Housing disputes related to inclusion and exclusion from the waiting list from the state housing fund
There has been an increase in the number of lawsuits caused by an increase in petitions to the court from applicants (socially vulnerable segments of the population, civil servants and employees of budget organizations) demanding that they be reinstated in the housing queue, reverse the decision to refuse to legalize the rental agreement, as well as military personnel and law enforcement officers, CSO who have mortgage obligations, and challenge refusal of housing payments by housing commissions.
The latter is due to the introduction of amendments to legislation improving the situation of this category of persons in terms of the use of housing payments to repay previously received mortgage housing loans.
This increase indicates an increased activity of citizens in using the norms of the APPC to protect violated rights.
In the field of Housing and Communal Services, the plaintiffs are challenging the actions of the State Institution "Department of Housing Relations of Taldykorgan" of the Taldykorgan Akimat. This situation is caused by exclusion from the housing waiting list from the Housing Fund and the failure to provide housing commission decisions on the right to live in previously provided apartments in the periods from 2009 to 2020.
The courts have established illegal actions to de-register on various grounds, not to submit the issue of providing apartments when they are issued for consideration by the housing commission.
Whereas at present, the plaintiffs as part of the family live in these apartments, bear the burden of housing maintenance, and pay for utilities.
To resolve this issue promptly, local courts have repeatedly held meetings with the participation of the mayor of the city, his deputies, representatives of the akimat of the region, the head of the Housing Inspection Department, the deputy prosecutor of the region and representatives of the Prosecutor's office of the city, the National Security Committee and the Anti-Corruption Service of the region.
This type of dispute is regulated by Chapter 10 of the Law on Housing Relations, in particular Article 73 of the Law, according to which candace, who have acquired citizenship of the Republic of Kazakhstan, are not subject to de-registration in the order of resettlement to regions determined by the Government of the Republic of Kazakhstan, orphans and children left without parental care, single-parent families, mothers with many children, awarded pendants "Altyn alka", "Kumis alka" or those who previously received the title of "Mother Heroine", as well as those awarded the orders of "Maternal Glory" of I and II degrees, large families, recognized as needing housing and registered in accordance with the procedure established by this Law, prior to receiving housing.
The fulfillment of obligations assumed by the State and measures of social support in the form of housing provision cannot be made dependent on the realization by a citizen of his right to choose a place of residence within the territory of the Republic of Kazakhstan.
For reference:
By the decision of the SMAS of Almaty dated April 19, 2022, T.'s claim to the KGP was satisfied: it was declared illegal to de-register T. in need of housing, who was on the list of those in need of housing and registered in the category of "orphans" with a family of one person;
The KGP is charged with the obligation to eliminate the violation in full within one month from the date of entry into force of the decision, which should be reported to the court (No. 7594-22-00-4/514).
It was established that by the decision of the akim on 06/14/2013, T. was recognized as the guardian.
By the resolution of the Housing Commission under the Akimat of Almaty dated 09/10/2013, T. was registered for those in need of housing from the communal housing stock in the category of "orphaned children". On 17.01.2022, T. received a letter from the defendant for no. I-6804 dated 28.12.2021 about her removal from the register of those in need of housing. On January 25, 2022, T. appealed to the defendant about disagreement with the specified decision. On 02/09/2022, the deputy head of the defendant gave a written refusal. she filed a lawsuit with the court, arguing that she was registered in the category of "orphaned children", recognized as in need of housing, but the defendant's staff, without explaining the procedure to her, illegally removed her from the queue, thereby violating her rights.
In the response, the defendant asked to dismiss the claim, since, according to the results of the inventory, it was established that since 09/08/2021, the plaintiff has registered his place of residence in the Almaty region, Alakol district, the village of Usharal.
The court of first instance, satisfying the plaintiff's claims, proceeded from the fact that she had been a child without parental care since the age of 14, had been in the care of R.'s guardian since June 14, 2013, and was also placed in the priority category of "orphaned children" in accordance with the established procedure.
She has no registered ownership of housing in the Republic of Kazakhstan, which is confirmed by EGOV certificates.
According to part 2 of article 3 of the Convention on the Rights of the Child (New York, November 20, 1989), ratified by the Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994, the participating States undertake to provide the child with the protection and care necessary for his well-being, taking into account the rights and obligations of his parents, guardians or other persons who are legally responsible for it, and for this purpose take all appropriate legislative and administrative measures.
