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15JURIDICAL SCIENCES
ANALYSIS OF THE OBSERVANCE OF HUMAN RIGHTS TO DECENT HOUSING IN THE
REPUBLIC OF KAZAKHSTAN
Alzhankulova S.,
Academy of Economics and law named after U.A. Dzholdasbekov
head of the Department of private law Professor of private law Candidate degree in jurisprudence Darkhambaeva A.,
Academy of Economics and law named after U. A. Dzholdasbekov
Dean of the faculty of business and law Candidate degree in jurisprudence Myrzahanova Sh.,
Academy of Economics and law named after U. A. Dzholdasbekov senior lecturer of the Department of private law
Adambaeva G.
Academy of Economics and law named after U. A. Dzholdasbekov senior lecturer of the Department of private law
Abstract
The article is devoted to the analysis of practical problems of housing policy of the state and observance of human rights to adequate housing on the example of Almaty region. In particular, gaps in national legislation were identified as a result of a comprehensive study of judicial practice, the practice of providing housing to citizens, as well as the study of the waiting list for housing in the region. In conclusion, it is established that the national legislation should be amended to improve the housing policy of the Republic of Kazakhstan.
Keywords: right to housing, decent housing, housing policy, judicial practice, illegal eviction.
Housing is one of the most important material conditions of human life, the need for which arises in everyone from the moment of his birth and persists throughout his life. The need for housing is constant and changes with age, family and other circumstances. Lack of housing leads to homelessness, increased social vulnerability, and sometimes social exclusion.
Long-term homelessness results in the gradual loss or transformation of the daily practices and social skills of the group to which the individual belonged and the development of the daily practices and social skills characteristic of the way of life that he is forced to lead.
A significant number of people in such a situation is a sign of social distress and represents a serious social problem that requires careful study and the search for ways to solve it as soon as possible.
The housing issue in Kazakhstan has long become one of the most acute problems. According to experts, the country is in need of housing more than three million people of Kazakhstan.
The analysis of the human rights situation on housing in Almaty region revealed a number of violations of national legislation, in particular, illegal eviction, abandonment of orphans without hereditary housing, violation of the priority for housing.
For example, in Almaty region, the authorities prefer state employees and civil servants when renting housing under the state program, although any solvent citizen has the right to rent. The problem is revenue transparency.
According to Kazinform in 2015 under the program "Affordable housing-2020" in Taldykorgan 8 houses for 683 apartments were put into operation. The
total area of the apartments is 35.91 thousand square meters [1].
At the same time, in 2016, two more 12-storey 64-apartment residential houses were built for young families, with a total area of 9.6 thousand square me-ters.within the framework of this program, two 60-apartment rental houses were built in the South-Western residential area intended for doctors and orphans, with a total area of 21.8 thousand square meters. However, on may 23, 2017, 120 families received apartments in the new South-Western district of Taldykorgan. Of these, disabled people, orphans, large and incomplete families, Afghan soldiers received only 20 families, although they were intended for them.
According to the press service of the mayor of Taldykorgan, in order to implement this program for citizens who are registered and in need of housing, it is planned to design and annually build state rental houses at the expense of the Republican budget and communal houses at the expense of the local budget [2].
Another situation, the mother of many children Munira Smagulova does not hope that her children will be able to get apartments in apartment buildings under construction. Since her four sons work in private firms and employers, she said, hide their real income from taxes, they can not show their ability to pay.
The question arises, why does the state create preferential conditions only for civil servants and state employees? Why do employees of private structures remain behind?
To participate in the rental housing program-you need to prove your solvency. However, the authorities
in Almaty region the preference for public sector employees and civil servants.
In Taldykorgan, the first rental house was built within the framework of the state housing program from the Republican budget. According to officials of the Department of housing and communal services, lease agreements will be concluded for a period of one year with subsequent extension [3].
So in 2015, local authorities settled single mother Abaeva Gulzhanat in a one-room apartment. The woman has two children, one of whom is disabled. In 2016, she was evicted from the apartment without explaining the reasons. She called on human rights activists and journalists to help.
"I am in line to receive housing from the state Fund. For a year, the queue has advanced only three people. I had no place to live, and therefore I was placed in this apartment" - Gulzhanat explains to journalists.
The Deputy head of the Taldykorgan Department of housing and communal services does not see anything illegal in the eviction of Gulzhanat. This apartment belongs to housing and communal services. A woman was not legally singled out. Today this apartment is necessary for state needs, and therefore we evict it, the official said [3].
