Claims Related to Monetary Compensation and/or the Right to Gratuitous Privatization

The procedure for the payment of monetary compensation is governed by paragraph 4 of Article 101-2 of the Law, paragraphs 6 and 7 of Article 55 of the Law on Military Service, and Rules No. 50.

Pursuant to subparagraph 1) of paragraph 2 of Rules No. 50, monetary compensation means one-time housing payments made in lieu of the right to gratuitous privatization where a person resides in service housing that is not subject to privatization in the cases provided for by paragraph 4 of Article 101-2 of the Law and paragraphs 6 and 7 of Article 55 of the Law on Military Service.

Thus, an example is of interest where, based on a literal interpretation of the above provisions of the law, the defendant lawfully and reasonably refused to pay the claimant the monetary compensation sought by him.

For reference: In an administrative case upon the claim of M. against a state institution for declaring unlawful the protocol decision of the housing commission and the response refusing to pay monetary compensation in lieu of the right to gratuitous privatization, declaring unlawful the administrative act refusing to pay monetary compensation in lieu of the right to gratuitous privatization, and ordering the defendant to remedy the violation of the law, calculate and pay monetary compensation in lieu of the right to gratuitous privatization.

By the decision of the Specialized Interdistrict Administrative Court (SIAС), the claim was partially satisfied: the protocol decision of the defendant’s housing commission and the administrative act refusing to pay monetary compensation in lieu of the right to gratuitous privatization were declared unlawful; the defendant was ordered to remedy the violations of the law.

The claim for declaring unlawful the defendant’s response refusing to pay monetary compensation was dismissed.

On 26 January 2023, the Judicial Collegium for Administrative Cases (JCAC) upheld the decision of the SIAC dated 20 September 2022 without alteration (Case No. 6001-23-00-6ап/739).

By a ruling of the Judicial Collegium for Administrative Cases of the Supreme Court, the judicial acts of the lower courts were modified.

The decision insofar as it dismissed the claim for declaring unlawful the defendant’s response refusing to pay monetary compensation in lieu of the right to gratuitous privatization was set aside, and the claim in this part was returned as not subject to consideration under administrative court proceedings.

It was established that the claimant, being a servicemember, had been serving in the military since May 2002, had not received the disputed monetary compensation during that period, had not exercised the right to privatize housing, and had been recognized as being in need of housing since 2004. Neither he nor his family members owned housing; they resided in service accommodation located in a closed military settlement and, therefore, not subject to privatization. Upon her discharge from military service, the claimant’s wife received a one-time housing payment (OHP) pursuant to paragraph 5 of Article 101-2 of the Law in the amount of KZT 7,185,000 by order of the commander of the military unit.

By the disputed decision of the housing commission, the claimant was refused payment of monetary compensation because his wife had received the above-mentioned housing payments upon her discharge from military service.

By a letter dated 17 June 2022, which was also challenged by the claimant, he was informed of the decision of the housing commission.

On 14 July 2022, following M.’s application, the defendant issued an administrative act refusing the claimant payment of monetary compensation on the same grounds as those stated by the housing commission.

Paragraph 5 of Article 101-2 of the Law was not applicable to the resolution of the case. Under this provision, the relevant housing payments are made without taking into account the spouses of servicemembers, as well as their children, where the servicemembers exercised their right to housing before entering into marriage, whereas in the present case this provision concerns OHPs rather than the monetary compensation sought by the claimant. Moreover, the claimant and his wife had been married since 2006, meaning that they exercised their right to housing payments after entering into marriage.

Paragraph 4 of Rules No. 50 was likewise inapplicable, since its purpose is to regulate the procedure for paying monetary compensation and calculating its amount, whereas the subject matter of the dispute concerned the claimant’s entitlement to such compensation rather than its amount.

The courts established that the claimant’s wife had received an OHP upon her discharge from military service pursuant to the above-mentioned provision.

The literal meaning of subparagraph 3) of the third paragraph of paragraph 4 of Article 101-2 of the Law restricts the payment of monetary compensation to the claimant because his wife had received an OHP. The Judicial Collegium found no basis for any other interpretation of this mandatory requirement.

