OPEN STATEMENT BY OLGA ABDYGAPPAROVA REGARDING ABUSE OF POWER BY THE ALMATY CITY POLICE DEPARTMENT

OPEN STATEMENT BY OLGA ABDYGAPPAROVA REGARDING ABUSE OF POWER BY THE ALMATY CITY POLICE DEPARTMENT

From: Olga Abdygapparova, Director of LLP “AV Construction”

Almaty, Republic of Kazakhstan

STATEMENT

The Almaty City Police Department is conducting a pre-trial investigation into criminal case No. 247517031000472 regarding alleged fraud by the management of LLP “AV Construction” based on a complaint from a group of citizens who signed real estate purchase agreements for the Esentai City Residential Complex, including a case against Olga Abdygapparova.

According to the complaints from five citizens: G. Iztleuova, A. Telemisov, D. Mataibekov, A. Khaidar, and E. Kunanbaev, they signed PSPAs (Preliminary Sale and Purchase Agreements) during the tenure of Olga Abdygapparova as the Director of LLP “AV Construction.”

This criminal case should be terminated for the following reasons:

The pre-trial investigation was initiated and is being conducted in violation of legal requirements.

According to subparagraph 2, paragraph 12 of the Order of the General Prosecutor of the Republic of Kazakhstan No. 89 dated September 19, 2014 (Registered with the Ministry of Justice of the Republic of Kazakhstan on September 23, 2014, No. 9744):

Applications and reports are not subject to registration in the Unified Register of Pre-Trial Investigations (ERDR) in the following cases:
2) concerning violations based on the non-performance or improper performance of civil transactions conducted in written form and not recognized by the court as invalid, fictitious, or feigned.

This requirement does not apply to cases involving collective and numerous complaints regarding the dishonest performance of contractual obligations (shared construction, financial "pyramids," etc.).

In this case, the five applicants (G. Iztleuova, A. Telemisov, D. Mataibekov, A. Khaidar, E. Kunanbaev) are not considered "shareholders" because, according to subparagraph 19 of Article 1 of the Law of the Republic of Kazakhstan “On Shared Participation in Housing Construction,” shareholders are defined as:
19) a shareholder is a natural person (excluding temporarily residing foreigners) or a legal entity that has entered into a shared participation agreement in housing construction with the aim of obtaining a share in a multi-apartment residential building.

All the applicants signed Preliminary Sale and Purchase Agreements, not shared participation agreements.
Accordingly, the scope of circumstances has been incorrectly determined by the law enforcement authorities, and the case is being conducted unlawfully, which raises the issue of the lack of prosecutorial response measures by the Almaty City Prosecutor’s Office.

Part 1 of Article 11 of the Law of the Republic of Kazakhstan “On Shared Participation in Housing Construction” states:
Article 11. Agreement on Shared Participation in Housing Construction

1. The agreement on shared participation in housing construction is concluded in writing and is considered valid from the moment it is registered with the local executive body at the location of the multi-apartment residential building in the manner prescribed by Article 12 of this Law.

No shared participation agreements have been made with the applicants, nor have they been registered with the local executive body at the location of the multi-apartment residential building as stipulated by Article 12 of the Law.

Article 12 of the Law (Registration of Agreements on Shared Participation in Housing Construction) establishes:

1. The agreement on shared participation in housing construction, as well as amendments and/or additions to it, and the assignment of claim rights, must be registered with the local executive body at the location of the multi-apartment residential building through the unified information system of shared participation in housing construction.
2. Registration of agreements on shared participation in housing construction is carried out in accordance with the rules for maintaining the register of such agreements, approved by the authorized body.
3. There is no registration of the Preliminary Sale and Purchase Agreement (or the Sale and Purchase Agreement) in accordance with Article 12 of the Law and the Order of the Minister of Industry and Infrastructure Development of the Republic of Kazakhstan dated August 29, 2019, No. 678 "On Approving the Rules for Maintaining the Unified Information System of Shared Participation in Housing Construction," since it is not a shared participation agreement.

Thus, this pre-trial investigation does not comply with the requirements of the Order of the General Prosecutor of the Republic of Kazakhstan No. 89 dated September 19, 2014 (Registered with the Ministry of Justice of the Republic of Kazakhstan on September 23, 2014, No. 9744).