Today, because of the crisis, square meters fell in price. But for the same reason, the solvency of Kazakh-stanis fell. According to the logic of the authorities, rental houses should become an effective tool in the Kazakh real estate market. For the state, the development of the rental housing sector is one of the possible options for solving the housing problem and generating income to the budget.
The method of calculating the rental payment, according to experts, is quite prosaic. It's a perpetual annuity. If a family takes an apartment for rent simply, it pays for rent and utilities. In the case of a lease with subsequent redemption, the tenant must pay the cost of the apartment for a specific period. But in any case, this amount should be lower than when buying a home in the mortgage.
In Kazakhstan, the state program of rental housing started only recently. Its development should help to solve the housing problem of socially vulnerable citizens, state employees and young families. However, in our opinion, the state wants to give wishful thinking for reality.
The state program of rental housing is designed for low-income citizens, employees of budgetary and social spheres. Other segments of the population remain outside the program. Especially the self-employed. Every day there are more and more of them in Kazakhstan, and their housing rights are neglected. State housing programs should provide guarantees to all citizens, not to individual groups of the population.
In Taldykorgan, more than 13 thousand people are on the waiting list for housing from the state housing Fund. According to the testimony of the waiting list, for the year the queue moves by three or four people. If further apartments will be allocated at this rate, many waiting lists will be able to get housing only after decades.
Another acute problem in the sphere of housing relations is orphans.
Six brothers and sisters Aslanbekov after the death of his mother were in an orphanage and lost a roof over his head. While they lived in the state institution, their own house was taken over by strangers. They could not defend the dwelling in court. Today, young people are in line for housing from the state Fund. Well, in the meantime, rent for 35 thousand tenge a two-room temporary shelter on the outskirts of the city. They complain that life in this house difficult, especially the 14-year-old Lestienne disabled since childhood. There are no conditions in the temporary shelter. It would be very desirable while turn goes that to us would help with temporary housing. That there were normal conditions at the disabled child and in General at children of orphans, - asks 25 summer Leyla Aslanbekova [4].
In Taldykorgan, according to official data, about 1300 orphans are in the queue for housing. The most proactive of them decided to unite in the movement " for a fair and transparent distribution of housing." Members of the initiative group of the public Association sent complaints to the akim of the region and to law enforcement agencies with a request to include them in the housing Commission.
Thus, we believe that the distribution of housing in the city of Taldykorgan goes with great violations. According to the Department of housing and communal services of Taldykorgan, in the queue for housing are more than 13 thousand citizens. Over the past five years, just over one thousand families have received apartments. According to the law, 20 percent of the housing put into operation were to be received by orphans. At such rates of construction the brothers and sisters of Aslanbekov standing in a queue under No. 993 will not receive the apartment yet soon.
Next, we present the results of monitoring the waiting lists for housing from the website of the akimat of Taldykorgan.
Waiting list of disabled people 1, 2 groups Since 2004 there are 39 people in the queue, 2005
- 115, 2006 - 76, 2007 - 62, 2008 - 88, 2009 - 86, 2010
- 79, 2011 - 95, 2012 - 121, 2013 - 62, 2014 - 100, 2015 - 185, 2016 - 35 people, a total of 1145 people.
The list of waiting lists of disabled people of the second world war
Since 2005 - 8, 2006 - 9, 2007 - 8, 2008 - 3, 2009
- 2, 2010 - 5, 2011 - 1, 2014 - 1, 2015 - 1, total 38 people.
Waiting list of large families
Since 2004 there are 24 people in the queue, 2005
- 125, 2006 - 92, 2007 - 91, 2008 - 57, 2009 - 75, 2010
- 34, 2011 - 46, 2012 - 42, 2013 - 29, 2014 - 65, 2015
- 116, 2016 - 21 people, a total of 817 people.
The waiting list of old-age pensioners
Since 2004 there are 11 people in the queue, 2005
- 57, 2006 - 57, 2007 - 46, 2008 - 30, 2009 - 29, 2010
- 71, 2011 - 63, 2012 - 75, 2013 - 42, 2014 - 88, 2015
- 167, 2016 - 45 man, total 780 people.
List of waiting lists of employees of budgetary organizations and civil servants
Since 2004 there are 5 people in the queue, 2005 -60, 2006 - 80, 2007 - 176, 2008 - 160, 2009 - 210,
2010 - 401, 2011 - 350, 2012 - 619, 2013 - 466, 2014
- 797, 2015 - 1272, 2016 - 236 people, a total of 4881 people.
