Statement of claim for the return of independently acquired land into state ownership, demolition of the constructed structure at the expense of the defendant
The plaintiff appealed to the court with a claim for the return to state ownership of the land independently acquired by the mayor of Shymkent L., The demolition of the constructed structure at the expense of the defendant. By the decision of the Karatau District Court of Shymkent dated September 30, 2016, the claim was dismissed. By the decision of the judicial board for civil cases of the South Kazakhstan regional court dated December 7, 2016, the court decision was canceled and a new decision was made to satisfy the claim. The construction of a 1-storey residential building with a total area of 358.9 square meters, a length of 17.2 meters, a width of 22.3 meters with a foundation of cast concrete, an outer wall of burnt ceramic, an inner wall of clay ceramic, a roof of iron equipment, located on site No. 2518 (formerly Cadastral No. 19-309-194-2518), Karatau District of Shymkent, was demolished at the expense of defendant L. Having heard the explanation of the representative of the defendant, who confirmed the arguments of the petition, the prosecutor's conclusion that the judicial act was canceled and the case was sent for revision, having studied the case materials, the Cassation judicial board came to the conclusion that the decision of the court of Appeal in question is subject to cancellation due to the following grounds. In accordance with Part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), the grounds for Cassation review of judicial acts that have entered into legal force, specified in the first part of Article 434 of this code, are significant violations of the norms of material and procedural law provided for in Article 427 of this code, which led to the issuance of an illegal judicial act.
Statement of claim for the return of independently acquired land into state ownership, demolition of the constructed structure at the expense of the defendant
Such violations were allowed in the case. Subparagraph 3) of Part 4 of Article 427 of the Civil Code establishes that in case of violation of the rules on the language of legal proceedings during the consideration of the case, the decision of the court of first instance is subject to cancellation. In accordance with parts 3, 4 of Article 14 of the code, persons participating in the case who do not know or do not sufficiently know the language in which the proceedings are being conducted are explained and provided with the right to make statements in court in their native language or other language of their knowledge, to give explanations and testimony, to file petitions, to make complaints, to challenge judicial acts, to get acquainted with the materials of the case, to speak, to use the services of an interpreter free of charge in accordance with the procedure established by this code. The court provides free translation of the case materials necessary for them by law to persons who do not speak the language of legal proceedings in civil proceedings. The court provides the persons involved in the case free of charge with the translation into the language of legal proceedings of the part of those who speak the other language in the court. Since the defendant in this case L. and his representative Sh. do not know the language in which the case is being conducted – Kazakh, a translator was involved in the court. However, judging by the documents of the case, two of the five court sessions held in the court of first instance were attended by the representative of the defendant Sh., of which only one was invited by an interpreter. When considering a case on appeal, it is not possible to check the presence of an interpreter in connection with poor-quality recording of audio and video recordings. In addition, judging by the documents of the case, judicial acts and the appeal of the plaintiff were not transferred to the defendant in writing, translated into an official language or other language that he knows. These circumstances were proved by the arguments of the representative of the defendant, who attended the meeting of the judicial board.
These shortcomings indicate that the judicial instances did not ensure the defendant's defense rights and did not comply with the principles of the language of legal proceedings. Part 2 of Article 5 of the Civil Procedure Code states that violation of the principles of civil legal proceedings leads to the cancellation of judicial acts issued depending on its nature and materiality. In such a context of the case, judicial acts of the first and appellate instance adopted in this case cannot be recognized as legitimate and justified. Therefore, on the basis of the above, the Cassation judicial board for civil cases of the Supreme Court of the Republic of Kazakhstan canceled the local judicial acts and sent the civil case to the court of First Instance for new consideration in another composition of judges. The appeals of the defendant L., The interested person K. were partially satisfied.
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