Secretary, Committee on Economic, Social and Cultural Rights

Secretary, Committee on Economic, Social and Cultural Rights

UNOG-OHCHR

1211 Geneva

Switzerland

NGO Submission to the United Nations Committee on Economic, Social and Cultural Rights on Kyrgyzstan

by

"International Center Interbilim - Osh"

55th session of the Committee on Economic, Social and Cultural Rights

01-19 June 2015

Right to adequate housing (Article 11)

Dear members of the Committee! We would like to draw your attention to the violation of the rights of citizens of the Kyrgyz Republic to adequate housing enshrined in Article 11 of the ICESCR, to the infringement of fundamental principles regarding evictions and displacement for reasons of development (Recommendation of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (A / HRC / 4/18)).

Summary of the situation:

In 2010, ethnic conflicts occurred between persons of the titular ethnicity - Kyrgyz and ethnic minorities – Uzbeks in the city of Osh (Kyrgyzstan). Houses of 570 families, mainly belonging to ethnic minorities, were burnt down. During 2010-2012, thanks to international aid, all of the households were restored.

Despite this, in 2012-13, the local authorities launched a campaign for demolition and seizure (purchase) of 22 households belonging to ethnic minorities (132 people). The reason for the seizure was the decision of local council deputies, and the General Layout Scheme of the City of Osh, which provides for the expansion of the street for the public needs. The seizure and purchase were made at the wrong time of post-conflict ethnic hatred. This measure was not recommended by international guidelines, especially with regard to groups of people affected by violence during the conflict. Of the 22 households affected by the demolition, two were previously reconstructed by the State Directorate for Reconstruction and Development, and two households lost a family member.

That is “victims” of the tragedy later became “victims of eviction” which put them in a more marginal position. Thus, the “two-story” violence affected 16 family members and gave them an even greater conviction of discrimination on ethnic grounds.

The price paid for the property was less than the amount of damage, land provided for new housing was far from being equal to areas where victims had lived previously. This fact is a forced eviction for development purposes. The authorities put pressure on people, with the aim of forcing them to sign a disadvantageous contract, meanwhile the June tragedy still stood up strongly in minds. Articles 2.2. and 3 on non-discrimination of the International Covenant on Economic, Social and Cultural Rights imposes an additional obligation on governments to take appropriate measures in case of evictions to avoid any forms of discrimination. In this case, discrimination affected ethnic minorities, widows and single women (27 people), children under the age of 18 (38 people), and seniors (17 people). From 22 households affected by demolition: 2 2 houses were destroyed because of arson during June events, and restored by the State Directorate of reconstruction and development in 2011, and in 2012 notified of demolition. Three (3) houses during the June events have lost a family member, and advanced to this tragedy have been notified of the demolition of housing. That is the “victims of tragedy” become the “victims of eviction” making them at even more marginalized. So, “two-storey violence” were 16 family members, which gave them more confidence in their national discrimination.

The case with the seizure of households in Monuev street in Osh (household 22) has shown that some houses (9) did not have a proper registration by the owners of housings; this was the cause of reducing the amount of compensation and the reason for putting pressure on the residents to make them abandon litigation.

Analysis of the practice of seizure of house ownership in Osh City:

In the study of the practice of expropriation/seizure ofhousing on Monuev Street, which was carried out in 2012, a number of violations of national and international standards of protection of the rights of citizens to adequate housingwere found. The purpose of this description of the practices, which occurred in the past years, is prevention of similar violations in subsequent actions of the authorities, associated with the seizure/buyout of individual housing for public needs.

1. The Management of municipal property of the Mayor's Office of Osh City preparesan Agreement on transfer of land plots from private ownershipinto the municipal property, in which the conditions for buyout of seized property are not stipulated. Only the estimated value and purpose of the seizure are provided. Then, with each owner a contract is signed,which did not indicatethe redemption value. This is a gross violation. Upon the appeal of victims, lawyers ofthe “IC Interbilim" PA could not challenge the Agreement, as it was unilaterally signed by the owners. This is a proof of coercion of victims by authoritiesto sign the Agreement, through the use of official position and the June 2010 events. If no agreement is reached, a judicial procedure for dispute resolution is applied[1]. In practice, in the process of reconstruction of Monuev Street in 2012, there are no cases of appeal to a court on controversial issues of seizure and compensation; the above situation deprived the owners of such opportunity. Besides, local legislation is silent on the responsibility of the parties in the event of default under the Agreement. City Administration of State Registration should carry out the registration of concluded agreements on the transfer of land plots and other objects to municipal ownership, which fall into the zone of demolition between the Managementof municipal property and the owner of the seized object, which was not done.[2]