List of military waiting lists
Since 2004 there are 20 people in the queue, 2005
- 10, 2006 - 27, 2007 - 34, 2008 - 42, 2009 - 29, 2010
- 47, 2011 - 46, 2012 - 77, 2013 - 33, 2014 - 67, 2015
- 259, 2016 - 25 man, total 716 people.
Waiting list of disabled children
Since 2004 there are 2 people in the queue, 2005 -72, 2006 - 41, 2007 - 54, 2008 - 41, 2009 - 41, 2010
- 204, 2011 - 65, 2012 - 83, 2013 - 60, 2014 - 84, 2015
- 104, 2016 - 20 people, a total of 871 people [5].
So, the analysis showed that people in the queue are decades, during which time children grow up, the elderly die, and did not wait for the Ghost queue.
We will analyze, one more fact of violation of human rights on housing. In 2006 Svetlana Shamaeva-a former doctor of the military unit took a loan in "Temir Bank" in the amount of 3 500 000 tenge. For a year and a half, she paid a third of the amount, but the family had a problem situation. Initially, Svetlana's husband gets into an accident and crashes the bus, for which the Bank gave a loan. Then Svetlana had a child with cerebral palsy, and finally, unable to stand everything, the husband leaves the family, leaving his wife and three children. For an indefinite time payments have been suspended.
Year Svetlana could not maintain a relationship with the Bank. But, after the child learned to live independently, she immediately turned to the Bank. Having provided all documents on disability of the child, asked for refinancing. But the Bank refused her and transferred the case to the collection company. She turned there, but collectors faced, that it on this moment there is no money refused with it to speak.
In 2009, the state signed a Memorandum with second-tier banks and allocated money to support troubled borrowers. At the same time "Temir Bank" suddenly stopped. In 2010, when Svetlana Shamaeva came out of maternity leave and began to receive a stable income, she tried to resume payments. And then it turned out: the Bank, without any notice, through the court deprived of housing a woman and her children.
The landlady was given an ultimatum-to pay 4 million tenge within five days or to vacate the house. As Shmaevich these funds were not, they tried to negotiate with the Bank. However, it was unsuccessful. Also unsuccessfully for her were the courts.
Three years later, on November 7, 2014, the family was evicted from the only housing. The bailiffs and the new owners, connected both with the Bank and with the bailiffs, threw out the sick Nazar on the street together with the household property.
After the eviction Shamaevi repeatedly tried to elicit some of the city's housing Fund. During this time, the Bank where they took out the loan, rebranded, changing the sign from "Temir" to "Forte". But, as it turned out, renaming the label did not affect the attitude towards people [6].
Thus, today, through the fault of banks and government agencies, the family is deprived of virtually all
civil rights. Adults can not vote, children can not arrange for school, to issue benefits, etc. Everywhere require an address certificate or registration, which Sha-mayev, due to the loss of the only housing, do not have.
The situation of the Shamayev family from Kap-shagai is as hopeless as it is typical for Kazakhstan, since thousands, if not tens of thousands of other families are forced to exist in similar conditions.
As a result of monitoring conducted by members of the Republican Council for combating corruption under the people's democratic party "Nur Otan" in Almaty, numerous violations were revealed in the distribution of housing from the state Fund.
The Prosecutor's office of Almaty region conducted an inspection and revealed violations of housing legislation among civil servants, including employees of the akimat of the region and its structural units. During the inspection, it turned out that the apartments, which are in communal ownership, are rented to third parties, that is, they were "turned into an object of commercial activity". It was also established that persons who have already lost the right to use according to the law illegally live in dwellings which are in municipal property [7].
At the same time, persons who are on the lists of those in need of housing, can not get it for many years. It is noted that as of 1 January 2018 in Taldykorgan in the queue for public housing are more than 13 thousand people. As a result, the Prosecutor's office of the region made an idea about the elimination of violations and the return of 12 apartments to communal property. Currently, two apartments have already been returned to communal ownership, in respect of three owners, statements of claim have been filed in court, the rest have been served with notices. Earlier, the Ministry of regional development of Kazakhstan proposed to divide applicants for housing civil servants and state employees by income, as well as to introduce a ban on the privatization of social housing.
