing payments to repay previously received mortgage loans.

This increase indicates the increased activity of citizens in using the provisions of the CAPP to protect violated rights.

In the Zhetisu region, the plaintiffs challenge the actions of the State Institution "Department of Housing Relations of Taldykorgan" of the Akimat of Taldykorgan. This situation is caused by the exclusion from the queue for housing from the State Housing Fund and the failure to provide decisions of the housing commission for the right to live in previously provided apartments in the periods from 2009 to 2020.

The courts establish illegal actions to remove from the register on various grounds, not to bring the issue of providing apartments when they are issued to the housing commission.

Whereas to this day, the plaintiffs as part of the family live in these apartments, bear the burden of housing maintenance, and pay for utilities.

To promptly resolve this issue, local courts have repeatedly held meetings with the participation of the city akim, his deputies, representatives of the regional akimat, the head of the Housing Inspection Department, the deputy prosecutor of the region and representatives of the city prosecutor's office, the DKNB and the Anti-Corruption Service of the region.

The procedure for making monetary compensation is regulated by paragraph 4 of Article 101-2 of the Law, paragraphs 6, 7 of Article 55 of the Law on Military Service and Rules No50. Based on subparagraph 1) of paragraph 2 of Rules No50, monetary compensation is a lump-sum housing payment made in lieu of the right to gratuitous privatization in cases of residence in a service housing that is not subject to privatization in cases provided for by paragraph 4 of Article 101-2 of the Law and paragraphs 6, 7 of Article 55 of the Law on Military Service.

Thus, an interesting example is when, taking into account the literal interpretation of the above provisions of the law, the defendant lawfully and reasonably refused to pay the plaintiff the monetary compensation requested by him.

For reference: On the administrative case on the claim of M. to the Russian State University to recognize as illegal the protocol decision of the housing commission and the response on the refusal to pay monetary compensation instead of the right of gratuitous privatization, on the recognition of the admakt on the refusal to pay monetary compensation instead of the right of gratuitous privatization as illegal, on the imposition of the obligation to eliminate the violation of the law, to accrue and pay monetary compensation instead of the right to gratuitous privatization.

By the decision of the SIAC, the claim was partially satisfied: the protocol decision of the housing commission and the administrative decision on the refusal to pay monetary compensation in exchange for the right of gratuitous privatization of the defendant were declared illegal; The defendant is obliged to eliminate the violations of the law.

 The claim in terms of recognizing the defendant's response to refuse to pay monetary compensation as illegal was dismissed.

SCAD of January 26, 2023 upheld the decision of the SIAS of September 20, 2022 (No 6001-23-00-6ap/739).

By the resolution of the SCAD of the Supreme Court, the judicial acts of local courts were changed.

The decision in the part of the refusal to satisfy the claim to recognize as illegal the defendant's response on the refusal to pay monetary compensation in exchange for the right of gratuitous privatization was canceled, the claim in this part was returned as not subject to consideration in the administrative proceedings.

It was established that the plaintiff, being a serviceman, has been performing military service since May 2002, during this period he did not receive the disputed monetary compensation, did not use the right to privatize housing, and was recognized as in need of housing since 2004.

He and his family members do not have housing, they live in a service apartment located in a closed town, due to which they are not subject to privatization.

Upon dismissal from military service, the plaintiff's wife received an ERV under paragraph 5 of Article 101-2 of the Law in the amount of 7,185,000 tenge by order of the commander of the military unit.

By the contested decision of the housing commission, he was denied payment of monetary compensation, since his wife received the above-mentioned housing payments upon dismissal from military service.

By a letter dated 17.06.2022, which is also disputed by the plaintiff, he was informed of the decision of the housing commission. On 14.07.2022, the defendant, at the request of M., adopted an administrative act by which the plaintiff was denied payment of monetary compensation on the same grounds as those specified by the housing commission.

In resolving this case, paragraph 5 of Article 101-2 of the Law was not applicable, according to which the relevant housing payments are made without taking into account the spouses of servicemen, as well as their children, if the right to housing was exercised by servicemen before marriage, whereas in the case under consideration this provision is devoted to the EWC, and not to the monetary compensation claimed by the plaintiff. In addition, the plaintiff and his wife have been married since 2006, that is, they exercise the right to housing payments after marriage.

Clause 4 of Rules No50 was not applicable, since its purpose is the procedure for payment of monetary compensation and the calculation of its amount, while the subject of the dispute is the plaintiff's right to this compensation, and not its amount.

The courts found that the plaintiff's wife, upon dismissal from military service, received the UJV on the basis of the above norm.

