On the review of the constitutionality of subparagraph 8) of Article 107 of the Law of the Republic of Kazakhstan "On Housing Relations" on the proposal of the Alatau District Court of Almaty

Regulatory Resolution of the Constitutional Council of the Republic of Kazakhstan dated January 21, 2020 No. 1.

     The Constitutional Council of the Republic of Kazakhstan, consisting of Chairman K.A. Mami, life member of the Constitutional Council N.A. Nazarbayev, Council members A.K. Daulbaev, V.A. Malinovsky, I.D. Merkel, R.J. Mukashev, A.A. Temerbekov and U. Shapak, with the participation of:

     Chairman of the Supreme Court of the Republic of Kazakhstan J.K. Asanov,

      Representative of the Presidential Administration of the Republic of Kazakhstan – Deputy Head of the Presidential Administration of the Republic of Kazakhstan E.N. Zhienbaev,

     Representative of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Chairman of the Senate of the Parliament of the Republic of Kazakhstan B.A. Beknazarov,

     Representative of the Mazhilis of the Parliament of the Republic of Kazakhstan – Deputy Chairman of the Mazhilis of the Parliament of the Republic of Kazakhstan G.I. Isimbayeva,

     Representative of the Government of the Republic of Kazakhstan – Minister of Justice of the Republic of Kazakhstan M.B. Beketaev,

      Representative of the Prosecutor General's Office of the Republic of Kazakhstan – Deputy Prosecutor General of the Republic of Kazakhstan M.M. Akhmetzhanov,

     Representative of the Ministry of Industry and Infrastructure Development of the Republic of Kazakhstan – First Vice Minister of Industry and Infrastructure Development of the Republic of Kazakhstan K.A. Uskenbayev,

      Commissioner for Children's Rights in the Republic of Kazakhstan A. Sain

      considered in open session the submission of the Alatau District Court of Almaty on the recognition of unconstitutional subparagraph 8) of Article 107 of the Law of the Republic of Kazakhstan dated April 16, 1997 "On housing relations".

     Having listened to the report of the speaker, member of the Constitutional Council of the Republic of Kazakhstan R.Zh. Mukashev, speeches of the meeting participants, expert– associate Professor of the Caspian University E.V. Nesterova; having read the conclusions of experts, Doctors of Law, professors T.E. Kaudyrov and S.K. Idrysheva; having studied the conclusions of the Kazakh National University named after al-Farabi, Eurasian National University named after L.N. Gumilyova, Karaganda State University named after E.A. Buketov, KAZGUU University Joint-Stock Company, Caspian University, Institute of Legislation and Legal Information of the Republic of Kazakhstan, Republican Bar Association, as well as other materials of constitutional proceedings, having analyzed the legislation and practice of certain foreign countries, the Constitutional Council of the Republic of Kazakhstan

      installed:

      On December 23, 2019, the Constitutional Council of the Republic of Kazakhstan received a submission from the Alatau District Court of Almaty on the recognition of subparagraph 8) of Article 107 of the Law of the Republic of Kazakhstan dated April 16, 1997 "On Housing Relations" (hereinafter – the Law on Housing Relations) as unconstitutional.

     It follows from the submission that the said court is considering a civil case on the claim of the Municipal State Institution "Department of Housing Policy of the City of Almaty" against Islamova P.A. and members of her family (11 people) eviction from an apartment leased from the state housing stock, without providing another dwelling.

      The reason for the plaintiff's appeal to the court was the purchase of an apartment in Almaty by one of the family members of the employer (the son), who created his own family and has children. According to subparagraph 8) of article 107 of the Housing Relations Act, the plaintiff requests the court to evict all of these persons from the rented apartment.

      Having examined the materials of the civil case, the district court found infringement of human and civil rights enshrined in the Constitution of the Republic of Kazakhstan by subparagraph 8) of Article 107 of the Law on Housing Relations, contradicting paragraph 1 of Article 21, paragraph 2 of Article 25 and paragraphs 1 and 2 of Article 26 of the Constitution of the Republic of Kazakhstan.

      In this regard, the court, in accordance with article 78 of the Constitution, suspended the civil case and appealed to the Constitutional Council with a motion declaring subparagraph 8) of Article 107 of the Law on Housing Relations unconstitutional.

     Subsequently, the court supplemented the arguments of its submission, stating that the contested legal norm also contradicts the requirements of the International Covenant on Economic, Social and Cultural Rights, adopted by the United Nations General Assembly on December 16, 1966.

      When verifying the constitutionality of subparagraph 8) of Article 107 of the Law on Housing Relations, the Constitutional Council proceeds from the following.

According to paragraph 1 of Article 1 of the Constitution, the Republic of Kazakhstan asserts itself ... as a social state, the highest values of which are man, his life, rights and freedoms.

