On coercion to adopt a favorable act on the appointment of housing payments

No. 6001-24-00-6ap/1396 dated April 03, 2025

Plaintiff: J.B.

Respondent: RSU "Military unit of the Ministry of Defense of the Republic of Kazakhstan"

The subject of the dispute: the coercion to adopt a favorable act on the appointment of housing payments

Review of the plaintiff's cassation complaint PLOT:

In the period from May 25, 2007 to April 5, 2022, the plaintiff performed military service under a contract in a military unit.

She was on the list of those in need of housing in the garrison based on a report dated December 12, 2013.

On April 5, 2022, the plaintiff was discharged from military service due to the age limit for military service.

On April 1, 2022, the plaintiff filed an application for payment of one–time housing payments (hereinafter referred to as EHS). April 5, 2022

The plaintiff is approved in the list of recipients of EHRs and settlements.

On May 3, 2022, the plaintiff received a one-time housing payment in the amount of 7,327,727 tenge.

On December 7, 2022, the plaintiff applied to the defendant for the appointment of an EHS from the date of admission to military service from May 25, 2007 to December 11, 2013.

On December 14, 2022, the Housing Commission decided to refuse to implement the EHR for the required period.

The plaintiff, exercising the right provided for by law, appealed to the court with the above-mentioned administrative claim, arguing that she did not receive the one-time housing payments in full. The order on the appointment of the received one-time housing payments was issued at the time of the new version of the law.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: judicial acts in this case are upheld.

Conclusions: according to paragraph 5 of Article 101-2 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter – Law) military personnel for periods of housing insecurity from the state housing stock upon discharge from military service upon reaching the age limit for military service, for health reasons, due to staff reductions, upon expiration of the contract for military service, in the event of significant and (or) systematic (two or more times) violations in They receive housing payments under the terms of the contract or for family reasons from the day they enter service in special government agencies, the Armed Forces., other troops and military formations before January 1, 2018, minus periods: 1) previously made housing payments; 2) living in a dwelling previously provided from the state housing stock in the territory of the Republic of Kazakhstan or on the right of ownership for each place of service.

Earlier, paragraph 5 of Article 101-2 of the Law was amended:

"military personnel who are recognized as needing housing but not provided with it before January 1, 2018, upon discharge from military service (except in cases of dismissal for negative reasons) receive housing payments for the entire period of service from the date they are recognized as needing housing by special state bodies, the Armed Forces, other troops and military units. formations minus the amount of previously made housing payments."

The plaintiff was dismissed on April 05, 2022, therefore, the norm of the article as amended on the date of dismissal is subject to application.

In accordance with paragraph 1 of Article 4 of the Civil Code, acts of civil legislation are not retroactive and apply to relationships.,

which arose after they were put into effect. The legal force of an act of civil legislation applies to relations that arose before its entry into force in cases where it is expressly provided for by it.

At the same time, according to paragraphs 1 and 2 of Article 11 of the Law of the Republic of Kazakhstan dated April 06, 2016 No. 480-V SAM "On Legal Acts" (hereinafter referred to as the Law on Legal Acts), all regulatory legal acts have direct effect, unless otherwise stipulated in the regulatory legal acts themselves or the acts on their enactment.

No additional instructions are required for the application of the regulatory legal acts that have been put into effect.

According to article 43 of the Law on Legal Acts, the normative legal act does not apply to relations that arose before its entry into force.

Exceptions to the rule of paragraph 1 of this article are cases when the retroactive effect of a normative legal act or part of it is provided for by itself or by an act on the enactment of a normative legal act, as well as when the latter excludes duties imposed on citizens or improves their situation.

In the current version, the first paragraph of paragraph 5 of Article 101-2 of the Law was put into effect by the Law of the Republic of Kazakhstan "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on military service and housing relations of employees of special state bodies and military personnel" dated April 15, 2022. Article 2 of this Law stipulates that it shall enter into force upon the expiration of ten calendar days after the date of the first official publication. At the same time, the legislator did not provide that the entire law or any part of it is retroactive.

Thus, the Law of the Republic of Kazakhstan dated April 15, 2022

"On amendments and additions to certain legislative acts of the Republic of Kazakhstan on military service and housing relations of employees of special state bodies and military personnel" is not retroactive and applies to legal relations that arose after their entry into force.

The right to housing and related payments are a socially significant guarantee of the realization of the housing rights of military personnel by the State.

The State guarantees military personnel the provision of their living quarters in various forms, in accordance with the procedure and conditions established by the norms of housing legislation, namely from the moment they are recognized as needing housing.

Accordingly, paragraph 1 of Article 101-2 of the Law stipulates that the exercise of the right to housing by military personnel (with the exception of conscripts, cadets and cadets of military educational institutions, conscripts, conscripts)

It is carried out from the date of recognition of their need for housing in accordance with the procedure established by this chapter by providing official housing or transferring housing payments to their personal special account, unless otherwise provided for in parts two and three of this paragraph.

It follows from the meaning of this rule that recognition of those in need of housing is a prerequisite for the implementation of the procedure for housing payments to military personnel.

Therefore, it should be noted that the institution of recognition of those in need of housing is mandatory in legal relations both before making the above-mentioned changes to the Law and regarding the current version of the Law.

In this regard, the judicial board considered that the conclusions of the local courts were legitimate and justified, and the plaintiff's arguments about the inconsistency of the conclusions of the local courts with the circumstances of the case were untenable.

Since the circumstances of the case were established correctly by the local courts, and the norms of substantive and procedural law were applied correctly, the collegium did not find any grounds for canceling or changing judicial acts.

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