Exemption from seizure of immovable property encumbered in the framework of a criminal case

On July 18, 2018, the District Court No. 2 of the Medeu district of Almaty, having considered in open court the application of R.J.T. for release from seizure of immovable property in the form of an apartment located at the address: Almaty, mkr. ..., 8, sq.18, Established: R.J.T. appealed to the district court No. 2 of the Medeu district of Almaty with an application for exemption from seizure of immovable property in the form of an apartment located at the address: Almaty, mkr. ...., 8, sq.18. At the court hearing, the representative by proxy Sarzhanov G.T. in the interests of R.Zh.T., motivating the demands by the fact that in 2008, the investigator from the Medeu district police department of Almaty, police Major Sorokin V., after reviewing the materials of the criminal case No...... issued a decree on the seizure of property belonging to R.Zh.T. dated 11/24/2008, which was authorized by the prosecutor of the Medeu district of Almaty senior Justice Adviser E.M. Sybankulov, where the investigator established that R.Zh. had deceived A.T. into concealing the fact of the deposit agreement. in Alliance Bank JSC, after which, abusing the bank's trust, he concluded three bank loan agreements under No. 15340562-1417-NN/2007 dated 06/27/2007 in the amount of USD 50,000, which according to the exchange rate of the National Bank of the Republic of Kazakhstan amounts to KZT 6,081,000, No. 15390905-1417-NN/2007 dated 07/10/2007 in the amount of 50,000 US dollars, which, according to the exchange rate of the National Bank of the Republic of Kazakhstan, amounts to 6,092,500 tenge and No. 154659560-1417-NN/2007 dated 27.07.2007. in the amount of 40,000 US dollars, which, according to the exchange rate of the National Bank of the Republic of Kazakhstan, amounts to 4,910,800 tenge, as collateral for the fulfillment of obligations, he secured an uninhabited premises (shop) with a plot of land at the address: 275 "B" R. Street, Almaty, which he had previously actually sold A.T. The above-mentioned arrest was imposed in order to secure a verdict in respect of a civil claim, other property penalties or possible confiscation of property. The arrest was imposed on the property of R.J.T. based on art.161 of the CPC of the Republic of Kazakhstan, namely, real estate objects: at the address: Almaty, ul. R., 275, "B"; Almaty, mkr. ..., 8, sq.18; Almaty, ul...., 10. 2 On To date, all of the above-mentioned real estate has been alienated for one reason or another, except for the mortgaged real estate located at the address: Almaty, mkr. ..., 8, sq.18, which was pledged to the bank as part of the interim measures under the loan agreement. On May 25, 2007, Alliance Bank JSC, now ForteBank JSC, and R.J.T. a bank loan agreement No. 15203436-1417-NN/2007 was concluded on terms of urgency, repayment and payment, according to which R.J.T. was granted a loan in the amount of 193,648 US dollars at the rate of 15% interest per annum, for a period of 180 months from the date of the loan. As security for the assumed obligations, a pledge agreement was concluded between the parties on May 31, 2007, according to which Rahman Zh.T. was provided with an apartment located at the address: Almaty, mkr. ..., 8, sq.18.

Exemption from seizure of immovable property encumbered in the framework of a criminal case

To date, R.J.T. is unable to fulfill contractual obligations to the bank due to financial difficulties. Thanks to the support and foresight of the Leader of the Nation, the Guarantor of Statehood and defender of all citizens of the Republic of Kazakhstan, Nursultan Nazarbayev was instructed to adopt a program to refinance mortgage housing loans/mortgage loans for his compatriots in need. Accordingly, the borrower sent an appropriate request to the bank with the necessary documents, since R.J.T., as a borrower, falls under this refinancing program according to all criteria, the authorized body of the Bank reviewed and decided to approve the refinancing of problem debts under the state program for refinancing residential mortgage/mortgage loans. In order to complete and conclude a bank loan agreement under the state program, it is necessary to remove the encumbrance imposed as security for the claim on the defendant's property, as evidenced by the corresponding letter from ForteBank JSC. According to paragraph 13 of Article 163 of the CPC of the Republic of Kazakhstan, the seizure of property is canceled when this measure is no longer necessary. The cancellation of the seizure of property authorized by the investigating judge at the stage of the pre-trial investigation is carried out on the basis of a reasoned decision of the criminal prosecution body with the consent of the prosecutor. According to paragraph 4 of Article 161 of the CPC of the Republic of Kazakhstan, it is not allowed to take measures to ensure the execution of a sentence in terms of a civil claim for seizure of the property of a suspect, accused or persons who are legally financially responsible for their actions, who are creditors of financial organizations whose obligations are subject to restructuring in cases provided for by the laws of the Republic of Kazakhstan regulating. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In this regard, representative Sarzhanov G.T., in the interests of R.Zh.T., fully supporting R.Zh.T.'s application, asks him to satisfy and release from arrest the immovable property in the form of an apartment located at the address: Almaty, mkr. A, 8, sq.18, owned by R.Zh.T. In court At the meeting, the representative of ForteBank JSC, A.A. Amirov, did not object to R.Zh.T.'s application to the court, and also showed that R.Zh.T. is a debtor under a bank loan agreement to ForteBank JSC and in order to refinance his loan, it is necessary to remove all encumbrances on R.Zh.T.'s property. After the reorganization of Alliance Bank JSC, all its obligations were transferred to ForteBank JSC, and Alliance Bank JSC was re-registered on 10.02.2015. ForteBank JSC is the legal successor of Alliance Bank JSC. There are no court decisions regarding the recovery of sums from R.J.T. according to the verdict of the Medeu District Court of Almaty dated 05/07/2009. The Bank has not filed claims for damages against R.J.T. in the framework of the criminal case against R.J.T. under Article 177, Part 3, paragraph "b" of the Criminal Code of the Republic of Kazakhstan (as amended by the Law of 07/16/1997). Requests the court to satisfy the application of R.J.T. in order for the bank to be able to refinance the loan of R.J.T.