According to paragraph 1 of article 20 of this Convention, a child who is temporarily or permanently deprived of his family environment or who, in his own best interests, cannot remain in such an environment has the right to special protection and assistance provided by the State.
In accordance with subparagraph 6) of paragraph 1 of Article 68 of the Law, orphans who have not reached the age of twenty-nine and have lost their parents before adulthood belong to socially protected segments of the population. Moreover, paragraph 1 of article 73 of the Law stipulates that orphans and children left without parental care are not subject to de-registration.
Thus, according to the court, moving from Almaty to the Almaty region cannot be a reason for depriving the plaintiff of the right to provide housing, as he was left without parental care.
Confirming that the plaintiff has an unrealized right to provide housing in this category, the defendant unreasonably withdrew from the housing queue.
Another example is related to the de-registration of persons in need of housing from the Housing Fund, due to the fact that the grounds for providing housing have disappeared.
For reference: By the decision of the SMAS of Almaty dated October 12, 2021, left unchanged by the decision of the SCAD of the Almaty City Court dated February 28, 2022, A.'s claim was satisfied.
It was decided to declare illegal the actions of the State Committee for the Refusal of registration as a person in need of housing from the communal housing stock of Almaty in the category of "Large families";
The GKP is charged with the obligation to eliminate the violation of the rights and legitimate interests of A.E. within 15 days from the date of entry into force of the court's decision (No. 7594-21-00-4/631). It is established that A. has been living in Almaty since 1986, where he has permanent registration.
She is married and has four young children. Since 06/01/2020, the plaintiff's family has been granted the status of a "large family". Due to the lack of her own housing, the plaintiff applied to the defendant for registration as needing housing from the communal housing stock of Almaty in the category of "Large families".
However, the defendant refused to register, arguing that the plaintiff was registered in the Almaty region in 2019, which indicates that she has lived in Almaty for less than three years. To the plaintiff's request for clarification of the reasons for the refusal, a response was issued with reference to the existence of a break in the permanent registration of residence in Almaty.
Paragraph 1 of article 67 of the Law on Housing Relations is indicated as the legal basis.
The provisions of articles 67, 69, 72 of the Law provide that housing from the communal housing stock is provided for use by citizens of the Republic of Kazakhstan who permanently reside in this locality.
The court, satisfying the claim, pointed out that before contacting the defendant, the plaintiff had been permanently residing in Almaty since birth and for more than thirty years, was a mother of many children, and did not have her own home. These circumstances indicate that there are grounds to classify the plaintiff as a citizen who is subject to registration as needing to provide housing from the communal housing stock.
The defendant's arguments about the fact of interruption of the plaintiff's permanent residence in Almaty were found by the court to be unfounded in accordance with the norm of part 1 of Article 16 of the Civil Code, the citizen's place of residence is the locality where the citizen permanently or predominantly resides.
The legislation on housing relations refers only to the condition of permanent residence of the applicant in the locality for at least three years.
Thus, the court reliably established the fact of the plaintiff's permanent residence in Almaty for at least three years, which certainly allows the plaintiff to be registered as needing housing from the communal housing stock of Almaty in the category of "large families", which is provided for in Article 73 of the Law.
Examples from the practice of the SCUD of the Armed Forces on claims against MIO
1) according to B.'s claim to challenge the order of the Department dated November 24, 2020 regarding her removal from the queue of those in need of housing, the court, assessing the defendant's arguments, indicated that failure to submit a separate application for changing the category (in this case from "oralmans" to "disabled") cannot be grounds for deprivation the plaintiff's right to housing and removal from the waiting list for those in need (No. 6001-21-00-6ap/82);
2) according to A.'s claim to challenge the Management's refusal dated 09/02/2021 to be placed in the queue for the category "employees of budgetary organizations" by the court on June 7, 2022, the defendant's attention was drawn to the following circumstances (No. 6001-22-00-6ap/92).
Subparagraph 1) Paragraph 14 of the Regulation "On the State institution "Department of Housing and Housing Inspection of Astana" provides for management rights, including the right to request documents required in accordance with the legislation of the Republic of Kazakhstan from citizens applying for housing from the state housing stock, as well as to verify the authenticity of submitted documents;
to request from government agencies, other organizations and enterprises, regardless of the form of ownership and individuals, the necessary information to perform the tasks assigned to the Department.