The literal meaning of sub-paragraph 3) of paragraph three of paragraph 4 of Article 101-2 of the Law restricts the payment of monetary compensation to the plaintiff, since his wife received the EJV. The judicial panel does not see any other interpretation of this imperative requirement.

In accordance with subparagraph 3) of Article 101-7 of the Law, the recipient of housing payments (the plaintiff's spouse) is obliged to direct them to the purposes provided for in Article 101-5 of this Law.

 If both spouses are members of the armed forces, housing payments are made to one of the spouses at their choice, as established by paragraph 2 of Article 101-3 of the Law.

Paragraph 12 of Article 101-2 of the Law establishes that the right of military personnel to acquire ownership of housing through the use of housing payments is exercised once.

Military personnel are denied recognition as needing housing if they or their spouses have received housing payments provided for in part one of paragraph 5 of Article 101-2 of the Law (subparagraph 2) of paragraph 3 of Article 101-3 of the Law on Housing).

A systematic analysis of the above provisions of the Law, in the opinion of the judicial panel, indicates that the plaintiff and his spouse are given the law to use the following at their joint choice:

or the right to a lump-sum housing payment upon dismissal from military service (which was exercised by the plaintiff's wife);

or the right to monetary compensation instead of the right to gratuitous privatization of housing from the State Housing Fund.

The judicial panel agreed that the defendant's response contested by the plaintiff was not an administrative act, since the payment of monetary compensation to him was refused by the decision of the housing commission and the defendant's administration.

However, in this case, the claim in this part should have been returned on the basis of subparagraph 11) of part two of Article 138 of the APC.

Thus, the judicial panel came to the conclusion that the courts of previous instances clarified and set out in detail the circumstances of the case to the extent sufficient for its resolution, but allowed the incorrect application of the norms of substantive and procedural law, such as:

misinterpreted the law, applied the provisions of regulatory legal acts that are not subject to application and, on the contrary, did not apply the applicable provisions of the Law. 

Procedure for Proceedings in the Case

In accordance with the provisions of Articles 146 and 148 of the Code of Administrative Procedure, 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 carried out according to the rules of the Civil Procedure Code, with the exception of the features established by Article 147 of the APC.

The court, with the consent of the parties, has the right to consider an administrative case in a written 13th hearing within a reasonable time, but not more than three months from the date of filing the claim.

After the registration of the claim, the court, at the stage of preliminary hearing and trial, within the framework of the active role of the court, provides assistance in the formation of the correct legal position of the plaintiffs.

In general, the courts of the republic considered cases of this category in compliance with the above requirements.

At the same time, the analysis revealed a gross violation of the procedural law in the consideration of disputes of this category in the following case.

For reference: E. filed a lawsuit against the Russian State University (No 2794-22-00-4/654). By the decision of the SIAC WKO dated November 7, 2022, the claim was satisfied, the defendant was obliged to adopt a favorable act on the report dated August 4, 2022.

By the resolution of the SCAD WKO dated January 31, 2023, the decision of the court of first instance was left unchanged.

By the resolution of the SCAD of the Supreme Court dated November 2, 2023, the decision of the SCAD WKO was canceled, the case was sent to the NSR in the regional court in a different composition of the court.

It was established that in the court of appeal the said case concerning housing payments was considered by the judge of the regional court in written proceedings alone, i.e. in an illegal composition, which was the basis for canceling the decision with sending the case for a new trial in a different composition of judges, without discussing the correctness of the judicial acts adopted by local courts.

The judge of the appellate instance did not take into account the requirements of Part 4 of Article 24 of the APC, by virtue of which administrative cases in the court of appeal are considered by a collegial composition in an odd number (at least three) of judges, one of whom is the presiding judge.

A single judge considers private complaints against rulings made by the courts. Thus, the procedure for consideration of administrative cases at the stage of the appellate instance, including in terms of the composition of the court, is regulated by the APC, which excludes the sole consideration of appeals against decisions of the courts of first instance. 

Jurisdiction

           When considering cases on disputes arising from housing legal relations, compliance with the rules of jurisdiction, the filing of a claim by persons having the right of claim, and the correct determination of the subject of the claim are of particular importance for the resolution of disputes.

Jurisdiction is determined according to the rules of Articles 102, 103 and 106 of the APC. 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 place of residence of the plaintiff, with the exception of cases under the jurisdiction of specialized district and equivalent administrative courts located within the boundaries of cities of republican significance and the capital, regional centers.