Pursuant to subparagraph 3) of Article 101-7 of the Law, the recipient of housing payments (the claimant’s wife) is required to use such payments for the purposes provided for by Article 101-5 of the Law.

Where both spouses are servicemembers, 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 provides that the right of servicemembers to acquire housing into ownership through the use of housing payments may be exercised only once.

Servicemembers shall be denied recognition as persons in need of housing if they or their spouses have received housing payments provided for by the first part of paragraph 5 of Article 101-2 of the Law (subparagraph 2) of paragraph 3 of Article 101-3 of the Law on Housing).

In the opinion of the Judicial Collegium, a systematic analysis of the above provisions of the Law indicates that the claimant and his wife were granted, by law and at their joint choice, the opportunity to exercise either the right to a one-time housing payment upon discharge from military service (which was exercised by the claimant’s wife) or the right to monetary compensation in lieu of the right to gratuitous privatization of housing from the State Housing Fund.

The Judicial Collegium agreed that the defendant’s response challenged by the claimant did not constitute an administrative act, since the refusal to pay him monetary compensation had been made by the decision of the housing commission and by the defendant’s administrative act.

However, in such circumstances, the claim in this part should have been returned pursuant to subparagraph 11) of part two of Article 138 of the Administrative Procedural and Process-Related Code (APPC).

Thus, the Judicial Collegium concluded that the courts of the lower instances had established and described the circumstances of the case in sufficient detail and to an extent sufficient for its resolution, but had incorrectly applied the substantive and procedural rules of law, namely: they had misinterpreted the law, applied provisions of regulatory legal acts that were not applicable, and, conversely, failed to apply the relevant provisions of the Law.

Conciliation Procedures

The APPC provides for the possibility of conducting conciliation procedures in disputes arising from public-law relations; however, conciliation of the parties is permissible where the defendant has administrative discretion. This provision of the legislation is justified by the fact that violations of the rights of a citizen or legal entity may be remedied by revoking the contested act or by the state body or official discontinuing the relevant action.

Based on mutual concessions, the parties may fully or partially terminate an administrative case by concluding a settlement agreement, a mediation agreement, or an agreement on dispute resolution through a participatory procedure at any stage of the administrative proceedings before the court retires to deliberate and render its decision.

The court’s taking measures to reconcile the parties and assisting them in resolving the dispute at all stages of the proceedings follows from the objectives of administrative court proceedings. Maintaining a neutral position with regard to the parties’ claims, 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 within administrative court proceedings of the principles of the APPC (the active role of the court, fairness, and proportionality), measures of procedural coercion (monetary penalty), and conciliation procedures has significantly improved the quality of consideration of cases in this category.

Thus, implementation of the principle of the active role of the court contributes to the resolution of the dispute by the court or to the withdrawal of the claim due to the amicable settlement of the dispute or clarification of the prospects of the case. For example, the defendant may itself revoke the contested act or take actions as a result of which the dispute ceases to exist.

Jurisdiction

When considering disputes arising from housing relations, compliance with the rules of jurisdiction, filing claims by persons entitled to bring such claims, and the proper determination of the subject matter of the claim are of particular importance for the resolution of disputes.

Jurisdiction is determined in accordance with Articles 102, 103 and 106 of the APPC. At the claimant’s request, cases falling within the jurisdiction of specialized district and equivalent administrative courts may be considered by the court at the claimant’s place of residence, except for cases falling within the jurisdiction of specialized district and equivalent administrative courts located within cities of republican significance, the capital, and regional centers.

Pursuant to Article 103 of the APPC, military courts hear administrative cases brought by servicemembers of the Armed Forces of the Republic of Kazakhstan and other troops and military formations, as well as citizens undergoing military training, where the defendant is a military administration body or a military unit, except for cases falling within the jurisdiction of other specialized courts.

If no military court has been established within the territory of the relevant administrative-territorial unit, administrative cases falling within its jurisdiction shall be considered by specialized district and equivalent administrative courts in accordance with the procedure established by this Code.

