Court/Judicial body: Shchuchinskiy District Court of Akmola
Date: 17 February 2006 CRC
Provisions: Article 3: Best interests of the child
Domestic provisions: Constitution of the Republic of Kazakhstan, Article 27 (Marriage and family, motherhood, fatherhood and childhood are under state protection) Civil code of the Republic of Kazakhstan, Article 209 (property owned by two or more persons), Article 218 (1,2) (shared ownership of property)
Background: This case concerns a property dispute over the ownership of an apartment. The petitioner alleged that her two minor children are each end to a one-third share of the property which they inherited from their deceased father, the remaining one-third of the property being owned by their father’s sister, who was currently occupying the flat.
Issue and resolution: Distribution of property to minors. Court confirmed the children’s share in the property and ordered the children’s mother to compensate the other co-owner by the market value of her share on behalf of the children.
Court reasoning: Based on the certificates of inheritance presented as evidence, it was clear that each of the children was end to inherit a one-third share in the property. The court explained that in cases of co-ownership one party may demand the division of their share in the property and that, where such division in not possible, they have the right to be compensated for the value of their share. In the current case, division of the flat is not possible and, since the children’s share of the flat was bigger, the most reasonable solution was that they buy out the share of their aunt. Furthermore, the Court the court considered that this is in line with the interests of the minor children, which should be given priority in compliance with Article 3 CRC. Therefore, the Court ordered that the mother of the children (petitioner in the case) compensates the flat’s co-owner (the children’s aunt) by the value of her share of the flat so that the property is jointly owned by the two children only.
Excerpt citing CRC and other relevant human rights In Russian: “Приоритетными являются интересы несовершеннолетних детей, поскольку согласно ст. 27 Конституции РК брак и семья, материнство, отцовство и детство находятся под защитой государства. Эти же положения закреплены в ст. 3 Конвенции о правах ребенка от 20.11.1989 года регламентирующей, что во всех действиях в отношении детей, независимо от того, предпринимаются они государственными или частными учреждениями, занимающимися вопросами социального обеспечения, судами, административными или законодательными органами, первоочередное внимание уделяется наилучшему обеспечению интересов ребенка”.
As translated by CRIN: “Interests of minors are a priority, as according to Article 27 of the Constitution of the Republic of Kazakhstan, marriage and family, motherhood, fatherhood and childhood are under State protection. These provisions are named in Article 3 of the Convention on the Rights of the Child […] which regulates that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, priority is given to the best interests of the child”.
CRIN comments: CRIN believes this decision is consistent with the CRC. According to Article 3, the best interests of children must be the primary concern in making decisions that may affect them, including the cases of property distribution, as in this case, when children are legitimate owners of the property inherited from the deceased father.
Citation: Дело № 2-136-06 «17» февраля 2006 г., Щучинский районный суд Акмолинской области
Link to full judgement: http://eaias.supcourt.kz/site/Judgements/2006/Judgements_rus2006.NSF/Document/C9E65A350EDCC4F546257671001A11D7?OpenDocument