Thus, the Regulation provides for rights that, when verifying the fact of residence in cities of national significance and the capital for at least three years, Management has the opportunity to check submitted extracts from the workbook and pension account, if necessary, requesting the necessary information from government agencies and organizations, regardless of their forms of ownership, and receiving them. from the relevant government information systems through the e-government gateway.
In addition, in accordance with paragraph 1 of Article 16 of the Civil Code, the place of residence is the locality where the citizen permanently or predominantly resides.
It follows from this rule that it is the actual residence, and not registration, that is the fundamental fact in determining the place of residence.;
3) according to L.'s claim to challenge the refusal of the Department of June 28, 2021 to register in the category of "large families", the board, while upholding the judicial acts, noted that since there is no clear definition of the concept of "habitable housing" in the legislation, the courts correctly applied the provisions of paragraph 1 of Article 75 of the Law on housing relations, according to which the standard of the usable area of a dwelling should be at least fifteen square meters and no more than eighteen square meters of usable area per person (No. 6001-22-00-6ap/10).
In this case, the defendant, referring to subparagraph 6) of paragraph 8 of the Rules for Registering Citizens of the Republic of Kazakhstan in Need of housing from the State housing Stock or housing Rented by a local executive body in a private housing stock, approved by Resolution of the Government of the Republic of Kazakhstan dated June 26, 2012 No. 856, justified his arguments by the fact that the plaintiff did not The sanitary and epidemiological conclusion is presented.
Recognizing these arguments as untenable, the board pointed out that the plaintiff had filed an application for registration of those in need of housing in the category of "large family" due to the lack of housing by right of ownership, and not because the existing housing did not meet sanitary and epidemiological requirements.
In this regard, the provision of the Rules on the provision of a sanitary and epidemiological examination report is not applicable to the legal relations of the parties.
Another example, by the decision of the SMAS dated July 19, 2023, S.'s claim to the akim, the State Duma for forcing a change in the category in the queue for housing from the Housing Fund was satisfied (No. 3594-23-00-4/644). The defendants are required to change category C. in the queue of those in need of housing from the GZHF from "single-parent families" to the category of "orphans and children left without parental care and under the age of twenty-nine who lost their parents before adulthood" from the date of registration on July 8, 2014 within one month from the date of registration. entry of this court decision into legal force.
For reference: In satisfying the plaintiff's claims, the court proceeded from the requirements of articles 67, 68, 69, 71, 74 of the Law on Housing Relations (as amended at the time of the plaintiff's registration of those in need), stating that it was reliably established that at the time of registration of those in need of housing from the GZHF S.V. was She graduated from an orphanage, and therefore had to be put on the waiting list for the "orphaned children" category.
In addition, according to the Decree of the Government of the Republic of Kazakhstan No. 1882 dated December 22, 2000 "On employment and housing for graduates of educational institutions from among orphans and children left without parental care" (in force at the time of the plaintiff's release from the orphanage), the akims of the regions, Astana and Almaty are responsible for accepting measures to provide employment and housing for graduates of orphaned children and children left without parental care.
However, the MIO did not take such measures, which, in turn, indicates non-compliance with the requirements of the above-mentioned decree of the Government of the MIO regarding the registration of the plaintiff in need in the appropriate category, which led to a violation of her rights and legitimate interests.
The court found that the administration of the orphanage, the plaintiff's guardian, did not take timely measures to establish S. She did not submit documents to the akimat for registration as needing housing from the communal housing fund, and the akimat did not monitor the work of government agencies accountable to it and did not register her, thereby violating her rights and legitimate interests.
As a result of the inaction of the GU administration, which resulted in the failure to submit relevant documents to the MIO addressed to S., as needing housing from the housing stock or housing rented by a local executive body in a private housing fund, in the category of "orphaned children", the plaintiff was deprived of the right to be placed on the waiting list for housing from the public housing fund. the category of "orphan", which indicates a complete lack of proper interaction between the structural units of government agencies, as well as their complete inaction.