The analysis showed that, for the most part, claims filed with the courts had been accepted in compliance with the rules of jurisdiction and did not cause any particular difficulties for the courts.

At the same time, where a military court exists in the relevant region, questions arise concerning the proper determination of jurisdiction over claims for the appointment of one-time housing payments (OHPs).

 Thus, housing payments during service are granted to active servicemembers, and jurisdiction over disputes concerning such payments falls within the competence of military courts. By contrast, one-time housing payments are granted upon the servicemember’s discharge from military service, and due to the loss of servicemember status by one of the parties to the dispute, special jurisdiction no longer applies.

Based on the judicial practice outlined above, it should be noted that the proper determination of jurisdiction is important by virtue of the constitutional provision, and compliance with jurisdictional rules in administrative cases must be ensured in accordance with Articles 102 and 103 of the APPC.

Procedure for Proceedings

Pursuant to Articles 146 and 148 of the APPC, an administrative case shall be considered and resolved within a reasonable period, but not exceeding three months from the date of filing the claim.

Court proceedings shall be conducted in accordance with the rules of the Civil Procedure Code (CPC), except for the specific features established by Article 147 of the APPC. With the consent of the parties, the court may consider an administrative case in written proceedings within a reasonable period, but not exceeding three months from the date of filing the claim.

After registration of the claim, at the preliminary hearing and during the trial, the court, within the framework of its active role, shall assist the claimants in formulating a proper legal position.

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

Persons Participating in the Case

Pursuant to Article 26 of the APPC, participants in administrative proceedings are the claimant, defendant, interested person, and prosecutor.

At the same time, pursuant to Article 31 of the APPC, the prosecutor generally does not participate in housing disputes.

The persons participating in the case are determined by the claimant when filing the claim with the court. The persons entitled to bring a claim before the court are specified in Articles 67–68 of the Law.

At the preliminary hearing, the court determines the persons whose rights, freedoms, or legitimate interests may be affected by an administrative act or administrative action (inaction). Such persons are subsequently involved in the proceedings as interested persons in accordance with the relevant provisions of the APPC.

The analysis shows that, in claims brought by servicemembers and employees of law-enforcement and special state bodies concerning housing payments during service and one-time housing payments, the relevant territorial administrative body under which the housing commissions that adopted the decisions were established acts as the defendant (military units, institutions of the Penal Enforcement System, Departments of Police, line departments, security services, etc.). Where necessary, a higher state body (Committee, Ministry) is involved as an interested person.

In claims brought by citizens against local executive bodies, the akim of the relevant administrative-territorial unit and/or the Housing and Communal Services Department or the Housing Relations Department is involved as the defendant.

Pursuant to subparagraph 12) of paragraph 1 of Article 31 of the Law of the Republic of Kazakhstan “On Local Government and Self-Government in the Republic of Kazakhstan,” the akimat of a district (or a city of regional significance) organizes, in accordance with the legislation of the Republic of Kazakhstan, the construction of housing from the municipal housing stock and its distribution.

Pursuant to paragraph 1 of Article 77 of the Law, housing from the municipal housing stock or housing rented by a local executive body from the private housing stock shall be provided by decision of the local executive body at the applicant’s place of residence on the basis of a decision of the housing commission.

Permanent housing commissions of local executive bodies are established under the local executive bodies. The authorized body is the local executive body providing the housing.

In each specific case, it is necessary to properly determine the defendants based on the subject matter and grounds of the claimant’s request, the defendant’s objections, the laws applicable to the dispute, as well as the legal status and powers of the authorized bodies.

Where a claim is brought against an improper defendant, pursuant to Articles 16 and 116 of the APPC, in order to prevent delays in the consideration of the dispute, the court should explain to the claimant the procedure for replacing the improper defendant with the proper defendant in accordance with Article 29 of the APPC.

The practice of local courts indicates that there is no need to involve members of housing commissions as defendants.