By virtue of Article 103 of the Code of Administrative Procedure, military courts hear administrative cases on the claims of servicemen of the Armed Forces of the Republic of Kazakhstan, other troops and military formations, citizens undergoing military training, if the defendant is a military administration body, a military unit, with the exception of cases under the jurisdiction of other specialized courts.

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

           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 the JU.

Thus, TGVs are appointed to active military personnel and the jurisdiction of disputes on them is attributed to the competence of military courts. While ERVs are appointed upon 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 determination of jurisdiction is important by virtue of the constitutional norm and its observance in administrative cases must be ensured in accordance with Articles 102, 103 of the APC. 

Circle of persons participating in the case

According to Article 26 of the APC, the parties to the administrative process are the plaintiff, the defendant, the interested person and the prosecutor.

At the same time, in housing disputes, by virtue of the provisions of Article 31 of the APC, the prosecutor, as a rule, does not participate. The circle of persons participating in the case is determined by the plaintiff when filing a claim with the court. Persons who have the right to file a claim with the court are specified in Articles 67 - 68 of the Law.

In the preliminary hearing, the court shall find out the circle of persons whose rights, freedoms or legitimate interests may be affected by an administrative act, administrative action (inaction) and subsequently be involved as interested persons in accordance with Article 14 23 of the APC.

The analysis showed that in the claims of military personnel, law enforcement officers and civil defense officers related to the payment of TGV and EZV, the defendants are the relevant territorial administrative body, under which the housing commissions that made the decisions were created (military units, institutions of the Penal Correction System, DP, line departments, security services, etc.). If necessary, a higher state body (Committee, Ministry) is involved as an interested person.

 In the claims of citizens against the, the akim of the administrative-territorial unit and/or the housing and communal services department, the housing relations department are involved as a defendant.

In accordance with subparagraph 12) of paragraph 1 of Article 31 of the Law "On Local State Administration and Self-Government in the Republic of Kazakhstan", the district (city of regional significance) akimat in accordance with the legislation of the Republic of Kazakhstan organizes the construction of housing of the communal housing stock and its distribution.

By virtue of paragraph 1 of Article 77 of the Law, a dwelling place from the communal housing stock or a dwelling place rented by a local executive body in a private housing stock shall be provided by decision of the local executive body at the place of residence of the applicant on the basis of a decision of the housing commission.

Housing commissions of LEBs, operating on a permanent basis, are created under LEBs.

The authorized body is the that provides housing.

It is necessary in each specific case to correctly determine the defendants, based on the subject and grounds of the plaintiff's claim, the defendant's objections and the applicable laws, legal status, and powers of authorized bodies.

When filing a claim against an improper defendant to the court in accordance with Articles 16, 116 of the APC, in order to avoid red tape in the consideration of the dispute, it is necessary to explain to the plaintiff the procedure for replacing an improper defendant with a proper one in accordance with Article 29 of the APC.

Based on the practice of local courts, it follows that there is no need to involve members of housing commissions as defendants.

The decision to satisfy the claim is executed by the administrative body, akim or the Department of Housing and Public Utilities, there are no difficulties and problematic issues with the execution of decisions that have entered into force. 

Conciliation procedures

           The CAPP provides for the possibility of conciliation procedures in disputes arising from public law relations, however, reconciliation of the parties is allowed if the defendant has administrative discretion.

Such a provision of the norms of legislation is justified due to the fact that the elimination of violations of the rights of a citizen, a legal entity is possible by canceling the appealed act, terminating any action by the state body or official himself.

           On the basis of mutual concessions, the parties may fully or partially terminate an administrative case by entering into an agreement on conciliation, mediation or settlement of the dispute in a participatory procedure at all stages (stages) of the administrative process until the court is removed to render a decision.

The court's adoption of measures to reconcile the parties and their assistance in resolving 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.

The analysis showed that the most common type of completed cases of the analyzed category in connection with reconciliation are cases in which the parties have entered into mediation agreements.

           In general, rulings on the approval of conciliation and mediation agreements are executed by the defendants voluntarily within the established time limits. There are isolated facts of the court imposing monetary penalties on defendants for failure to comply with a court ruling in accordance with Part 5 of Article 127 of the APC.

           A significant number of cases are cases in which the illegality of actions is established by the court or recognized by the defendant himself. The data indicate that the defendants misapplied the norms of housing legislation and violated the prohibition of abuse of formal requirements.

At the same time, the application of the principles of the APC (active role of the court, fairness, proportionality), measures of procedural coercion (monetary penalty) and conciliation procedures within the framework of administrative proceedings has significantly improved the quality of consideration of cases in this 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 settlement of the dispute amicably or clarification of the prospects for consideration of the case. For example, the defendant himself cancels the disputed act or performs actions due to which the existence of a dispute disappears. 