At the same time, the court did not find that S. was guilty of not being registered and included in the queue for housing in the category of "orphaned children", since the orphanage, which, despite its duties as a guardian, did not timely place her in the queue for housing from the Housing Fund and did not file a statement about this.
Initially, S.V. independently applied to the akimat with a question about registering those in need of housing in 2014.
According to paragraph 12 of the Rules for Registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock, approved by Resolution of the Government of the Republic of Kazakhstan dated June 26, 2012 No. 856, in force at the time of filing the application by the plaintiff, paragraph 5 of Article 71 of the Law of the Ministry of Economic Development and Social Development are required to take inventory of the lists the priority of citizens of the Republic of Kazakhstan who are registered as those in need of housing from the communal housing stock.
In the case of plaintiff S., the housing commission of the Ministry of Regional Development, having considered her application dated July 08, 2014 for housing, did not find out which category of socially vulnerable segments of the population the applicant belongs to, and did not resolve the issue of registering her as an orphan child in need of housing from the GRF, which, in particular, in turn, it indicates non-compliance with the requirements of the Resolution of the Government of the Republic of Kazakhstan No. 1882 dated December 22, 2000. The SCUD of the regional court agreed with these conclusions of the court, leaving the decision of the court of first instance unchanged.
Judicial acts have not been appealed in cassation. Upon entry into force, the court's decision was enforced by changing category C. in the queue of those in need of housing from single-parent families to the category of "orphans and children left without parental care and under the age of twenty-nine who lost their parents before adulthood" from the date of registration on July 08, 2014.
In accordance with article 14 of the CPC, an administrative body or official is prohibited from denying, restricting, or terminating the right of a participant in an administrative procedure, as well as imposing an obligation on him in order to comply with requirements not established by the legislation of the Republic of Kazakhstan.
For reference: By the decision of the SMAS of October 13, 2022, which was left unchanged by the decision of the appellate instance of January 31, 2023, K.'s claim to the Office for forcing those in need to receive housing from the communal housing stock was satisfied.
Since May 15, 2009, the plaintiff has been on the waiting list for those in need of housing from the communal housing stock in the category of "employees of a budget organization."
According to the certificate of disability, the plaintiff has a disability of the first group. On July 19, 2022, the plaintiff applied to the Department for registration as a "disabled person". August 5, 2022
The Department provided a response in which it refused to register the plaintiff in the queue of those in need of housing from the moment the disability was established and informed that if she applied, she would be registered at the end of the queue, that is, from the moment she applied. K. filed a lawsuit, arguing that she was in the queue for She has been living for more than 12 years, from 2009 to 2022 as a public sector employee, in 2018 she was diagnosed with a disability of the first group.
The plaintiff considers the defendant's refusal, indicating that budget employees will be transferred from the queue to the disability queue from the moment of application, to be illegal. In satisfying the claims, the court argued that the defendant had unlawfully refused to register the plaintiff in the housing waiting list from the moment the disability was established.
The plaintiff's written application and the provision of a disability certificate of the first group is another reason for the Office to register the plaintiff for housing from the Housing Fund.
By virtue of article 69 of the Law, citizens of the Republic of Kazakhstan who do not have permanent housing from the communal housing stock in a given locality are recognized as needing housing from the state housing stock if they do not have a dwelling by right of ownership in the territory of the Republic of Kazakhstan when registering and at the time of providing housing from the communal housing stock or housing State Enterprise Fund;
The plaintiff's written application and the provision of a disability certificate of the first group is another reason for the Office to register the plaintiff for housing from the Housing Fund.
By virtue of article 69 of the Law, citizens of the Republic of Kazakhstan who do not have permanent housing from the communal housing stock in a given locality are recognized as needing housing from the state housing stock if they do not have a dwelling by right of ownership in the territory of the Republic of Kazakhstan when registering and at the time of providing housing from the communal housing stock or housing State Enterprise Fund;
they do not have a home by right of ownership in this locality when registering and at the time of providing housing from the housing stock of a state institution; they do not have a rental home provided without the right to buy.
In accordance with article 68 of the Law, socially vulnerable segments of the population include persons with disabilities of the first and second groups.
Thus, the court found that A.K. is a person who has the right to receive housing from the housing Fund, belongs to socially vulnerable segments of the population who have the right to receive housing from the state housing fund.