1. Clause 9.1 of the Preliminary Sale and Purchase Agreements signed by the parties states: “The legal validity, content, and execution of this Agreement shall be regulated and interpreted in accordance with the current civil legislation of the Republic of Kazakhstan. This Agreement does not fall under the Law of the Republic of Kazakhstan ‘On Shared Participation in Housing Construction,’ as it involves low-rise buildings with no more than three above-ground floors (excluding the attic).”
   This clause clearly indicates that the Esentai City Residential Complex is not a shared construction project and does not fall under the jurisdiction of the General Prosecutor's Order to initiate a pre-trial investigation. Consequently, in this specific case, all matters concerning the right of ownership must be resolved under Chapter 13 of the Civil Code of the Republic of Kazakhstan.
2. Moreover, Clause 9.3 of the Agreement specifies: “If disputes and/or claims arising from this Agreement or in connection with it cannot be resolved through negotiations within 15 (fifteen) days, such disputes and/or claims shall be settled by the parties in the authorized court of the Republic of Kazakhstan in accordance with the procedures established by the legislation of the Republic of Kazakhstan.”
   Accordingly, this issue should have been resolved by the applicants through court proceedings in accordance with the Civil Procedure Code of the Republic of Kazakhstan, which was ignored by the law enforcement authorities. Therefore, the Prosecutor's Office must take appropriate measures to terminate the pre-trial investigation and allow the applicants to file claims in the courts.
3. On February 26, 2024, Judge N.S. Serikova of the Medeu District Court of Almaty city, after reviewing the materials of the civil case No. 7517-24-00-2/5775, filed by Yerlan Kunanbaevich Kunanbaev against LLP “AV-Construction” to recover the amount owed, RULED:
   The claim was accepted for court proceedings, and a civil case was initiated. For the civil case to be considered, the court must prepare the case for trial.
   On April 18, 2024, the claim was dismissed due to the lack of pre-trial settlement. Consequently, a civil case was initiated back in February, which clearly indicates that the matter concerns civil-legal relations. This was overlooked by both the Almaty City Police Department and the Almaty City Prosecutor’s Office.
4. On June 26, 2024, Judge U. Abdimanap of the Medeu District Court of Almaty city initiated civil case No. 7517-24-00-2/18131, filed by Yerlan Kunanbaevich Kunanbaev against LLP “AV-Construction” to recover the debt.

• According to the court order dated June 3, 2024, a civil case was initiated under a simplified procedure. The defendant was sent a copy of the claim and was given until June 21, 2024, to submit a response to the claim.
• On June 19, 2024, the representative of LLP “AV-Construction” filed a petition to have the case considered under the general procedural rules.

According to Article 267-1 of the Civil Procedure Code of the Republic of Kazakhstan (CPC), the court switches to the general procedural rules if:

1. a party files a petition;
2. a third party’s petition to join the case is granted;
3. a counterclaim is accepted;
4. the judicial act passed in this case may violate the rights and legitimate interests of other persons;
5. it is necessary to conduct an inspection and examine evidence at its location, appoint an expert examination, or hear witness testimonies;
6. it is necessary to clarify additional circumstances or examine additional evidence.

Considering the statement by the plaintiff’s representative (lawyer) to review the case under the general procedural rules, in order to ensure the constitutionally guaranteed judicial protection of the rights, freedoms, and legitimate interests of citizens, organizations, and the state, the court ruled that the civil case should be considered under the general procedural rules.

Based on the above, and in accordance with paragraphs 3, Articles 267-1, 268-269 of the CPC, the court RULED:
The civil case filed by Yerlan Kunanbaevich Kunanbaev against LLP “AV-Construction” to recover the debt shall be considered under the general procedural rules.
The case preparation hearing is scheduled for 10:00 on July 11, 2024.
The ruling is not subject to appeal or review at the request of the prosecutor.

This judicial act once again confirms that the court has repeatedly determined that this category of cases falls under civil-legal relations, and the court’s rulings must be executed.

As stated in the above ruling dated June 26, 2024 — the ruling is not subject to appeal or review at the request of the prosecutor.

Accordingly, for all buyers who entered into Preliminary Sale and Purchase Agreements, if disputes arise, they must be resolved in accordance with civil law in the courts, as established by current legislation and confirmed by the above judicial acts of the Medeu District Court of Almaty city.