Return of claims.

Of those returned on other grounds, the largest number are refunds on the basis provided for:

- subparagraph 11) of part two of Article 138 of the APC - the case is not subject to consideration in administrative proceedings.

- subparagraph 15) of part two of Article 138 of the APC - the court refused to restore the missed deadline for filing a claim.

- subparagraph 12) of part two of Article 138 of the APC - there is a court decision or court ruling on the approval of the agreement that has entered into legal force, issued on a dispute between the same parties, on the same subject and on the same grounds.

Returning the claim, the courts concluded that there were no public law relations between the parties, the defendant did not issue administrative acts in relation to the plaintiffs. 

Evidence and proof

           Despite the fact that, by virtue of Article 129 of the CAPP, the burden of proof lies with the administrative body in claims for challenge, the body/housing commission has only the data that is in the information exchange systems between government agencies.

When making decisions, the, as a rule, does not require additional documents from those on the waiting list.

At the same time, the nature of proof in housing disputes requires the provision of evidence, information about which is protected by law or can only be submitted by the plaintiff by virtue of its content (mortgage agreements, bank certificates, certificates from the place of work, study, service records) or are of a personal nature (about the composition of the family).

Thus, as evidence: a) in claims to challenge the decisions of the housing commissions of the LEB on exclusion from the waiting list, the plaintiffs can submit - documents on the assignment to the category of waiting lists (service records from personnel management departments, certificates from the place of work of civil servants, certificates of disability, birth certificates for all children, divorce certificates, certificates of registered rights to property for all family members, etc.),  As evidence of residence (non-departure), the plaintiffs submit certificates from the place of study, from the place of work, witness testimonies, reports (characteristics) of district police inspectors.

The courts are forced to request the history of registration at the place of residence from the migration police, since the PSO SIO database contains only current data (there is no history with the dates of permanent/temporary registration/discharge in the PSO SIO), such data is not provided in personal accounts in Еgov web applications.

           Defendants - decisions on registration, decisions of the housing commission on removal from the waiting list, information from the IS kezekte.kz, case materials of those on the waiting list;

b) the following documents shall be submitted for claims to challenge the decisions of housing commissions in recognition as needing housing and payment of UZHV, TGV:

plaintiffs - lease agreements with the right to buy, mortgage agreements, certificates of the presence/absence of property,

defendants - decisions of the housing commission on registration of those in need, on removal from the register, on refusal to apply for the UZHV - TGV, certificates of the presence/absence of property, orders for employment, service records, orders for dismissal in connection with the expiration of the contract (etc.), case materials of recipients of housing payments - on the waiting list.

According to Part 1 of Article 129 of the APC, the plaintiff is obliged to participate in the collection of evidence in accordance with his capabilities.

Regardless of the type of claim filed, the plaintiff is obliged to prove the time when he became aware of the violation of his rights, freedoms and legitimate interests, as well as the amount of losses incurred.

Often, a person registered for housing or his/her representative is not notified by the authorized body of removal from the waiting list or transfer to the queue in another category, while paragraph 3 of Article 73 of the Law on deregistration of interested persons is notified in writing within ten days after the decision is made, indicating the grounds for deregistration.

In this regard, when the court considers the issue of restoring the missed deadline for filing a claim as evidence, the defendant is obliged to provide a written notice of the plaintiff about removal from the queue or transfer to another category, with a note of delivery and/or delivery to the interested person.

The absence of such evidence is the basis for recognizing the delay in filing a claim with the court as valid. 

Time limits for filing a claim (practice of restoring time limits)

The terms for filing a claim are provided for by Chapter 20 of the APC, in particular, they are regulated by Article 136 of the APC.

As a general rule, the deadline for filing a claim missed for a good reason can be restored by the court according to the rules of the Civil Procedure Code.

The reasons for missing the deadlines for filing a claim with the court and their importance for the correct resolution of the administrative case are clarified by the court at the preliminary hearing.

Failure to meet the deadline for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed deadline for filing a claim with the court, are grounds for returning the claim.

At the same time, it should be taken into account that by virtue of Part 5 of Article 136 of the APC, 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 claim with the court within a month from the date when 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.

In practice, there are cases when the court, applying this rule, does not take into account the factual circumstances of the case.

For reference: T. filed a lawsuit against GU-1, GU-2 to recognize the following as illegal:

1) acceptance of the apartment on the balance sheet of the GU-1,

2) Resolution of the akim on the acceptance of property in part of the apartment on the balance sheet.