     The final decisions of the Constitutional Council have repeatedly stated that Kazakhstan, as a welfare state, undertakes to create conditions for a decent life for its citizens and the free development of individuals adequate to their capabilities. Recognition of higher values means that the state has no more important task than taking care of a person and his material well-being (normative resolutions No. 18/2 of December 21, 2001, No. 3 of April 20, 2004, No. 5 of May 28, 2007, No. 3 of April 10, 2018, and others).

      These constitutional principles, embedded in the content of the state social policy, also apply to the realization of citizens' housing rights, on the level of which the quality of life of the population depends.

      In accordance with paragraph 2 of Article 25 of the Basic Law, conditions are being created in the Republic of Kazakhstan to provide citizens with housing.

     In a market economy, citizens of the Republic of Kazakhstan mostly independently exercise their right to housing (by building a house, making apartment transactions and other means), and the state undertakes to create the necessary conditions for this. Citizens of the Republic may have in private ownership any legally acquired property, including by inheritance (paragraphs 1 and 2 of Article 26 of the Constitution). Housing legislation does not limit the number and size of dwellings owned by a single citizen or a legal entity (paragraph 2 of Article 11 of the Law on Housing Relations).

      At the same time, the Republic of Kazakhstan, represented by government agencies, bears increased responsibility for providing housing to those groups of citizens who have a high degree of housing need and are unable to solve housing problems with their own capabilities. This approach follows from the content of the norm of paragraph 2 of Article 25 of the Constitution, according to which the categories of citizens in need of housing specified in the law are provided for an affordable fee from public housing funds in accordance with the norms established by law.

      On the basis of sub-paragraphs 1), 2) and 7) of paragraph 3 of Article 61 of the Constitution, the Parliament of the Republic is authorized to determine the categories of citizens in need of housing, criteria for their recognition as such, forms, sources, norms, the procedure for providing them with housing and the legal regime for its use. At the same time, legislative regulation of legal relations related to the implementation of paragraph 2 of Article 25 of the Constitution should be carried out from the perspective of maximizing the mission of the welfare state, the supremacy of constitutional human and civil rights and freedoms, and the principles of equality and justice.

      These legal positions of the Constitutional Council correspond to the provisions of generally recognized international acts.

     Thus, the Universal Declaration of Human Rights of December 10, 1948 established that everyone has the right to a standard of living, including food, clothing, housing, medical care and necessary social services, which are necessary to maintain the health and well-being of himself and his family, and the right to security in case of unemployment, illness disability, widowhood, old age or other loss of livelihood due to circumstances beyond his control (paragraph 1 of Article 25).

     The International Covenant on Economic, Social and Cultural Rights, adopted by the United Nations General Assembly on December 16, 1966 and ratified by the Law of the Republic of Kazakhstan dated November 21, 2005, stipulates that the States parties to this Covenant recognize the right of everyone to an adequate standard of living for him and his family, including adequate food, clothing and housing, and the continuous improvement of living conditions (paragraph 1 of Article 11).

      The Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989 and ratified by the resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994, states that the participating States recognize the right of every child to a standard of living necessary for the physical, mental, spiritual, moral and social development of the child, in accordance with take the necessary measures, within the limits of their capabilities, to assist parents and other persons raising children in exercising this right and, If necessary, they provide financial assistance and support programs, especially with regard to food, clothing and housing.

     Thus, the Constitution of the Republic, the country's housing legislation and international acts elevate housing to the rank of a vital value, establish the obligations of the state and the rights of citizens in this area that determine their content. These measures are aimed at creating conditions that guarantee an adequate level of housing provision, including through State support for citizens in special need of housing.

In order to implement the provisions of paragraph 2 of Article 25 of the Constitution, the Law on Housing Relations provides for the institution of renting (renting) housing from the State housing stock, which involves providing housing or part of it to the tenant (tenant) for permanent or temporary possession and use for a fee. The definition of such a legal regime for the provision of housing to a citizen is determined by a number of legal facts, including recognition of him as needing housing and registration, and the occurrence of the order established by the lists. At the same time, as a general rule, the criteria by which citizens are recognized as needing housing are both the absence of a home by right of ownership in the territory of the Republic of Kazakhstan or in a specific locality, and the inconsistency of the existing home with sanitary-epidemiological, technical and other characteristics of housing that determine its suitability for living based on the norms and standards established by the state (subparagraph 29) of article 2, articles 67-69, 71 and 74 of the Law on Housing Relations).

     The general procedure for the provision of housing also provides for compliance with the standards for the provision of housing per person, taking into account the gender, age, physiological and other characteristics of citizens (article 75). The dwelling must be well-maintained, in relation to the conditions of the given locality, and located within the locality where the needy person was registered (Article 76). In addition, article 70 of the Law on Housing Relations prescribes that a citizen (together with his spouse and minor children) has the right to have only one dwelling from the state housing stock in a given locality.

