Evidence and Proof in Claims Challenging Decisions of Housing Commissions

Despite the fact that, pursuant to Article 129 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (APPC), the burden of proof in claims challenging administrative acts lies with the administrative body, the administrative body/housing commission has access only to the data contained in information exchange systems between government authorities. 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 proof in housing disputes requires the submission of evidence, information concerning which is protected by law or which, by 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 of a personal nature (information on family composition).

Accordingly, the following may be submitted as evidence:

a) In claims challenging decisions of local executive bodies' housing commissions to remove persons from the housing waiting list, claimants may submit:

• documents confirming that they belong to a category eligible for placement on the housing 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 the registered rights to property of all family members, etc.);
• as evidence of residence (non-departure), claimants may submit certificates from places of study and employment, witness statements, reports (character references) issued by district police inspectors.

Courts are required to request the history of registration at the place of residence from the migration police, since the SIO PSO database contains only current information (the history, including the dates of permanent/temporary registration and deregistration, is not available in the SIO PSO), and such data is not provided in personal accounts in eGov web applications.

Respondents shall submit:

• decisions on placement on the housing waiting list;
• decisions of housing commissions removing persons from the waiting list;
• information from the kezekte.kz information system;
• case materials relating to persons on the housing waiting list.

b) In claims challenging decisions of housing commissions concerning recognition of a person as being in need of housing and payment of housing allowances and targeted housing payments, the following documents shall be submitted:

claimants:

• lease agreements with an option to purchase;
• mortgage agreements;
• certificates confirming the presence/absence of property;

respondents:

• decisions of housing commissions on placing persons in need of housing on the housing register;
• decisions on removal from the register;
• decisions refusing to grant housing allowances or targeted housing payments;
• certificates confirming the presence/absence of property;
• orders on employment;
• service records;
• orders on dismissal due to expiry of the employment contract term, etc.;
• case materials relating to recipients of housing payments who are on the waiting list.

Pursuant to paragraph one of Article 129 of the APPC, the claimant, to the extent of their capabilities, is obliged to participate in the collection of evidence. Regardless of the type of claim filed, the claimant is required to prove when they became aware of the violation of their rights, freedoms and legitimate interests, as well as the amount of losses incurred.

In many cases, a person registered on the housing waiting list, or their representative, is not notified by the competent authority of their removal from the waiting list or transfer to a waiting list under another category, whereas paragraph 3 of Article 73 of the Law on removal from the register provides that interested persons must be notified in writing within ten days after the decision is made, specifying the grounds for removal from the register.

In this regard, when the court considers the issue of restoring the missed time limit for filing a claim, the respondent is required to provide, as evidence, written notification to the claimant of their removal from the waiting list or transfer to another category, bearing confirmation of its delivery and/or receipt by the interested person.

The absence of such evidence constitutes grounds for recognizing the missed time limit for filing the claim with the court as having been missed for valid reasons.

Conciliation Procedures

The APPC provides for the possibility of conducting conciliation procedures in disputes arising from public-law relations. At the same time, conciliation between the parties is permissible where the respondent has administrative discretion. This provision of the legislation is justified by the fact that violations of the rights of an individual or legal entity may be remedied through the annulment of the contested administrative act or the termination of a particular action by the state body or official themselves.

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

The court's taking measures to reconcile the parties and assisting them in settling the dispute at all stages of the proceedings follows from the objectives of administrative proceedings. Maintaining a neutral position with regard to the parties' claims, the court explains to the parties their right to use conciliation procedures and the legal consequences of entering into such agreements.

At the same time, the application within administrative proceedings of the principles of the APPC (the active role of the court, fairness and proportionality), procedural coercive measures (monetary penalties), and conciliation procedures has significantly improved the quality of adjudication 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 respondent may independently annul the contested administrative act or take actions as a result of which the dispute ceases to exist.

Jurisdiction

When considering cases arising from housing legal 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 resolving disputes.

Jurisdiction is determined in accordance with Articles 102, 103 and 106 of the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (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 consider administrative cases concerning claims brought by military personnel of the Armed Forces of the Republic of Kazakhstan, other troops and military formations, as well as citizens undergoing military training, where the respondent is a military administration body or a military unit, except for cases falling within the jurisdiction of other specialized courts.

If a military court has not 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, in general, claims submitted to the courts have been accepted in compliance with the rules of jurisdiction and do not cause any significant difficulties for the courts.

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

Thus, targeted housing payments (ТЖВ) are granted to active-duty military personnel, and disputes concerning such payments fall within the jurisdiction of military courts. By contrast, housing payments (ЕЖВ) are granted upon the dismissal of a military servicemember. Due to the loss of the relevant status by one of the parties to the dispute, the rules of special jurisdiction no longer apply.

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

Procedure for Conducting Proceedings

Pursuant to Articles 146 and 148 of the APPC, an administrative case shall be considered and resolved within a reasonable period, but no later than three months from the date of filing the claim.

Court proceedings shall be conducted in accordance with the rules of the Civil Procedure Code, 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 through written proceedings within a reasonable period, but no later than three months from the date of filing the claim.