The court, having listened to the representative by proxy of Sarzhanov G.T., who supported the application, the prosecutor, who considered the application to be satisfied, the representative of ForteBank JSC, having studied the application and examined the materials, considers that R.J.T.'s application for exemption from seizure of immovable property in the form of an apartment located at the address: Almaty, mkr. A, 8, sq.18 is subject to satisfaction on the following grounds. According to the materials provided and examined in court, it was established that the immovable property in the form of an apartment located at the address: Almaty, Aksai-2, 8, sq.18 belonged and still belongs to R.Zh.T.. The seizure of the specified immovable property in the form of an apartment located at the address: Almaty, mkr.A., 8, sq.18 was imposed as part of a criminal case against R.Zh.T. under art.177, part 3, paragraph "b" of the Criminal Code of the Republic of Kazakhstan (as amended by the Law of 07/16/1997), in order to secure a verdict in terms of a civil claim, other property penalties, or possible confiscation of property. By the verdict of the Medeu District Court of Almaty dated May 7, 2009, R.J.T. was found guilty of committing a crime under Article 177, part 3, paragraph "b" of the Criminal Code of the Republic of Kazakhstan (as amended by the Law of 07/16/1997) and sentenced to 5 years in prison with confiscation of 4 property. 63 of the Criminal Code of the Republic of Kazakhstan, the imposed punishment is considered conditional with a probation period of 2 years. According to the above-mentioned court verdict of 05/07/2009, there are no property penalties or civil action, and the court verdict does not specify which property of the convicted R.J.T. subject to confiscation, the court did not specify the list of confiscated property in the operative part of the verdict. As established in court, according to the testimony of the representative of ForteBank JSC, A.A. Amirov, Alliance Bank JSC, subsequently ForteBank JSC did not apply to the court in civil proceedings to recover the amount of damage from R.Zh.T. and to date, there is no court decision to recover the amount from R.Zh.T. By the resolution of the Medeu District Court of Almaty dated June 23, 2010 on the basis of a submitted submission from the criminal executive Inspectorate of the Medeu district of Almaty in respect of convicted R.Zh.T.  suspended sentence was lifted and criminal record was dropped. In these circumstances, the court considers that there are no grounds for refusing to satisfy R.J.T.'s application for release from seizure of immovable property in the form of an apartment located at the address: Almaty, mkr. A, 8, sq.18, due to the absence of any property penalties in the considered criminal case against R.J.T. under Article 177, part 3, paragraph "b" of the Criminal Code of the Republic of Kazakhstan (as amended by the Law of 16.07.1997) by a court verdict, within the framework of which the property of R.J.T. was seized. By virtue of Article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of his property, except by a court decision. According to Article 264 of the Civil Code of the Republic of Kazakhstan, the owner has the right to demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession.

Exemption from seizure of immovable property encumbered in the framework of a criminal case

In this case, there is no need to seize the property of R.J.T. In accordance with Article 163 of the Criminal Procedure Code of the Republic of Kazakhstan, the seizure of property is canceled when this measure is no longer necessary. On the basis of the above and guided by Article 26 of the Constitution of the Republic of Kazakhstan, Article 264 of the Civil Code of the Republic of Kazakhstan, Article 163 of the Criminal Procedure Code of the Republic of Kazakhstan, the court RULED: R.J.T.'s application for release from seizure of immovable property in the form of an apartment located at: Almaty, mkr.A, 8, sq.18 - satisfy. The resolution of the investigator of the Medeu district police Department of Almaty, V. Sorokin, dated November 24, 2008, authorized by the prosecutor of the Medeu district, E.M. Sybankulov, regarding the seizure of property belonging to R.Zh.T., should be canceled. To remove the arrest from real estate in the form of an apartment located at the address: Almaty, mkr. A., 8, sq.18, belonging to R.Zh.T., imposed by the decree of the investigator of the Medeu district police Department of Almaty, Sorokin V. dated November 24, 2008.

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