      By establishing a guaranteed minimum size (area) of housing provided from the State housing stock per person and the requirements for housing, as well as the rules for housing allocation, the State adequately fulfills its public law obligations set out in paragraph 2 of Article 25 of the Constitution. Collectively, these elements of the mechanism of legal regulation of housing relations are aimed at meeting the primary biological and social needs of a person and a family, are designed to ensure a fair distribution of housing from the state housing stock and the greatest coverage of citizens in need of it, balance their interests and prevent unjustified excessive provision of housing guarantees to employers (members of their families) to the detriment of the interests of others. having similar needs.

The Constitutional Council believes that the possibility of termination of the lease agreement and eviction of persons from rented housing provided for by the Law on Housing Relations is one of the ways to prevent employers (their family members) from unjustifiably using State housing guarantees. Such a measure is a legal consequence of the termination of the state of need for housing.

      According to subparagraph 8) of Article 107 of the Law on Housing Relations, the eviction of an employer (sub-tenant), members of his family or other persons living together with him without providing another dwelling is allowed if they have acquired another dwelling by right of ownership, regardless of its location.

      Eviction is carried out by a court decision, which corresponds to paragraph 1 of article 25 and paragraph 2 of Article 76 of the Constitution, according to which deprivation of housing is not allowed, except by a court decision, and judicial power extends to all cases and disputes arising on the basis of the Constitution, laws, other normative legal acts, international treaties of the Republic. However, such a decision should be made by the court not on the fact of acquiring ownership of other housing, but on the basis of the general provisions of the Constitution and the principles of regulating housing relations enshrined in it, and taking into account the legitimate interests of citizens in each specific situation.

     The Constitutional Council considers that an obligatory condition for the preservation of a person's right to housing from the state housing stock during the period of permanent or temporary possession and use of housing is the actual situation of a citizen as a needy person. It must be fixed during the entire lease period. During the execution of the rental agreement, the state of housing needs may change, both in the direction of improvement and deterioration, which naturally affects the volume of housing obligations of the state and the demands of citizens. When confirming such a provision, the physiological and other characteristics of the tenant and his family members, their number, the area of the rented and purchased apartment, housing standards and other circumstances determining the primary needs of citizens should be taken into account. A citizen has the right to count on state housing support, even in the case of purchasing other housing, if the person has criteria for recognizing the need for housing.

      This general approach underlies the current housing legislation. Citizens who have shares in other residential premises may be recognized as needing housing (subparagraph 4) 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). Among the grounds for refusal to register those in need, there is no such thing as the presence of another dwelling, and the presence of a share of less than fifty percent in a dwelling does not prevent the privatization of housing from the state housing stock (subparagraph 1) of paragraph 10 of Article 13, article 72 of the Law on Housing Relations).

     The norms of the Law on Housing Relations do not prevent the independent improvement of housing and living conditions when citizens live together, or the realization of the housing rights of other persons who are family members of the employer (orphans, children left without parental care, and others), especially if they are not provided with housing according to established standards. Family members of the tenant who received housing from the communal housing stock may not be recognized as needy on the same grounds as the tenant of the dwelling (paragraph 1-1 of Article 67). This restriction does not prohibit the first to be registered as those in need of housing and to receive housing for other reasons.

      At the same time, the content of the norm of subparagraph 8) of Article 107 of the Law on Housing Relations in its current version is at odds with its constitutional and legal meaning, identified by the Constitutional Council. The structure of the legal norm does not allow for its uniform understanding and application, and allows for the possibility of different interpretations, which can lead to infringement of citizens' constitutional rights (according to the Supreme Court, eviction claims have been satisfied in 18 cases over the past three years).

     Thus, it is not clear from the norm under consideration whether the acquisition of another dwelling by right of ownership by which group of persons is the basis for eviction from the dwelling. The circle of citizens in respect of whom the lease agreement for residential premises is terminated, as well as the type of ownership of another dwelling (individual or common property), is also unclear. The phrase "regardless of its location" can be broadly interpreted, including housing located outside the country. Meanwhile, when recognizing citizens of the Republic in need of housing from the state housing stock, only the ownership of housing on the territory of Kazakhstan is taken into account (article 69 of the Law on Housing Relations). In addition, it puts people in an unequal position who are characterized by the same degree of need, which does not correspond to article 14 of the Basic Law. When it is applied, a citizen with a specific family composition who has his own home, but is recognized as needy due to its non-compliance with established standards, has the right to use housing from the state housing stock, whereas in respect of another citizen with the same family composition, in the case of the acquisition of other housing after the provision of public housing, the lease agreement for an apartment is terminated.