By the decision of the SIAC dated June 8, 2023, the restoration of the deadline for filing a claim was denied, the claim was returned in accordance with subparagraph 15) of part two of Article 138 of the APC.

By the decision of the SCAD of the Mangistau region dated July 27, 2023, the definition was left unchanged.

On January 24, 2024, the SCAD Supreme Court, reversing the ruling of the lower courts and sending the case for a new trial to the court of first instance, indicated that the court of first instance, refusing to restore the deadline for filing a claim, concluded that the claim was filed more than one year after the issuance of the contested resolution, that is, the plaintiff missed the one-year period for filing a claim with the court,  which, by virtue of part five of Article 136 of the APC, is preclusive and is not subject to restoration (No6001-23-00-6ap/2368).

However, the court did not take into account the plaintiff's advanced age (78 years), being in rehabilitation after a hip fracture, that is, the plaintiff presented sufficient evidence indicating the validity of the reasons for missing the deadline for filing a claim with the court, and by virtue of the norms of the current legislation, the missed deadline by the plaintiff was subject to restoration. 

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

- IS – Information System

- SCAD of the Supreme Court – Judicial Chamber for Administrative Cases of the Supreme Court of the Republic of Kazakhstan

- SCAD or collegium – judicial chamber for administrative cases

- SIAS – Specialized Inter-District Administrative Court  of the - Ministry of Internal Affairs of the Republic of Kazakhstan – Ministry of Internal Affairs of the Republic of Kazakhstan

- 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

- Department of Emergency Situations

- SGO – Special State Bodies

- DP – Police Department

- TGV - current housing payments

- EZHV - Lump-sum Housing Payments

- GZHF - State Housing Fund

- – Local Executive Bodies 

The main regulatory legal acts governing housing disputes are:

- Constitution of the Republic of Kazakhstan;

- APPK;

- LEDGER; - GCA;

- the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law on Housing Relations);

- the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law on State Property);

- The Law of the Republic of Kazakhstan "On Military Service and the Status of Servicemen" (hereinafter referred to as the Law on Military Service);

- Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter referred to as the Law on Law Enforcement Agencies);

- Law of the Republic of Kazakhstan "On Legal Acts" (hereinafter referred to as the Law on Legal Acts);

- NP SC "On Judicial Practice of Application of Legislation on Privatization of Residential Premises from the State Housing Fund by Citizens" dated July 18, 1997 No9;

as well as by-laws:

- Rules for the provision of service housing for military personnel, calculation of the amount, appointment, recalculation, implementation, termination, suspension and resumption of housing payments, approved by the Decree of the Government of the Republic of Kazakhstan No49 dated February 12, 2018 (hereinafter referred to as Rules No49);

- Rules for the implementation of monetary compensation, approved by the Decree of the Government of the Republic of Kazakhstan No50 dated February 12, 2018 (hereinafter referred to as Rules No50);

- Rules for Provision of Service Housing for Employees of Internal Affairs Bodies, Calculation of the Amount, Appointment, Recalculation, Implementation, Termination, Suspension and Resumption of Housing Payments, as well as Categories of Positions of Employees of Internal Affairs Bodies Entitled to Receive Housing Payments, approved by Decree of the Government of the Republic of Kazakhstan dated August 5, 2021 No524 (hereinafter referred to as Rules No524);

- Rules for Privatization of Housing from the State Housing Fund, approved by the Decree of the Government of the Republic of Kazakhstan dated July 2, 2013 No673 (hereinafter referred to as Rules No673);

- Rules for the provision of the public service "Registration and Priority, as well as Adoption by Local Executive Bodies of a Decision on the Provision of Housing to Citizens in Need of Housing from the State Housing Fund or Housing Leased by a Local Executive Body in the Private Housing Fund", approved by Order of the Acting Minister of Industry and Infrastructure Development of the Republic of Kazakhstan dated August 13, 2021 No441;

- Rules for the Transfer of State Property Assigned to State Legal Entities from One Type of State Property to Another, approved by Order of the Minister of National Economy of the Republic of Kazakhstan dated May 26, 2023 No85;

- Rules for registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing leased by a local executive body in the private housing stock, approved by Order of the Minister of Industry and Construction of the Republic of Kazakhstan dated December 27, 2023 No168.

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 sections 10 and 12 of the Law on Legal Acts, codes have more legal force than laws; In the presence of contradictions in the norms of regulatory legal acts of different levels, the norms of the act of a higher level shall prevail.

According to the general rule provided for by Article 4 of the Civil Code, Article 43 of the Law on Legal Acts, regulatory legal acts are applied to relations that arose after their enactment. 

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