A decision granting a claim is enforced by the administrative body, akim, or Housing and Communal Services Department. No difficulties or problematic issues arise in the enforcement of final and binding court decisions.

Evidence and Burden of Proof

Although, pursuant to Article 129 of the APPC, in claims challenging an administrative act or action, the burden of proof rests with the administrative body, the body/housing commission has access only to the information available in interagency information-exchange systems. As a rule, when making decisions, local executive bodies do not request additional documents from persons on the housing waiting list.

At the same time, the nature of evidence in housing disputes requires the submission of evidence, information concerning which is protected by law or which, due to its nature, can only be provided by the claimant (mortgage agreements, bank certificates, certificates from places of employment or study, service records), or which is personal in nature (information concerning the composition of the family).

Thus, as evidence:

a) in claims challenging decisions of housing commissions of local executive bodies to remove persons from the housing waiting list, claimants may submit documents confirming their eligibility for inclusion in the relevant category of persons on the waiting list (service records from human resources departments, certificates from the place of employment of civil servants, disability certificates, birth certificates for all children, divorce certificates, certificates confirming registered property rights of all family members, etc.);

as evidence of residence (non-departure from the relevant place of residence), claimants may submit certificates from places of study or employment, witness statements, and reports (character references) of local police inspectors.

Time Limits for Filing a Claim (Practice Concerning Restoration of Time Limits)

The time limits for filing a claim are established by Chapter 20 of the APPC and, in particular, are governed by Article 136 of the APPC.

As a general rule, a time limit for filing a claim that has been missed for a valid reason may be restored by the court in accordance with the rules of the CPC. The reasons for missing the time limit for filing a claim with the court and their significance for the proper resolution of the administrative case are determined by the court at the preliminary hearing.

Missing the time limit for filing a claim with the court without a valid reason, as well as the impossibility of restoring the missed time limit for applying to the court, constitute grounds for returning the claim.

At the same time, it should be taken into account that, pursuant to part five of Article 136 of the APPC, a person who did not participate in the administrative procedure, but whose rights, freedoms, and legitimate interests are affected by an administrative act, is entitled to file a claim with the court within one month from the date on which that person became aware or could have become aware of the adoption of the administrative act, but no later than one year from the date of its adoption.

Application of Procedural Coercive Measures

Where a violation of procedural legislation is established during the consideration of a case, procedural coercive measures shall be applied in accordance with Chapter 18 of the APPC.

Pursuant to Article 127 of the APPC, the court may impose a monetary penalty on a person who abuses procedural rights or fails to perform procedural duties, including for submitting evidence or carrying out instructions after the deadline established by the court without a valid reason, where this has resulted in a delay in the consideration of the administrative case. The penalty shall be imposed for each such action (inaction) in the amount of ten monthly calculation indices.

For failure to comply with a requirement or request of the court, failure of a person participating in an administrative case to appear in court, failure to notify the court in a timely manner, late submission of a response, failure to comply with the directions of the presiding judge during the hearing, violation of the rules established by the court, as well as other actions (inaction) clearly demonstrating disrespect for the court and/or judge, the court may impose a monetary penalty in the amount of twenty monthly calculation indices.

For failure to enforce a court decision or a court ruling approving an agreement between the parties on conciliation, mediation, or settlement of the dispute through a participatory procedure, the court shall impose a monetary penalty on the defendant in the amount of fifty monthly calculation indices, specifying in the same judicial act a period, not exceeding one month, within which the decision or ruling must be enforced.

During the period under review, the courts developed a practice of applying procedural coercive measures in the form of monetary penalties.

In this category of disputes, monetary penalties are most frequently imposed on defendants for the following reasons:

• late submission of the response;
• late or incomplete submission of the materials of the administrative case;
• failure to appear (or failure to connect online) at a court hearing without a valid reason.