The mechanism of distribution of apartments used by local Executive bodies has led to systemic violations. In particular, the akimat of Almaty does not keep records of those in need of housing from the public housing Fund. The account is wrongfully kept separately in seven districts of the city. Resolutions of the akimat on the provision of apartments are adopted on the basis of decisions of the housing Commission, the minutes of meetings of which are not presented. Also, the documents on the approval of the Commission are not submitted. According to the staff of the housing Department, in fact, decisions are made at the meeting of akim with the participation of head of housing management and other employees of akimat, therefore it can be stated that grishakova of the distribution of housing from the state housing Fund in Almaty is not working due level. In addition, the housing authority considers and satisfies individual applications and instructions from higher authorities.
These facts are not isolated. Thus, when making decisions on the implementation of housing within the framework of the State program, individual individuals are given undue preference, which in accordance with the Law of the Republic of Kazakhstan "On combating
corruption" is one of the offenses that create a condition for corruption manifestations. These violations were made possible as a result of improper performance by employees of the housing Department of their duties, as well as the lack of control on the part of management.
Thus, the analysis of housing provision in the Republic of Kazakhstan as a whole showed that the situation currently remains very difficult.
Based on the analysis of the current housing legislation and the situation in this area, the conclusion is substantiated that it is necessary to review and streamline national legislation and housing policy in order to ensure their compliance with international human rights norms and standards on adequate housing.
It is also necessary to reconsider the approach focused exclusively on market and mortgage forms of ownership of housing (which was one of the causes of the real estate crisis), as well as to develop a comprehensive national housing policy.
Such policies should include various measures, such as the use of rental plans and the upgrading of informal settlements, to meet the needs of different segments of society, including the most vulnerable groups, such as low-income families, large families, single mothers with young children, persons with disabilities, the elderly, resident migrant workers, repatriates, refugees and asylum-seekers.
Kazakhstan should do everything necessary to ensure the effective application of international treaties, in particular the international Covenant on economic, social and cultural rights, by national courts.
An integrated approach should be adopted to address issues such as forced evictions, security of tenure, the legalization of informal settlements and slum upgrading, and open, participatory and substantive consultations with residents and communities affected by such projects should be ensured prior to the implementation of urban development and renewal projects. In particular, a special law on forced eviction should be adopted, which should be drafted in accordance with existing human rights standards and implemented in accordance with the relevant principles and procedures of international human rights law.
The new law should ensure that forced evictions are carried out only in exceptional circumstances provided for by national law and only to promote the General welfare.
The circumstances under which an eviction can be justified must be determined and interpreted restric-tively by the national courts. Protection against forced eviction should be extended to all vulnerable persons and groups, regardless of whether they have title to a house and/or property under domestic law. The implementation of master plans for urban development should in no way be used as a justification for forced eviction. A complete moratorium on forced evictions should be introduced before a new law is drafted.
All persons evicted from the housing they occupy must be adequately compensated and/or offered appropriate alternative housing.
Affected persons should also be given the opportunity to choose, where appropriate, alternative accommodation in the same area. At the time of resettlement,
basic services, including access to drinking water, energy, sanitation and hygiene, as well as the necessary infrastructure, including schools, health centres and transport, should be provided in the places concerned.
Eviction decisions should be sent to the affected families in writing and contain a detailed explanation of the exceptional circumstances under which the forcible alienation of land for the needs of the state is carried out. In addition, the decision of the local Executive bodies should clearly indicate the personal data of the persons affected by this process, as well as the land plots covered by the decision on forced eviction.
The issue of informal settlements on the outskirts of the city of Almaty is very complex and requires a comprehensive approach, covering, inter alia, education, health, social benefits and employment. Forced eviction can be justified only in the presence of very exceptional circumstances and must necessarily comply with the appropriate principles and procedures under international human rights law. In particular, we note that the state is obliged to take all necessary measures to ensure that citizens do not find themselves in a state of homelessness or vulnerable persons in terms of violations of other human rights as a result of eviction, regardless of its legality.
We also believe that the lessons learned by the government in its efforts to mitigate the negative impact of the financial crisis on the effective implementation of the right to adequate housing should be taken as a basis for a General review of its housing strategies, policies and programmers. The financial crisis has shown that the creation of an enabling environment for attracting foreign investment and supporting financial activities alone cannot ensure adequate and affordable housing for all and that the state needs to effectively regulate and monitor the activities of the private sector, including financial and construction companies.
