Review of judicial acts on the establishment of a fact of legal significance
On April 20, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: The chairman is the chairman of the board K., judges S., A., with the participation of the applicant D.A.,
the representative of the applicant, R.O., a representative of an interested person of the republican state institution "Department of Defense Affairs", F.F., through mobile videoconference, having considered in open court a civil case on D.A.'s application for establishing a fact of legal significance, received at the request of the applicant's representative, R.O., to review the decision of the city court of May 21, 2021 and the decisions of the judicial board for civil cases of the regional court dated July 22, 2021,
D.A. applied to the court to establish the legal fact of his participation in the settlement of the interethnic conflict in Nagorno-Karabakh in the period from December 2, 1988 to May 12, 1989 due to the inability to confirm this fact in any other way, which is important for obtaining the appropriate allowance.
The decision of the city court of May 21, 2021 denied the application.
By the decision of the judicial board for civil cases of the regional court dated July 22, 2021, the decision of the city court was left unchanged.
In the petition, the applicant's representative, referring to the violation by the courts of the norms of substantive and procedural law, asks to cancel the contested judicial acts with a new decision on the satisfaction of D.A.'s application.
Having heard the explanations of the applicant and his representative, who supported the arguments of the petition, the objections of the representative of the person concerned to the arguments of the petition, having examined the materials of the civil case and the arguments of the petition, the judicial board of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the judicial board) comes to the following conclusions.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
During the consideration of the case, such violations were committed by the judicial authorities.
It follows from the judicial acts that the applicant D.A., in the period from 1987 to 1989, studied at the Shymkent Special Secondary School for the training of senior staff of the Ministry of Internal Affairs of the Union of Soviet Socialist Republics. Upon graduation, he received a diploma of the LT series No. 770729 dated August 29, 1989 with the qualification of a lawyer.
Based on the school's order No. 233 dated December 2, 1988, 26 officers, 5 workers and employees, 85 cadets of the "B" course, 85 cadets of the "G" course were seconded to protect public order in connection with the interethnic conflict that arose in Nagorno-Karabakh between citizens of Armenian and Azerbaijani nationalities.
The establishment of the legal fact of taking part in the settlement of the interethnic conflict in Nagorno-Karabakh is necessary for the applicant to receive a monthly state special allowance from the national budget as a combat veteran.
By virtue of paragraph 8 of Article 5 of the Law of the Republic of Kazakhstan "On Veterans", it is stipulated that military personnel, as well as officers and officers of the internal affairs and state security bodies of the former USSR who participated in the settlement of the interethnic conflict in Nagorno-Karabakh, are recognized as veterans of military operations on the territory of other states.
In accordance with appendices 1-1, 4 of the Rules for the Appointment and Payment of special State benefits, approved by the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated June 3, 2015 No. 445, the document confirming the right to receive benefits for military personnel who participated in the settlement of the interethnic conflict in Nagorno-Karabakh is a certificate from the local military administration body, Confirming participation in the settlement of the interethnic conflict in Nagorno-Karabakh, in the period 1986-1990.
Meanwhile, from the certificate of the republican state institution "Training Center of the Ministry of Internal Affairs of the Republic of Kazakhstan named after B.Momyshuly" dated April 1, 2021, it can be seen that the archive of the Training Center does not have a name list, information about the date of business trip and incentives for officers and cadets sent to resolve the interethnic conflict in Nagorno-Karabakh.
The Central Archive of the Ministry of Internal Affairs of the Russian Federation, in a letter dated February 26, 2021, reported that the necessary information was missing, namely, family lists.
At the same time, D.A.'s participation in the settlement of the interethnic conflict in Nagorno-Karabakh is confirmed by witness testimony.
Sh.K. and E.K., which the court was critical of, considering to be uninformative.
However, the eight photographs presented, dated January-February 1989, clearly confirm the applicant's presence in the territory of the interethnic conflict, and some of the photographs, according to the applicant, depict witness Sh.K.
Witness E.K. also has a certificate of a veteran of military operations on the territory of other states.
In addition, attached to the case file is a Certificate of Honor issued by the Department of Internal Affairs of the Echmiadzin City Executive Committee of the Ministry of Internal Affairs of the Armenian SSR on February 22, 1989, awarding D.A. for his active participation in the protection of public order.
The Judicial Board considers that the applicant provided the court with sufficient evidence confirming his participation in the settlement of the interethnic conflict in Nagorno-Karabakh in the period from December 2, 1988 to May 12, 1989, therefore, the stated legal fact of participation in these events had to be established.
There is no other way for the applicant, D.A., to obtain documents certifying a legal fact, except in court.
In this regard, the judicial board considers that the provisions of the law, fixed in part 1 of Article 305 of the CPC, allow the court to establish a fact of legal significance, on which, in this case, the emergence of the applicant's property rights depends.
According to the explanations contained in paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance", courts have the right to establish facts of legal significance, in addition to the list given in Article 305 of the CPC.
In such circumstances, the refusal of the courts to establish the stated legal fact is unjustified.
Violations of the rules of the procedural law committed by local courts are significant because they led to an incorrect resolution of the case and therefore are grounds for their cancellation.
Considering that the local courts have made mistakes in applying the rules of law and the case does not require the collection and additional verification of evidence, the judicial board considers it necessary to cancel the judicial acts contested in the petition with a new decision on the satisfaction of D.A.'s application.
Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED: The decision of the city court of May 21, 2021 and the decision of the judicial board for civil cases of the regional court of July 22, 2021 should be canceled.
To make a new decision on the satisfaction of the application in the case.
To establish the legal fact of D.A.'s participation in the settlement of the interethnic conflict in Nagorno-Karabakh in the period from December 2, 1988 to May 12, 1989.
To satisfy the petition of the applicant's representative.
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