Abbreviations Used:

APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan

CPC – Civil Procedure Code of the Republic of Kazakhstan

CC – Civil Code of the Republic of Kazakhstan

NPR SC – Normative Resolution of the Supreme Court of the Republic of Kazakhstan

IS – Information System

JCAA SC – Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan

JCAA or the Collegium – Judicial Collegium for Administrative Cases

SIAC – Specialized Interdistrict Administrative Court

MIA – Ministry of Internal Affairs of the Republic of Kazakhstan

MD – Ministry of Defense of the Republic of Kazakhstan

NSC – National Security Committee of the Republic of Kazakhstan

GP – General Prosecutor’s Office of the Republic of Kazakhstan

DSES – Department of Emergency Situations

SSB – Special State Bodies

DP – Department of Police

CHP – Current Housing Payments

OHP – One-Time Housing Payments

SHF – State Housing Fund

LEB – Local Executive Bodies

The principal regulatory legal acts governing housing disputes are:

• Constitution of the Republic of Kazakhstan;
• APPC;
• CC;
• CPC;
• Law of the Republic of Kazakhstan “On Housing Relations” (hereinafter – the Law on Housing Relations);
• Law of the Republic of Kazakhstan “On State Property” (hereinafter – the Law on State Property);
• Law of the Republic of Kazakhstan “On Military Service and the Status of Servicemen” (hereinafter – the Law on Military Service);
• Law of the Republic of Kazakhstan “On Law Enforcement Service” (hereinafter – the Law on Law Enforcement Bodies);
• Law of the Republic of Kazakhstan “On Legal Acts” (hereinafter – the Law on Legal Acts);
• Normative Resolution No. 9 of the Supreme Court of the Republic of Kazakhstan dated 18 July 1997 “On Judicial Practice in Applying Legislation on the Privatization by Citizens of Residential Premises from the State Housing Fund.”

As well as subordinate regulatory legal acts:

• Rules for Providing Servicemen with Service Housing, Calculating the Amount, Granting, Recalculating, Making, Terminating, Suspending and Resuming Housing Payments, approved by Resolution No. 49 of the Government of the Republic of Kazakhstan dated 12 February 2018 (hereinafter – Rules No. 49);
• Rules for Making Monetary Compensation Payments, approved by Resolution No. 50 of the Government of the Republic of Kazakhstan dated 12 February 2018 (hereinafter – Rules No. 50);
• Rules for Providing Employees of Internal Affairs Bodies with Service Housing, Calculating the Amount, Granting, Recalculating, Making, Terminating, Suspending and Resuming Housing Payments, as well as Categories of Positions of Employees of Internal Affairs Bodies Entitled to Housing Payments, approved by Resolution No. 524 of the Government of the Republic of Kazakhstan dated 5 August 2021 (hereinafter – Rules No. 524);
• Rules for Privatization of Housing from the State Housing Fund, approved by Resolution No. 673 of the Government of the Republic of Kazakhstan dated 2 July 2013 (hereinafter – Rules No. 673);
• Rules for the Provision of the State Service “Registration and Placement on the Waiting List, as well as Adoption by Local Executive Bodies of Decisions on Providing Housing to Citizens in Need of Housing from the State Housing Fund or Housing Rented by a Local Executive Body from the Private Housing Fund,” approved by Order No. 441 of the Acting Minister of Industry and Infrastructure Development of the Republic of Kazakhstan dated 13 August 2021;
• Rules for the Transfer of State Property Assigned to State Legal Entities from One Type of State Ownership to Another, approved by Order No. 85 of the Minister of National Economy of the Republic of Kazakhstan dated 26 May 2023;
• Rules for Registration of Citizens of the Republic of Kazakhstan in Need of Housing from the State Housing Fund or Housing Rented by a Local Executive Body from the Private Housing Fund, approved by Order No. 168 of the Minister of Industry and Construction of the Republic of Kazakhstan dated 27 December 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.

Pursuant to Articles 10 and 12 of the Law on Legal Acts, codes have greater legal force than laws; where there are conflicts between provisions of regulatory legal acts of different levels, the provisions of the act having higher legal force shall apply.

As a general rule, established by Article 4 of the CC and Article 43 of the Law on Legal Acts, regulatory legal acts apply to relations arising after their entry into force.

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