2. Compensation is provided to all owners, and land plots for the construction of new housing were allocated. However, the proposed redemption value by the Mayor's Office of Osh City was low; residents were not able to buy a new home equivalent to the seized housing. Many have spent their own money to build a house. When determining the redemption price, damages caused to the owner in connection with the termination of the right to a land plot until the acquisition of new housing were not included, as well as losses associated with early termination of obligations to third parties, including the loss ofeconomic benefits if the housing is used for commercial purposes[3].

3. Without issuing the signed Agreement to owners of seized land plots, an authorized body began demolition of housing, and therefore many objects were demolished for which no Agreement was provided. There is no timeline for issuing instructions to the population of seizure/buyout of land plots, and there is no timeline between the announcement of the buyout and the actual buyout which is specified in the Agreement. Timing and sequence of actions of seizure are not regulated by any laws of the Kyrgyz Republic.

4. When seizing the land plot of individual housing, if only a portion of the land plot is subject to seizure, the local authority with the owner shall resolve the issue of the total or partial seizure of the area of the ​​land plot, because the issue is about buyout of the whole unit. In practice of seizure of land on plots on Monuev Street, residents were denied the right to decide on the partial or totalityof the seized land; they were simply told the result.An exemption of land occurred in 5 homeowners, 17 homes pulled down, and seized part of the land. In the case of partial taking, the part that remained in private ownership subsequently has lost its value and feasibility of use in the future. When seizing a part of the area of land plot, the State Registration shall divide ownership to individual units, and then seize a part separately. That does not allow definition of the boundary of theseized land plot, and inclusions of the same in the Agreement. TheMayor’s Office was supposed to make a separate decision on each land plot for each individual. Bodies of the municipal administration of Osh city, according to the contract between the city and the owner were in assisting in the free registration of the remainder of the plot (not removed). But, in practice this does not happen. Residents had to bear the loss twice. First: spent money for the division of the land into two units, second time: for making documents of contract of sale of seized land. That is originally drawn up by agreement between the city and the population was only part of the compensation payments, and on the basis of which it would be impossible to operate in State Register under the purchase and sale. In general, each of the 17 owners spent $ 200 for processing of documents.

5. Today, while the owner himself will not go to the State Register for register his land plot (not removed) representatives of the authorities will not do anything. After the road has built, problems with registration left for the owner. On the other hand, even after legal separation of the land into two parts, the bought part of the land of the city is not properly registered and is not on the balance of the City Hall. Actually all the land seized by the City hall are still by the owners, in addition to those who legally registered buy and sale documents with the City hall (10 households:sold and making business). 12 plots ofland already seized by the City Hall and is not legally registered in the State register as purchase and sales are still is belongs to owners which can create problems in tax payments.

6. There are no rules for the provision of temporary housing: no provisions of norms for women, children, the disabled and the elderly separately, and none of this is addressed inthe Agreements. The area, where new land plots were provided to all affected residents do not meet the requirements of accessibility for vulnerable groups, as well as access to employment, health care, schools, child care institutions and other social services, the access to which victims had at their former place of residence. In the land provided by the City Hall for the construction for all 22 owners lives only one family. It speaks of not equivalence and attractiveness of bought land.

7. Written Agreementsdo not indicate promises of the Mayor's Office of Osh City, that affected people will receivearchitectural permits for the construction of new housing in addition to a state certificate on landplot without any charge, as well as assistance in reshaping the land plot to commercial uses. For getting permission documents for new housing architector helped to prepare the documents by own means. But architecture did not help to get permission documents for business objects. Therefor 7 owners were forced to spend $700. Architecture in the rest of the land prohibited to build capital construction and gave permission the construction of light weight constructions. However, this is in the violation of local and international standards for the rights of owner. The owner has right to build whatever he wants, the government bodies must not restrict the owner’s right of choice between capital and lightweight construction.

