Making private rulings in administrative proceedings

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.

According to part three of Article 1 of the CPC, the provisions of the CPC apply in administrative proceedings, unless otherwise provided for by this Code.

In accordance with the first part of Article 270 of the CPC, when cases of violations of the rule of law are identified, the court has the right to issue and send a private ruling, and if violations are committed by government agencies, officials and civil servants, the court issues and sends a private ruling to relevant organizations, officials or other persons performing managerial functions, who are required to inform within one month about the measures they have taken. Making private definitions is one of the guarantees for the implementation of tasks aimed at strengthening law and order, and forming a respectful attitude towards the law and the court.

Private rulings regarding housing commissions of administrative bodies are sent by the courts to a higher authority for appropriate response measures.

The practice of making private definitions for the analyzed category shows that courts make private definitions for violations established by court decisions.

A private definition as a response measure to violations identified during the consideration of an administrative case should not duplicate violations identified by a court decision.

When making private definitions to government agencies, the following factors must be taken into account::

· Systematic violations of housing legislation on the same issue;

· significant legal consequences resulting from violations for the participant in the administrative procedure.

An example of making a private determination on systematic violations of M&E, giving rise to new legal proceedings.

M.'s claim to the Management of the court's decision of May 23, 2022 was satisfied. The decision of the housing commission under the Mayor's Office of Astana on the exclusion of M.A. (daughter), A.B. (granddaughter), D.B. (granddaughter), Z.B. (granddaughter), V.B. (granddaughter) from the family of Z.A. was declared illegal.

The Housing Department is charged with the obligation to adopt an administrative act on the restoration of the listed persons in the lists in need of housing from the state housing stock. In violation of the norms of housing legislation, the defendant removed M. and her four minor children from the register of those in need, who fall under the criteria of a single-parent family and a large family.

The violations of the law resulted in a significant violation of the rights of the plaintiff and her minor children. At the same time, the court noted that similar violations against the plaintiff's family had been committed by the authorized state body before.

By the decision of the Saryarkinsky District Court of Astana dated May 4, 2017 on the claim of Z. The order to move the queue was declared illegal and the Department is charged with the duty to eliminate existing violations of its rights, freedoms or legitimate interests.

Despite this, the Office continues to violate the constitutional rights of the plaintiff's family and does not fulfill the obligations stipulated in article 25 of the Constitution of the Republic of Kazakhstan, which generates new legal disputes.

A private definition has been brought to the attention of the Akimat of Astana about the revealed violations of the rule of law for taking appropriate measures.

According to the response of the Mayor's Office of Astana, the requirements of the court's decision and private ruling were fulfilled by including the following persons in the family: M.A. (daughter), A.B. (granddaughter), D.B. (granddaughter), Z.B. (granddaughter), V.B. (granddaughter). This resulted in the restoration of M. in the previously existing order of priority, issued to the mother since June 19, 2007.

As of 04/11/2023, the number of M.'s queue is No. 139. M.'s housing will be provided as soon as the housing is received by the communal housing fund.

Since the private definition was made in order to eliminate deficiencies in further work, the court's conclusions on the assessment of housing sufficiency were taken into account and will be applied in housing provision activities from the Housing Stock Fund.

Significant legal consequences have arisen as a result of a violation of the administrative procedure

In the case of R.'s claim to the Department for the recognition of illegal inaction of the SMAS, a private ruling was issued to the akim (June 21, 2022). When considering the case, the court found the following violations of current legislation.

The plaintiff, as a serviceman, has been on the housing waiting list since June 29, 2010. On 03/29/2021, an application was submitted for participation in the State Program of Housing and Communal Development "Nurly Zher" for 2020-2025 in the direction of "Shanyrak". On 07/29/2021, according to the results of the distribution of housing, the plaintiff was assigned an apartment for the conclusion of a purchase agreement on 07/30/2021.

The Bank has sent the documents to the Department.

By virtue of the first part of Article 76 of the CPC, the term of the administrative procedure initiated on the basis of an appeal is fifteen working days from the date of receipt of the appeal, unless otherwise provided by the laws of the Republic of Kazakhstan.

In accordance with article 77 of the CPC, an administrative body or official, having considered an administrative case, makes one of the following decisions on:

adoption of an administrative act; termination of an administrative procedure.

Upon completion of the consideration of the administrative case, a written decision is made, which is sent to the participant in the administrative procedure.

However, the contract was not concluded within the time limit prescribed by law, as well as no written decisions were submitted to the plaintiff on the refusal to conclude the contract or the refusal to provide housing, which indicates the inaction of the defendant.

In addition, on 12/28/2021, through the 1414 call center, the plaintiff received a message about being removed from the queue, while the requirements of paragraph 3 of Article 73 of the Law were also not fulfilled by the defendant.

These violations were the basis for satisfying the plaintiff's claims to recognize the defendant's inaction as illegal.

In all cases, responses on the execution of private definitions have been provided within the time limit prescribed by law.

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;

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 claim in court 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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