      When checking subparagraph 8) of Article 107 of the Law on Housing Relations, the Constitutional Council also established the semantic non-identity of its texts in the state and Russian languages.

      In the Kazakh language, it is stated as follows: "8) olar menshik kygumen ornalaskan zherine karamastan ozge turgyn uidi satyp algan bolsa". In Russian, these provisions are formulated as follows: "8) they have acquired another dwelling by right of ownership, regardless of its location."

      It follows from the above that if in the Kazakh text the words "satyp algan bolsa" (if bought) presuppose a specific basis for the emergence of ownership of a dwelling – through a purchase and sale transaction, then in the wording of the norm in question in Russian, the word "acquired" covers not only purchase, but also all other methods (receiving housing by inheritance, as a gift, through privatization, and others). Thus, the editions of this norm in Kazakh and Russian address the issue of eviction from public housing in different ways.

     These shortcomings give rise to legal uncertainty, disputes and the lack of a unified judicial practice on the application of the rule of law.

Russian Russian language In a number of normative resolutions, the Constitutional Council pointed out that equality in the use of the Kazakh and Russian languages also means equal legal significance of the texts of normative legal acts in Kazakh and Russian, and semantic non-identity, distorting the content of a legal norm and making it impossible to understand it unambiguously, excludes, based on the meaning of paragraph 2 of Article 7 of the Constitution of the Republic, the application of such norms in practice. The law must meet the requirements of legal accuracy and predictability of consequences, that is, its rules must be formulated with a sufficient degree of clarity and based on understandable criteria that exclude the possibility of arbitrary interpretation of the provisions of the law. They follow from the constitutional principle of equality of all before the law and the court, since such equality can be ensured only if there is a uniform understanding, interpretation and application of a legal norm (No. 3 of February 23, 2007, No. 2 of February 27, 2008, No. 1 of February 11, 2009, No. 7 of December 2011 5, dated May 18, 2015, No. 3 and others). The law should also specify not only the grounds for restricting constitutional rights, but also clear mechanisms for their application.

      According to paragraph 1 of article 39 of the Constitution, human and civil rights and freedoms may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals. The legal values specified in it may lead to restrictions on rights and freedoms if such restrictions are adequate to legally justified goals and meet the requirements of justice, are proportionate, proportionate and necessary in a democratic state to protect constitutionally significant benefits (normative Resolution of the Constitutional Council of February 27, 2008 No. 2).

      In this regard, the Constitutional Council agrees with the opinion of the participants in the constitutional proceedings that, in order to properly implement the State's obligations in the field of housing provision and maximize the satisfaction of citizens' housing rights, it is advisable to implement appropriate legislative measures.

      Thus, the norm of subparagraph 8) of Article 107 of the Law on Housing Relations, in the part in which it allows the unconditional eviction of the tenant (sub-tenant), all members of his family and other persons living together with him from a public dwelling if they acquired another dwelling by right of ownership, without taking into account the degree of their need for housing., does not meet the above-mentioned basic principles of state social policy and the goals of the legitimate restriction of constitutional human rights and, thus, contradicts paragraph 1 of Article 1, paragraph 2 of Article 7, article 14, paragraph 2 of Article 25 and paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan.

      Based on the above, guided by paragraph 2 of Article 72 of the Constitution of the Republic of Kazakhstan, subparagraph 1) paragraph 4 of article 17, articles 31-33, 37, 40 and subparagraph 2) Paragraph 1 of Article 41 of the Constitutional Law of the Republic of Kazakhstan dated December 29, 1995 "On the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan

      Decides:

To recognize subparagraph 8) of Article 107 of the Law of the Republic of Kazakhstan dated April 16, 1997 "On Housing Relations" as unconstitutional.

According to paragraph 2 of Article 74 of the Constitution of the Republic of Kazakhstan, laws and other legal acts recognized as unconstitutional, including infringing on human and civil rights and freedoms enshrined in the Constitution, are repealed and are not subject to application.

To recommend to the Government of the Republic of Kazakhstan, in order to better ensure the housing rights of citizens, to consider initiating amendments and additions to the Law of the Republic of Kazakhstan dated April 16, 1997 "On Housing Relations" in accordance with the legal positions of the Constitutional Council contained in this regulatory resolution.

Courts and other law enforcement agencies, before taking the necessary regulatory measures, should ensure the direct effect of the Constitution of the Republic of Kazakhstan and be guided by this regulatory resolution, which is not retroactive.

In accordance with paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, the regulatory resolution comes into force from the date of its adoption, is generally binding throughout the Republic, final and not subject to appeal.

To publish the regulatory resolution in Kazakh and Russian languages in the official republican print media.

     Constitutional Council of the Republic of Kazakhstan

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases