PRE-TRIAL CLAIM for the return of illegally destroyed and stolen private property
LLP "PMK...."
BEAN....
050052, Almaty, Nauryzbay district,
mkr. Mamyr, Aftsinao str., 34.
+7 775 ….
from: A.A.E.
IIN …
A.E.
IIN .
+7 701 …
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 971 78 58; +7 708 971 78 58.
PRE-TRIAL CLAIM
for the return of illegally destroyed and stolen private property
In order for the managers of PMK LLP to understand what is at stake, we first present the required information.
By the Decree of the Akimat of Astana No.197-1255 dated July 29, 2013, A.A.E. was granted private ownership for the construction and operation of a restaurant and wellness complex instead of the seized land at the address: Astana, Almaty district, the intersection of streets No. 23-15 (project name) and Zh. Nazhvedenova, with an area of 0.3646 hectares. The improvement of the land plot began after the allocation of two additional land plots for landscaping with a total area of 0.2205 hectares and the release of the decree of the Akimat of Astana No. 120-2396 dated December 2, 2016 "On the design permit for the restaurant and wellness complex".
In 2017-2019, the following works were carried out: a preliminary design of the facility was prepared and approved by the city architecture; a working draft was developed, its examination was carried out; geological surveys of the land were carried out; electrification, heat supply, sewerage, etc. of the facility were coordinated with various services of Astana; garbage and remnants of building materials used in the construction of the residential complex were removed from the land "Millennium Park", i.e. the land plot is ready for the construction of the facility; in the summer and autumn of 2019, the territory is fenced with a three-meter metal fence with two 6-meter gates and two gates, and the passport of the facility is posted on the main gate; a two-room construction wagon, 20 foundation blocks, fittings, metal corners, cement, crushed stone, sand, construction tools were brought to the territory; the fenced area is closed with 2 locks.
Thus, in the fall of 2019, all preparatory work was completed for the start of construction of a restaurant and wellness complex with a total area of about 10,000 square meters. In April 2020, it was supposed to receive permission from the akimat to carry out construction work. However, unexpectedly, on March 11, 2020, the akimat decided to seize many land plots located around the final construction of the Kazakh Drama Theater for the construction of squares and boulevards along Mynzhyldyk Alley, which included the territory of our land plot. We were not informed about the release of the Akimat's resolution. In early April 2020, A.E. was going to leave for Astana to resolve the issue of starting construction of the facility, but the coronavirus epidemic began, quarantine was declared, planes did not fly and he was able to fly to Astana only on May 25, 2020.
Now about the essence of the issue directly related to PMK-7K LLP.
On March 11, 2020, by Resolution No. 510-547 of the Akimat of Astana "On the compulsory alienation (purchase) of land plots for public needs" and "On Amendments to Certain Resolutions of the Akimat of Nur-Sultan No. 510-2502 dated July 22, 2021", land plots owned by private ownership of A.A.E., located at: Nur-Sultan city, Almaty district, the area of intersection of No. 23-15 street (project name) and Zh. Nazhvedenova forcibly alienated for state needs. p.4, p.2 art. 63 of the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law) explicitly stipulates that the date of compulsory alienation is indicated in the resolution on the commencement of compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs, but not earlier than three months from the date of the official publication of this resolution. In this regard, the deadline for alienation was set from June 19, 2020 to June 19, 2021.
However, in mid-May 2020, i.e. two months after the date of the official publication of the decree defining the beginning of the alienation period from June 19, 2020, unknown builders began to destroy the fence enclosing the territory of a private land plot, began to export building materials, etc., that is, despite the deadlines set by the Law and the decree of the Akimat, construction work began, thus grossly violating the requirements of the Law, this was reported orally and in writing to the akimat.
In addition, on June 30, 2020, the owners contacted law enforcement agencies and called them to the place where the fence began to collapse, while the police recorded deliberate violations by the builders, and on July 4, an application was submitted to the Astana regional police department. Subsequently, the owners repeatedly applied to the Mayor's Office of Astana regarding this fact, where they asked to stop destroying the fence, plundering private property and continue to develop the territory until the conclusion of an agreement with the owner on the alienation of the land for state needs or until a court decision on the seizure of the land and its entry into force. However, the akimat did not respond to the statements of the owners, and the builders continued to forcibly seize and plunder private property.
Seeing the gross violations of the legislation of the Republic of Kazakhstan, namely: non-compliance with the procedure for compulsory alienation of land and the commission of a criminal offense by builders in relation to private property, the son of the owner of the land turned to appraisers to assess the damage caused. The appraiser documented (in photographs) the damage to the fence and on June 18, 2020, compiled report No. 87/06 on the assessment of the market value of the property, according to which the fencing of the land plot was estimated at 10,972,153 (ten million nine hundred seventy-two thousand one hundred and fifty-three) tenge, and this is not counting the costs of the owner to pay 5 hired workers, those who built the fence of a private land plot for further construction work, as well as the cost of the remaining building materials and a trailer.
In this regard, the owners began to find out who was responsible for these offenses. During the clarification of the circumstances, it was revealed that the state institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" and PMK LLP signed a contract for public procurement of construction works No. 2020/48 dated May 11, 2020. According to the contract, the work was carried out under the Project "Contract work – construction of boulevards and squares along Mynzhyldyk Alley in Astana (first stage)".
Paragraph 1 of Article 65 of the Law stipulates that the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is carried out after the expiration of the time limits set in the resolution specified in paragraph 2 of Article 63 of this Law, with the consent of the owner or a non-governmental land user, unless otherwise provided by the Laws of the Republic of Kazakhstan, or by court order.
Thus, it turned out that "PMK." LLP acted illegally without the consent of the owner and, violating the deadlines established by Law, caused significant material damage to the owners of private property.
Paragraph 3 of Article 65 of the Law states that the basis for the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is an agreement on the alienation of a land plot for state needs or a court decision.
According to Resolution No. 510-547 of March 11, 2020, the compulsory alienation of land plots should have been carried out from June 19, 2020 to June 19, 2021. However, the Akimat of Astana and PMK-7K LLP ignored this resolution, and the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" (the Customer) concluded an agreement with the "Contractor" represented by PMK-7K LLP for the production of works. At the same time, the management of PMK-7K LLP was not convinced that there were no buildings on the land plot and that the land plot belonged to the akimat. While the site had a structure in the form of a metal fence, there were building materials, and the site was privately owned.
Clause 3.7 of the Contract on Public Procurement of Works in the Field of Construction No. 2020/48 stipulates that the "Customer", after the entry into force of the Contract, makes an advance payment in accordance with Appendix No. 1 after the "Contractor" has secured the performance of the Contract, secured the advance and (or) the amount in accordance with Article 26 of the Law. According to Addendum No. 1 to Agreement No. 2020/48 dated May 11, 2020, the Management made an advance payment in the amount of 570,000,000 tenge on May 15, 2020 and in the amount of 13,357,800 tenge on June 26, 2020.
According to clauses 29, 4.1 of the Contract on Public Procurement of Works in the field of Construction No. 2020/48, the "Contractor" undertakes to submit to the "Customer" for approval a schedule of work, which sets out the procedure and deadlines for the construction of the Facility, within three days from the date of signing the Contract. In the event of a change in the duration of the completion period, the "Contractor" is obliged to submit a schedule of work within 3 (three) business days from the date of signing the relevant supplementary agreement. When studying the approved work schedule, it can be seen that in May 2020, you began performing the following works: general construction, technological equipment, vertical layout, cable laying (trenches). This work schedule was signed on June 2, 2020.
Paragraph 14 of Article 65 of the Law states that the actual transfer of a land plot or other immovable property alienated for state needs in connection with the seizure of a land plot for state needs can be carried out only after the owner, whose rights in relation to the alienated property are terminated or limited by compulsory alienation, receives an equivalent compensation made in accordance with the procedure established by this Law.. And in accordance with art . 917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
The "contractor" represented by PMK-7K LLP not only illegally destroyed private property, but also plundered it. So, at the time of its capture there were: a construction trailer, 20 foundation blocks, the remains of four-meter pipes, unused trapezoidal sheets, metal corners 5 x 5 cm, reinforcement, cement, crushed stone, sand, a trough for mixing mortar, etc. The pipes, dug into the ground and cemented, were 4 meters long, the trapezoidal sheets were 3.0 m by 1.5 m. During the demolition of the 330-meter-long fence, 110 pipes were cut, some of the trapezoidal sheets were damaged, some were removed and all this was taken away by the builders, including a construction trailer and 20 foundation blocks, i.e. in fact, employees of PMK-7K LLP committed a criminal offense. On this issue, the owners have repeatedly sent applications to the akimat, and received a response stating that the construction trailer must be returned to AA.
Due to illegal actions on the part of the "Contractor" represented by PMK-7K LLP, the owners have experienced serious and multiple moral trials. At the same time, the material damage suffered by the owners concerns not only the destruction and theft of private property, but also the multimillion-dollar costs that the owners have undertaken to protect their constitutional rights (assessments, forensic examinations, court costs, etc.).
Based on the above, we ask you to voluntarily compensate the damage caused by you to Abylkasimov, namely:
A fence destroyed without the consent of the owner, the market value of which, according to the assessment report No. 87/06 dated 06/18/2020, is 10,997,153 (ten million nine hundred ninety-seven thousand one hundred and fifty-three) tenge;
Removed from a private land plot:
a) construction trailer – 3,000,000 (three million) tenge (average market value);
b) foundation blocks – 20 pieces x 19,000 tenge = 380,000 tenge (average market value);
c) steel pipes – 110 pieces of 3 m each = 330 m x 2098 tenge = 692 340 tenge;
d) metal trapezoidal sheets – 330 pcs. of 3 m. = 990 sq.m. x 4140 tenge = 4098600 tenge.
Total: 8,170,940 tenge.
The owners also demand to reimburse the representation expenses that were spent to protect their infringed rights: former and new lawyer services – 1,200,000 (one million two hundred thousand) tenge.
In total, 20,368,093 (twenty million three hundred and sixty–eight thousand ninety-three) tenge is subject to reimbursement.
If the director of PMK-7K LLP, B.S. Mustafayev, does not object to reimbursing the owners, then E.A. Abylkasymov is ready to hold a meeting with him and show him the originals of the documents indicated in the appendix and prove the guilt of the "Contractor" represented by PMK-7K LLP. And if you are not ready to reimburse the above amounts by February 25, 2024, the owners reserve the right to apply to the court on this issue, as well as to law enforcement agencies for criminal violations committed by employees of PMK-7K LLP.
We hope for your mutual understanding and a practical solution to the issues mentioned in the pre-trial claim of the owners of private property.
With respect,
AGCA's lawyer G. Sarzhanov
Attention!
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