Legislation and policies on access to mortgage credit for low-income families should be reviewed and commercial banks and financial institutions should take into account the limited capacity to pay of such families. Financial services for the poor should be developed in consultation with their representatives, as they are best able to assess their ability to pay and ensure that systems are in place that meet their genuine needs.
It is necessary to consider the introduction of amendments to The law "on housing relations", providing for the extraordinary provision of social housing to persons belonging to vulnerable and disadvantaged groups. Policies and legislation should not benefit already favored social groups at the expense of others. Accordingly, social housing should be provided only to those citizens and families who are unable to meet their own housing needs.
Also at the state level, it is necessary to revise the strategy and policy in the field of housing construction in order to improve the provision of adequate and affordable housing for citizens and families belonging to low-income and socially vulnerable groups. To this end, the state needs to increase the budget allocations for the construction of new social housing and to develop, within the public and private sectors, and simultaneously implement a set of measures to realize the right to adequate housing for the benefit of vulnerable citizens and groups.
References
1. Report of akim of Taldykorgan for 2015 [Electronic resource] // http://www.zakon.kz/amp/4688875-akim-taldykorgana-itogi.
2. Materials of the press service of the Akim of Taldykorgan [Electronic resource]// http://taldykor-gan.gov.kz.
3. Rental housing prefer to give state employees. Materials of the Internet portal Nur [electronic resource]// https://www.nur.kz.
4. Taldykorgan orphans decided to restore order in the queue for the distribution of public housing.Based on the materials of the Kazakhstan international Bureau
for human rights and rule of law [electronic resource] //https://bureau.kz.
5. List of citizens in Need of housing from the state housing Fund [Electronic resource] / / https://e-tk.gov.kz.
6. How to love the Motherland, If she doesn't love you? According to the materials of the Kapshagai region news service [electronic resource] //http://ka-pinfo.kz.
7. According to the press center of the Prosecutor's office of Almaty region [electronic resource] //http://alm.prokuror.kz/rus.
ЗАТРИМАННЯ ОСОБИ, ЩДОЗРЮВАНО1 У ВЧИНЕНН1 КРИМШАЛЬНОГО ПРОСТУПКУ УПОВНОВАЖЕНОЮ СЛУЖБОВОЮ ОСОБОЮ
Бойко О.П.,
Днтропетровський державний yuieepcumem внутрiшнiх справ, старший викладач кафедри кримтального процесу,
кандидат юридичних наук Захарко А.В.,
Днтропетровський державний yнiверситет внyтршнiх справ, доцент кафедри кримтального процесу, кандидат юридичних наук, доцент Литвинов В.В.,
Днтропетровський державний yнiверситет внyтрiшнiх справ, доцент кафедри кримтального процесу, кандидат юридичних наук Федченко В.М.
Днтропетровський державний yнiверситет внyтрiшнiх справ, професор кафедри кримтального процесу, кандидат юридичних наук, доцент
THE DETENTION OF A PERSON SUSPECTED IN THE COMMITTING A CRIMINAL OFFENSE
BY AN AUTHORIZED OFFICER
Boyko O.,
Dnipropetrovsk State University of Internal Affairs, Senior Lecturer at the Department of criminal proceeding,
PhD in Law Zaharko A.,
Dnipropetrovsk State University of Internal Affairs, Associate Professor at the Department of criminal proceeding,
PhD in Law, Docent Lytvynov V.,
Dnipropetrovsk State University of Internal Affairs, Associate Professor at the Department of criminal proceeding,
PhD in Law Fedchenko V.
Dnipropetrovsk State University of Internal Affairs, Professor at the Department of criminal proceeding,
PhD in Law, Docent
Анотащя
В статт розглянуто деяш проблемш аспекти затримання особи, тдозрювано! у вчиненш кримтального проступку уповноваженою службовою особою, проводиться аналiз процесуальних норм щодо вказа-ного затримання в рамках Закону Украши ввд 22 листопада 2018 року № 2617-VIII «Про внесення змш до деяких законодавчих актв Украши щодо спрощення досудового розслщування окремих категорш кримь нальних правопорушень» та кримтального процесуального кодексу Украши. Проаналiзовано кримта-льне процесуальне законодавство зарубiжних держав щодо особливостей в розумшш, трактуванш шсти-туту затримання за вчинення кримтального проступку. Запропоноваш положення про подальшi шляхи вдосконалення кримтального процесуального законодавства Украши з дослвджувано! теми.
