On the cancellation of the administrative act and on the assignment of the obligation to appoint one-time housing payments
No.6001-23-00-6ap/858 dated 11/08/2023
Plaintiff: N.E.
Respondent: "Military Unit 1 of the Ministry of Defense of the Republic of Kazakhstan" (hereinafter referred to as the Military Unit)
The subject of the dispute: on the repeal of the administrative act of July 27, 2022, on the obligation to assign one-time housing payments (hereinafter referred to as EHS) from March 4, 2005 to November 20, 2009
Review of the plaintiff's cassation complaint PLOT:
N.E. served under a contract in various positions in a military unit since March 4, 2005.
On September 3, 2020, the plaintiff was discharged from military service in accordance with subparagraph 1) Paragraph 1 of Article 26 of the Law "On Military Service and the status of military personnel" No. 561-IV SAM dated February 16, 2012 (upon reaching the age limit for military service).
On September 7, 2020, by order of the commander of the Military Unit, the plaintiff was paid EHS for the period from November 20, 2009 to December 31, 2017 in the amount of 4,429,056 tenge.
On July 27, 2022, the defendant refused to pay the plaintiff from the date of his enlistment, that is, from March 4, 2005 to November 20, 2009, indicating that paragraph 5 of Article 101-2 of the Law was not retroactive.
"On Housing Relations" (hereinafter referred to as the Law).
N.E. appealed this refusal in court, believing that he was entitled to EHS for the entire period of his service, including for the period from March 4, 2005 to November 20, 2009.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: N.E. was recognized as in need of housing by the decision of the Housing Commission dated November 20, 2009 No. 17.
Since that time, he has been living in the housing provided by the defendant. He was paid EHS from the moment he was declared in need of housing until he was discharged from the service.
Paragraph 5 of Article 101-2 of the Law (as amended by the Law of April 15, 2022) stipulated that military personnel who were recognized as in need of housing but were not provided with it before January 1, 2018, upon discharge from military service, receive housing payments for the entire period of service from the date they were recognized as in need of housing for minus the amount of previously made housing payments.
Paragraph 5 of Article 101-2 of the Law "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" No. 114-VII dated April 15, 2022 is worded as follows: "Military personnel during 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 case of significant and (or) systematic (two or more times) violations of the terms of the contract or for family reasons, they receive housing payments from the date of joining the service in special state bodies, the Armed Forces, other troops and military formations until January 1, 2018, minus the 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."
The conclusions of the courts that N.E. cannot be a recipient of EHRs from the moment he joined the service, since he was discharged from military service and excluded from the lists of Military Unit personnel before the norms of paragraph 5 of Article 101-2 of the Law came into force, are correct.
These and other arguments of the court of appeal are set out in detail in the judicial acts.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