In this case, there were no grounds for removing the plaintiff from the register of those in need of housing from the housing stock or housing rented by the MIO in a private housing stock, provided for in article 73 of the Law.
By the decision of the Cassation Board dated October 26, 2023, judicial acts of local courts were upheld (No. 6001-23-00-6ap/642).
Procedure of the case proceedings
According to the provisions of Articles 146, 148 of the CPC, an administrative case is considered and resolved within a reasonable time, but not more than three months from the date of filing a claim.
The trial is conducted according to the rules of the CPC, with the exception of the specifics established by Article 147 of the CPC.
The court, with the consent of the parties, has the right to consider the administrative case in written proceedings within a reasonable time, but not more than three months from the date of filing the claim.
After the registration of the claim, at the stage of the preliminary hearing and trial, the court, as part of the active role of the court, provides assistance in shaping the correct legal position of the plaintiffs.
Basically, the cases of this category were considered by the courts of the republic in compliance with the above requirements.
At the same time, the analysis revealed a gross violation of the procedural law when considering disputes of this category in the following case.
For reference: E. filed a lawsuit with the Russian State University of Economics (No. 2794-22-00-4/654). By the decision of the SMAS of the West Kazakhstan Region 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 decision of the SCAD of the West Kazakhstan Region dated January 31, 2023, the decision of the court of first instance was left unchanged.
By the decision of the SCAD of the Supreme Court of November 2, 2023, the decision of the SCAD of the West Kazakhstan Region was canceled, the case was sent to the NSR to the regional court in a different composition of the court.
It was established that in the court of appeal, the specified case concerning housing payments was considered by a judge of the regional court in written proceedings alone, i.e. in an illegal composition, which was the basis for the cancellation of the decision with the referral of the case for a new hearing in a different composition of judges, without discussing the correctness of judicial acts adopted by local courts.
The judge of the appellate instance did not take into account the requirements of part four of Article 24 of the CPC, by virtue of which administrative cases in the court of appeal are considered by a collegial panel of an odd number (at least three) judges, one of whom is the presiding judge.
The judge alone examines private complaints against rulings issued by the courts. Thus, the procedure for considering administrative cases at the appellate instance stage, including in terms of the composition of the court, is regulated by the CPC, which excludes the sole consideration of appeals against decisions of the courts of first instance.
Jurisdiction
When considering cases on disputes arising from housing relations, compliance with the rules of jurisdiction, the filing of a claim by persons who have the right to claim, and the correct definition of the subject of the claim are of particular importance for dispute resolution.
Jurisdiction is determined according to the rules of Articles 102, 103 and 106 of the CPC. At the request of the plaintiff, cases referred to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the plaintiff's place of residence, with the exception of cases under the jurisdiction of specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
By virtue of article 103 of the CPC, military courts consider administrative cases on claims of military personnel of the Armed Forces of the Republic of Kazakhstan, other troops and military formations, citizens undergoing military training, if the defendant is a military command, a military unit, with the exception of cases under the jurisdiction of other specialized courts.
If a military court has not been established on the territory of the relevant administrative-territorial unit, administrative cases referred to its jurisdiction 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 EHRs.
Thus, the TJV is assigned to active military personnel and the jurisdiction of disputes over them is attributed to the competence of military courts. Whereas EHRs are appointed upon the dismissal of a serviceman and in connection with the loss of the status of one of the parties to the dispute, special jurisdiction no longer applies.
Based on the stated practice of the courts, we note that the correct definition of jurisdiction is important due to the constitutional norm and its observance in administrative cases must be ensured in accordance with articles 102, 103 of the CPC.
The circle of persons involved in the case
According to article 26 of the CPC, the participants in the administrative process are the plaintiff, the defendant, the person concerned and the prosecutor.
At the same time, in housing disputes, by virtue of the provisions of article 31 of the CPC, the prosecutor, as a rule, does not participate. The circle of persons involved in the case is determined by the plaintiff when filing a claim with the court. The persons who have the right to file a claim in court are specified in articles 67-68 of the Law.
In a preliminary hearing, the court determines the circle of persons whose rights, freedoms or legitimate interests may be affected by an administrative act, administrative action (inaction), and subsequently they are involved as interested parties in accordance with Article 14-23 of the CPC.
The analysis showed that according to the claims of military personnel, law enforcement officers and CSOs related to payments of housing and communal services, the relevant territorial administrative body acts as defendants, under which housing commissions have been established that have issued decisions (military units, institutions of the CUIS, DP, line departments, security services, etc.). If necessary, it is involved as the person concerned is a higher government agency (Committee, Ministry).
According to the claims of citizens, the akim of the administrative-territorial unit and/or the housing and communal services department, the housing relations department are involved in the MIO as a defendant.
According to subparagraph 12) of paragraph 1 of Article 31 of the Law "On Local Public 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 communal housing and its distribution.
By virtue of paragraph 1 of Article 77 of the Law, a dwelling from a communal housing stock or a dwelling rented by a local executive body from a private housing stock is 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.
Housing commissions of the MIO, which operate on a permanent basis, are established under the MIO.
The authorized body is the Ministry of Economic Development, which provides housing.
It is necessary to correctly identify the defendants in each specific case, based on the subject matter and grounds of the plaintiff's claim, the defendant's objections and the laws to be applied, the legal status, and the powers of authorized bodies.
When suing an improper defendant in court in accordance with Articles 16, 116 of the CPC, in order to avoid red tape in the dispute, the plaintiff should explain the procedure for replacing the improper defendant with the appropriate one in accordance with Article 29 of the CPC.
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, the akim or the Housing and Communal Services Department, there are no difficulties or problematic issues with the execution of the decisions that have entered into force.
Conciliation procedures
The APPC provides for the possibility of conducting conciliation procedures for disputes arising from public law relations, however, reconciliation of the parties is allowed if the defendant has administrative discretion.
This provision of the legislation is justified due to the fact that the elimination of violations of the rights of a citizen or a legal entity is possible by canceling the appealed act or terminating any action by the state body or official himself.
The parties may, on the basis of mutual concessions, completely or partially end the administrative case by concluding an agreement on reconciliation, mediation, or dispute settlement through a participatory procedure at all stages (stages) of the administrative process until the court is removed for adjudication.
The adoption by the court of measures to reconcile the parties and assist them in settling the dispute at all stages of the process follows from the tasks of administrative proceedings. Taking a neutral position regarding the claims of the parties, the court explains to the parties their right to conduct conciliation procedures and the legal consequences of concluding such agreements.
The analysis showed that the most common type of completed cases in the analyzed category in connection with reconciliation are cases in which the parties have concluded mediation agreements.
In general, rulings on the approval of reconciliation and mediation agreements are executed voluntarily by the defendants within the prescribed time frame. There are isolated facts of the court imposing monetary penalties on the defendants for non-compliance with the court's ruling in accordance with part five of Article 127 of the CPC.
A significant number of cases are considered in which the illegality of actions was established by the court or recognized by the defendant himself. The data indicate that the defendants incorrectly applied the norms of housing legislation and violated the prohibition on abuse of formal requirements.
At the same time, the application of the principles of the APPC (the active role of the court, fairness, proportionality), measures of procedural coercion (monetary penalties) and conciliation procedures in the framework of administrative proceedings significantly improved the quality of consideration of cases in the analyzed category.
Thus, the implementation of the principle of an active role contributes to the resolution of the dispute by the court or the withdrawal of the claim due to the peaceful settlement of the dispute or clarification of the prospects for the consideration of the case. For example, the defendant himself cancels the disputed act or performs actions that eliminate the existence of a dispute.
The return of claims.
Of those returned on other grounds, the largest number are refunds on the grounds provided for by the Legislation of the Russian Federation.:
- subparagraph 11) of the second part of Article 138 of the CPC - the case is not subject to consideration in administrative proceedings.
- subparagraph 15) of the second part of Article 138 of the CPC - the court refused to restore the missed deadline for filing a claim.
- subparagraph 12) of the second part of Article 138 of the CPC - there is a court decision or court ruling on the approval of the agreement that has entered into legal force, passed 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 relations between the parties, and the defendant had not issued any administrative acts against the plaintiffs.
Evidence and proof
Despite the fact that, by virtue of article 129 of the CPC, the burden of proof for contesting claims lies with the administrative body, the body/housing commission has only the data that is in the information exchange systems between government agencies.
M&E, when making decisions, as a rule, does not require additional documents from waiting lists.