8.There is also a contradiction of paragraph 1 of article 44 and article 47 of the land Code, which stipulated that “buildings and structures cannot be separated from the right to the land plot, which is mounted behind the building and construction, and the same time found that “If the right to land (i.e when the seizure of the land for public and Government use) the fate of the remaining bulifings on land is determined by its owner”. That is, if the Government buys land, then must redeem all that it be, but another rule might allow the Government to by land, but say to owner “can take all you buildings and not to pay any compensation for building”. In case of removal of 22- householdes (132 people) there was no practice does not compensate for the structure, but it became the subject of pressure on owner and manipulated during negotiating the redemption value, and conclusion of contracts.

9. According to international standards, dispossession should not be carried out in inclement weather, at night, during festivals or religious holidays, prior to elections, during school exams, or directlybefore them. However, in the case of dispossessionon MonuevStreet, seizure was carried out in August, close to the opening of school time and the cold autumn season.

Paragraph 1 of Article 11 of the International Covenant on Economic, Social and Cultural Rights, states that:“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”By ratifying the Covenant, the State –the Kyrgyz Republic – undertook the obligation to ensure the implementation of housing rights and the legal right to possession. We believe that the Government of the Kyrgyz Republic has not fully complied with these obligations. The Kyrgyz Republic has adopted no specific legislative act. The absence of withdrawal/redemption of private housing for Government/municipal needs, and unclear procedures for exemption limits the nationals to fully assert their right to housing.

Residents of Monuev Street repeatedly appealed to the Government of the Kyrgyz Republic, to the Parliament and to the Office of the Ombudsman. However, no positive response was received from the higher authorities; all appeals and all complaints were forwarded for execution to local authorities.

Legal analysis of the compliance of national legislation with international standards revealed the following:

When considering the question of who has the right to decide on the seizure of a land plot, who has the right to apply to court for buyoutof immovable property in connection with the seizure of a land plot, as well as who is competent to proceed with the seizure of the land plot, legislation of the Kyrgyz Republic states thefollowing: compulsory seizure may be exercised for public or municipal needs by a so-called "competent authority." According to Article 1 of the Land Code, "authorized state body is the authority referred to in Articles 13-17, 20, 21 of the Land Code of the Kyrgyz Republic." These include: executive and administrative body of local self-government of county, township, city (Mayor’s Office, City Council), district and regional state administration, local councils, specially authorized bodies, the Government of the Kyrgyz Republic and the Parliament of the Kyrgyz Republic. However, the Land Code of the Kyrgyz Republic does not specifically define the body that has the right to decide on the seizure of a land plot. Paragraph 11 of Article 20 of the Land Code of the Kyrgyz Republic determines that the order of seizure (buyout) of land plots for state and public needs is established by the Government of the Kyrgyz Republic. The developed Rules for land use and development, taken under local law-making, do not regulate the mechanism of seizure of landplotsas well.

To this date, the Government of the Kyrgyz Republic has not adopted a normative legal act which would define the procedure (mechanism) of seizure of land plotsfor state and public needs, and that’s why the law has not yet determined which authority shall be entitled to make a decision on seizure of a land plot, and what authority should proceed with the seizure of a land plot, i.e., to execute the decision of the authorized body on seizure of a land plot. The absence of normative legal acts, regulating all procedural and substantive issues of seizure of land plotsand construction for state and public needs, leaves controversial issues regarding the legitimate exercise of seizure.

1. Articles 65-68 of the Land Code and the provisions of the Civil, Housing Codes of the Kyrgyz Republic, which govern the seizure of land plots and demolition of construction for state and public needs, do not regulate issues of notification of citizens and legal entities whose land is planned to be seized for state and public needs. Thus, the existing legislation does not define the rules for written notification of each owner/user of immovable property, for the timing of the notification,for public hearing of the impending seizure of land plots and/or demolition of premises, for the right of interested persons to submit for consideration of alternative options, as required by the above standards.

2. There is also a conflict with a provision of paragraph 1 of Article 44 and 47 of the Land Code of the Kyrgyz Republic, which states that "the building and construction is inseparable from the right to the land plot designated for these buildings and constructions" and at the same time states that "at the termination of a right to a land plot (i.e., seizure of a land plot for public and state needs) the fate of buildings and constructions, remaining on the land plot, is determined by its owner." It means that, if the State buys the land plot, it must buy everything that is on the land plot, but another rule may allow the State to buy only the land plot, but can tell the owner "you can take with youthe construction" and not to pay compensation for the construction. On the 22 occasions of seizures (132 people), there was no practice of compensation for the constructions, but it became the subject of pressure on the owner and manipulation when negotiating the buyout value and concluding Agreements.