After registration of the claim, at the stages of the preliminary hearing and court proceedings, the court, within the framework of its active role, ensures assistance in developing the claimants' 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 Proceedings

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

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

The persons participating in the proceedings are determined by the claimant when filing the claim with the court. The persons entitled to bring claims 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 the administrative act or administrative action (inaction). Such persons are subsequently joined as interested persons in accordance with the relevant provisions of the APPC.

The analysis showed that, in claims brought by military personnel, law enforcement officers and employees of special state bodies concerning ТЖВ and ЕЖВ payments, the respondent is the relevant territorial administrative body under which the housing commissions that adopted the contested decisions have been established (military units, institutions of the Penal Enforcement System, police departments, line departments, security services, etc.). Where necessary, a higher-level state body (Committee, Ministry) is joined as an interested person.

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

Pursuant to subparagraph 12) of paragraph 1 of Article 31 of the Law of the Republic of Kazakhstan “On Local State Administration and Self-Government in the Republic of Kazakhstan,” the akimat of a district (or a city of regional significance), in accordance with the legislation of the Republic of Kazakhstan, organizes the construction of housing belonging to 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, at the place of residence of the applicant, by decision of the local executive body on the basis of a decision of the housing commission.

Housing commissions of local executive bodies operating on a permanent basis are established under local executive bodies. The authorized body is the local executive body providing the housing.

In each particular case, it is necessary to properly determine the respondents based on the subject matter and grounds of the claimant's demands, the respondent'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 respondent, the court, pursuant to Articles 16 and 116 of the APPC, in order to avoid unnecessary delays in resolving the dispute, should explain to the claimant the procedure for replacing an improper respondent with the proper respondent in accordance with Article 29 of the APPC.

Based on the practice of local courts, there is no need to join members of housing commissions as respondents.

A judgment granting the claim is enforced by the administrative body, the akim, or the Department of Housing and Communal Services. No difficulties or problematic issues have arisen in the enforcement of judgments that have entered into legal force.

Time Limits for Filing Claims

(Practice of Restoring Missed Time Limits)

The time limits for filing claims are provided for in Chapter 20 of the APPC and, in particular, are regulated by Article 136 of the APPC.

As a general rule, a time limit for filing a claim missed for a valid reason may be restored by the court in accordance with the rules of the Civil Procedure Code. 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 paragraph 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, has the right to file a claim with the court within one month from the date on which that 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.

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 Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (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 in cases where evidence is submitted or court instructions are complied with after the deadline established by the court without valid reasons, if this has resulted in a delay in the consideration of the administrative case. A monetary penalty of ten monthly calculation indices shall be imposed for each such action (inaction).

For failure to comply with a court requirement or request, failure of a person participating in an administrative case to appear before the court, late notification of the court, late submission of a response, failure to comply with the instructions of the presiding judge during the court hearing, violation of the rules established by the court, as well as other actions (inactions) clearly indicating 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 comply with a court judgment 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 respondent in the amount of fifty monthly calculation indices, specifying in the same judicial act a period not exceeding one month within which it 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 respondents for the following reasons:

• late submission of a response;
• late or incomplete submission of the administrative case materials;
• failure to appear at a court hearing (or failure to connect online) 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

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

Administrative Chamber or Chamber – Judicial Chamber for Administrative Cases

IAC – Interdistrict Administrative Court

MIA – Ministry of Internal Affairs of the Republic of Kazakhstan

MD – Ministry of Defence of the Republic of Kazakhstan

NSC – National Security Committee of the Republic of Kazakhstan

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

DES – Department for Emergency Situations

SSB – Special State Bodies

PD – Police Department

ТЖВ – Current Housing Payments

ЕЖВ – 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 Military Personnel” (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 of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Applying Legislation on the Privatization by Citizens of Residential Premises from the State Housing Fund” dated 18 July 1997 No. 9.

As well as subordinate regulatory legal acts:

• Rules for Providing Military Personnel with Official Housing, Calculating the Amount, Granting, Recalculating, Making, Terminating, Suspending and Resuming Housing Payments, approved by Resolution of the Government of the Republic of Kazakhstan No. 49 dated 12 February 2018 (hereinafter – Rules No. 49);
• Rules for Providing Monetary Compensation, approved by Resolution of the Government of the Republic of Kazakhstan No. 50 dated 12 February 2018 (hereinafter – Rules No. 50);
• Rules for Providing Employees of Internal Affairs Bodies with Official 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 Receive Housing Payments, approved by Resolution of the Government of the Republic of Kazakhstan No. 524 dated 5 August 2021 (hereinafter – Rules No. 524);
• Rules for the Privatization of Housing from the State Housing Fund, approved by Resolution of the Government of the Republic of Kazakhstan No. 673 dated 2 July 2013 (hereinafter – Rules No. 673);
• Rules for the Provision of the Public Service “Registration and Placement on the Waiting List, as well as Adoption by Local Executive Bodies of Decisions on the Provision of 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 Registering 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 contradictions between provisions of regulatory legal acts of different levels, the provisions of the higher-level act shall apply.

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

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