At the same time, the nature of evidence in housing disputes requires the provision of evidence, information about which is protected by law or can only be provided by the plaintiff due to its content (mortgage agreements, certificates from banks, certificates from work, studies, service records) or are personal (about the composition of the family).
Thus, as evidence: a) for claims challenging the decisions of the housing commission of the Ministry of Regional Development on exclusion from the waiting list, the plaintiffs may submit - documents on assignment to the waiting list category (service records from personnel management departments, certificates from the place of employment of civil servants, disability certificates, birth certificates for all children, marriage divorce certificates, certificates of registered property rights for all family members, etc.), as evidence of residence (non-departure), the plaintiffs provide certificates from the place of study, from the place of work, witness statements, reports (characteristics) of district police inspectors.
The courts have to request the history of registration at the place of residence from the migration police, since only current data is available in the database of the SIO of the PSO (there is no history with dates of permanent/temporary residence/discharge in the SIO of the PSO), such data is not provided in personal accounts in the Egov web applications.
The defendants are decisions on registration, decisions of the housing commission on withdrawal from the queue, information from the IP kezekte.kz , waiting list case files;
b) in cases of claims challenging decisions of housing commissions in recognition of those in need of housing and payment of EHS, the following documents are submitted to the Housing Commission:
plaintiffs - lease agreements with the right to buy, mortgage agreements, certificates of the presence/ absence of property,
The defendants are decisions of the housing commission on the registration of those in need, on de-registration, on refusal of housing and communal services, certificates of the presence/absence of property, employment orders, service records, orders of dismissal due to the expiration of the contract (etc.), case files of recipients of housing payments - waiting lists.
According to the first part of Article 129 of the CPC, the plaintiff, in accordance with his capabilities, is obliged to participate in the collection of evidence.
Regardless of the type of claim filed, the plaintiff must prove the time when he became aware of the violation of his rights, freedoms and legitimate interests, as well as the amount of damages incurred.
Often, a person who is registered for housing or his representative is not notified by the authorized body about being removed from the queue or about being transferred to another category, whereas, by paragraph 3 of Article 73 of the Law on De-registration, interested persons are notified in writing within ten days after the decision is made, indicating the grounds for de-registration.
In this regard, when considering by the court the issue of restoring the missed time limit for filing a claim as evidence, the defendant must provide a written notice to the plaintiff about being removed from the queue or transferred to another category, with a note about delivery and/or delivery to the interested person.
The absence of such evidence is the basis for recognizing the omission of the deadline for filing a claim in court as valid.
Deadlines for filing a claim (the practice of restoring deadlines)
The time limits for filing a claim are provided for in Chapter 20 of the APPC, in particular, they are regulated by Article 136 of the APPC.
As a general rule, the deadline for filing a claim that has been missed for a valid reason can be restored by the court according to the rules of the CPC.
The reasons for missing the deadline for filing a lawsuit and their significance for the proper resolution of an administrative case are clarified by the court in a preliminary hearing.
Missing the deadline for filing a lawsuit without a valid reason, as well as the inability to restore the missed deadline for filing a lawsuit, are grounds for returning the claim.
At the same time, it should be borne in mind that, by virtue of the fifth part of Article 136 of the CPC, a person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of the administrative act, but no later than one month. one year from the date of its adoption.
In practice, there are cases when the court, applying this rule, does not take into account the actual circumstances of the case.
For reference: T. filed a lawsuit against GU-1, GU-2 for recognition as illegal:
1) taking over the balance of the GU-1 apartment,
2) the resolution of the akim on taking over the balance of property, in part of the apartment.
By the definition of the SMAS dated June 8, 2023, the restoration of the time limit for filing a claim was refused, the claim was returned in accordance with subparagraph 15) of the second part of Article 138 of the CPC.
The definition of the SCAD of the Mangystau region dated July 27, 2023 was left unchanged.
The SCAD of the Supreme Court of January 24, 2024, canceling the ruling of the lower courts and sending the case for a new hearing to the court of first instance, indicated that the court of first instance, refusing to restore the time limit for filing a claim, concluded that the claim was filed more than one year after the issuance of the contested decision, that is, the plaintiff missed a one-year the time limit for filing a claim in court, which, by virtue of part five of Article 136 of the CPC, is suppressive and cannot be restored (No. 6001-23-00-6ap/2368).