1. Furthermore, we have provided the Almaty City Police Department with an audit report conducted under the service agreement No. 35 dated July 3, 2024, with Saule Sagimbekovna Dzhunusbekova, the founder and head of the Limited Liability Partnership "AV-Construction," acting on the basis of the Charter and LLP “Astana Expert Audit.”

The following questions and materials were provided for the audit:
Item 1: Based on the information provided for the audit, provide a “breakdown of income and expenses of funds for the period from December 12, 2022, to December 28, 2023.”
Item 2: Based on the information provided for the audit, respond with substantiated findings on the question: “Was there any misuse of funds during the specified period?”

The following documents were presented for the audit covering the period from December 12, 2022, to December 28, 2023:

• Bank statements (data from online banking)
• Cash documents
• Issued electronic invoices
• Received electronic invoices
• 1C information database
• Copies of contracts, copies of payroll sheets, and other primary documentation

The management of LLP “AV Construction,” represented by Director Olga Abdygapparova from December 12, 2022, to December 28, 2023, is responsible for the completeness and accuracy of the financial documents submitted for the audited period.

The work was carried out in accordance with the International Standard on Related Services applicable to Agreed-Upon Procedures engagements. The procedures were performed in line with the agreed-upon conditions.

The audit report’s findings state that:
For Item 1 — the breakdown of income and expenses of funds for the period from December 12, 2022, to December 28, 2023, is presented in detailed and summary formats above.
For Item 2 — based on the results of the audit, it was established that all funds received by the partnership during the period from December 12, 2022, to December 28, 2023, were used for real estate construction and the operational needs of the partnership, in accordance with the Charter's established activities.

These circumstances indicate the absence of any violations during the directorship of Olga Abdygapparova.

Given these findings, the initiation of pre-trial proceedings based on the complaints of citizens who signed Preliminary Sale and Purchase Agreements for real estate belonging to LLP during the tenure of Olga Abdygapparova is unlawful and should be annulled or discontinued due to the absence of both the event and elements of a crime, as these matters are governed by Chapter 13 of the Civil Code of the Republic of Kazakhstan.

1. Additionally, the issue arises concerning the act of acceptance of the object for operation dated September 25, 2019, which states: “Construction and operation of the multifunctional residential complex ‘Esentai City,’ Republic of Kazakhstan, Almaty city, Medeu district, Al-Farabi Ave, buildings No. 116/23, No. 116/24, No. 116/25, No. 116/26, No. 116/27, No. 116/28, No. 116/29, No. 116/30, No. 116/44, No. 116/57.”
   The act confirmed the acceptance of the complex for operation.

Consequently, this issue also raises many questions and requires appropriate measures to be taken.

According to the aforementioned act, the residential buildings were accepted for operation, which directly indicates the fulfillment of contractual obligations.

1. In this case, in our opinion, the actions of the investigative unit of the Almaty City Police Department fall under the characteristics of abuse of authority and power abuse, as there are no grounds for initiating a pre-trial investigation. Officials persistently continue their attempts to investigate civil-legal relations within the framework of a pre-trial investigation, which is a gross violation of the law and cannot remain without appropriate response.

I believe that in this specific case, it is necessary to consider taking procedural action against the officials of the Almaty City Police Department, as well as to review the responsibility of the supervising prosecutor from the Almaty City Prosecutor's Office.

Based on the above, and in accordance with the norms of the current legislation of the Republic of Kazakhstan,

I REQUEST:

1. To review this complaint on its merits.
2. The Anti-Corruption Agency of the Republic of Kazakhstan and the National Security Committee of the Republic of Kazakhstan are requested to conduct an appropriate investigation into all the facts stated in this appeal and, based on the results of the investigation, consider taking procedural action against the officials of the Almaty City Police Department.
3. The General Prosecutor’s Office of the Republic of Kazakhstan is requested to conduct an investigation on this matter with the involvement of the central office of the General Prosecutor's Office of the Republic of Kazakhstan, as there is no trust in the Almaty City Prosecutor's Office, which has been repeatedly pointed out in our appeals.

Based on the results of the investigation, I request to terminate the pre-trial investigation in criminal case No. 247517031000472.

I request that this appeal be considered as soon as possible, as there are clear violations of the law, and it is necessary to take urgent measures and hold the responsible parties accountable.

Olga Abdygapparova

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