However, the court did not take into account the plaintiff's advanced age (78 years), being in rehabilitation after suffering a hip fracture, that is, the plaintiff provided sufficient evidence indicating the validity of the reasons for missing the deadline for filing a lawsuit, and due to the norms of current legislation, the missed deadline was subject to restoration.
Abbreviations used:
- APPK – Administrative Procedural Code of the Republic of Kazakhstan
- CPC – Civil Procedure Code of the Republic of Kazakhstan
- Civil Code of the Republic of Kazakhstan
- NP VS – Normative resolution of the Supreme Court of the Republic of Kazakhstan
- IP – information system
- SCAD VS – Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan
- SCAD or collegium – judicial collegium for administrative cases
- SMAS – specialized Interdistrict Administrative Court - Ministry of Internal Affairs – Ministry of Internal Affairs of the Republic of Kazakhstan
- Ministry of Defense – Ministry of Defense of the Republic of Kazakhstan
- National Security Committee of the National Security Committee of the Republic of Kazakhstan
- GP – General Prosecutor's Office of the Republic of Kazakhstan
- Emergency Department – Department of Emergency Situations
- CDF – Special government agencies
- DP – Police Department
- TJV - current housing payments
- EZHV - one-time housing payments
- GZHF - state housing fund
- MIO – local executive bodies
The main regulatory legal acts regulating housing disputes are:
- The Constitution of the Republic of Kazakhstan;
- APPC;
- GK; - GPK;
- The Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter – the Law on Housing Relations);
- The Law of the Republic of Kazakhstan "On State Property" (hereinafter – the Law on State Property);
- The Law of the Republic of Kazakhstan "On Military service and the status of military personnel" (hereinafter - the Law on Military Service);
- The Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter – the Law on Law Enforcement Agencies);
- The Law of the Republic of Kazakhstan "On Legal Acts" (hereinafter - the Law on Legal Acts);
- NP VS "On judicial practice of applying legislation on the privatization of residential premises from the State housing stock by citizens" dated July 18, 1997 No. 9;
as well as subordinate regulatory legal acts:
- Rules for providing service housing for military personnel, calculating the size, assignment, recalculation, implementation, termination, suspension and resumption of housing payments, approved by Resolution of the Government of the Republic of Kazakhstan No. 49 dated February 12, 2018 (hereinafter referred to as Rules No. 49);
- Rules for Monetary compensation, approved by Resolution of the Government of the Republic of Kazakhstan No. 50 dated February 12, 2018 (hereinafter referred to as Rules No. 50);
- Rules for providing official housing for employees of internal affairs bodies, calculating the amount, appointment, recalculation, implementation, termination, suspension and resumption of housing payments, as well as categories of positions of employees of internal affairs bodies eligible to receive housing payments, approved by Resolution of the Government of the Republic of Kazakhstan dated August 5, 2021 No. 524 (hereinafter referred to as Rules No.524);
- Rules for the privatization of housing from the State housing stock, approved by Resolution of the Government of the Republic of Kazakhstan dated July 2, 2013 No. 673 (hereinafter referred to as Rules No. 673);
- Rules for the provision of public services "Registration and priority, as well as the adoption by local executive bodies of a decision on the provision of housing to citizens in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock", approved by the order of the Acting Minister of Industry and Infrastructural Development of the Republic of Kazakhstan dated August 13, 2021 city No. 441;
- Rules for the transfer of state property assigned to state-owned legal entities from one type of state property to another, approved by Order No. 85 of the Minister of National Economy of the Republic of Kazakhstan dated May 26, 2023;
- Rules for registration of citizens of the Republic of Kazakhstan in need of housing from the state housing stock or housing rented by a local executive body in a private housing stock, approved by Order No. 168 of the Minister of Industry and Construction of the Republic of Kazakhstan dated December 27, 2023.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by the Law on Housing Relations, the rules of the international treaty shall apply.
According to articles 10 and 12 of the Law on Legal Acts, codes have greater legal force than laws; if there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply.
As a general rule, provided for in Article 4 of the Civil Code, Article 43 of the Law on Legal Acts, regulatory legal acts apply to relations that have arisen after their entry into force.
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