Problems of road construction companies were discussed at the joint meeting of the Council for the protection of the rights of entrepreneurs of NCE and the Chamber of Entrepreneurs of Zhambyl region

The meeting was held with the participation of the Chairman for the Protection of the Rights of Entrepreneurs NCE RK "Atameken" Gani Kasymov and the Commissioner for the Protection of the Rights of Entrepreneurs of Kazakhstan Bolat Palymbetov.

The roads for a billion

The Council has considered the matter of the construction company, which because of the actions of local officials, incurred damaged in the amount of 9.5 million tenge. According to the analysis conducted by RCE of the performance of contractual obligations in the field of public procurement for 5 months of 2016, the Department of construction, public transport and roads under Akimat of Zhambyl region has concluded contracts with 19 entrepreneurs for the medium repair of public roads at 52 facilities totaling 2 billion 810 million tenge. The analysis of the conducted mid-level repair of public roads has identified violations that infringe the rights of entrepreneurs. The expert of the department for the protection of the rights of entrepreneurs and reduction of administrative barriers Berick Myrzakhmetov told about them.

For example, LLP “KATSA” faced a problem, which became the winner of the competition for the middle road repair in the amount of 88 million tenge.

According to the contract, the customer  gave the contractor the design and estimate documentation, which didn’t have the section "environmental impact assessment" and the environmental impact assessment on the DED. The customer has refused to finalize this section and to get the state examination. In order to avoid penalties, the entrepreneur was forced to do it at his own expense. But the customer refused to reimburse incurred additional costs, arguing that DED for the average repair of public roads is subject to an internal expertise, which does not require an environmental impact assessment.

"This violation occurred by the fault of the customer and the departmental expert in the face of Transport Infrastructure Development Committee of the Ministry of Transport and Communications of Kazakhstan, which approved and adopted DED without environmental impact assessment", - believes the expert.

As a result of the systemic violations of the legislation, entrepreneurs bear losses of about 9.5 million tenge.

The Council recommended that the Chamber of Entrepreneurs of Zhambyl region should contact the prosecutor's office to conduct an inspection for the presence of violations of the law in the activities of the Department of construction, passenger transport and motor roads of akimat of Zhambyl region during the development of DED.

Do not deprive business!

One of the problematic issues discussed at the Council became illegal alienation of business (raids) on the example of two businessmen - Zurab Dzhanashia and Anton Alimov.

The director of the department of legal protection NCE RK "Atameken" Oleg Savelenko spoke in detail about the case.

According to him, on the basis of the law of the Republic of Kazakhstan dated by January 11, 2011 the Criminal Code of the Republic of Kazakhstan (in the old edition) has been supplemented by a new Article 226-1 - raiding. This provision exists in the Criminal Code of the Republic of Kazakhstan, which entered into force on 1^st of January 2015.

"However, in practice, this provision of the law, which is aimed at protecting the business, does not work in a proper degree, as it is evidenced by statistics and treatment of entrepreneurs coming to the National Chamber of Entrepreneurs of Kazakhstan "Atameken", - he said.

Oleg Savelenko cited statistics that convincingly proves it:

- In 2015 only 1case out of 9 criminal cases on raiding has been submitted for review at the court;

- In 2014 only 2 cases out of 3 similar criminal were sent to the court;

- In 2013 - 2 criminal cases on raiding were production, but didn’t reach the court.

"These findings, in our view, point to the absence of specific judicial and investigative practice in cases of this category, as a result of which certain persons are illegally deprived of their business", - he said.

He cited two examples. So, the founder of LLP "Company Astana Samson Trade" Zurab Dzhanashia addressed to NCE for protection of the rights. As the businessman said he had been unlawfully deprived of property of the partnership along with other co-founder A.Sabazovym as a result of illegal actions of the third co-founder B. Kelesova and the director of the LLP O. Abdraimov, as well as result of actions of the state bodies of Zhambyl region. According Z. Dzhanashia, by the decision of Taraz city court in November 2014 was approved a settlement agreement between B. Kelesova and LLP "Company Astana Samson Trade" in the face of O. Abdraimov, under which all the assets of the enterprise - administrative and industrial buildings - are handed at the expense of existing debt in the amount of 46,326,000 tenge. The reason for filing a lawsuit were statements on receipt of money with forged signatures of Z. Dzhanashiya K.Kasymova, who never worked at the enterprise. This entrepreneur has learned about it only in 2015. He repeatedly tried to challenge the statement in the court, DIA of Zhambyl region opened a criminal case, which has not received logical conclusion to this day.

The Council recommended NCE RK "Atameken" apply to the General Prosecutor's Office of Kazakhstan, to verify legitimacy of court decisions on the conclusion of a settlement agreement between B. Kelesova and director "Company Astana Samson Trade" O. Abdarimov and whether the rule of law was observed in the actions of the Department of the Interior in the criminal case at the request of Z. Dzhanashia.

In the present case the Council has listened to all parties. Gani Kasimov said that the issue isn’t simple, the actions of DIA of Zhambyl region are incomprehensible. The Council adopted a resolution "to recommend to NCE RK "Atameken" to appeal to the Prosecutor General of Kazakhstan on legality of the actions of the Department of Internal Affairs of Zhambyl region in the criminal case at the request of Z. Dzhanashia".

Another entrepreneur - a citizen of the Russian Federation Anton Alimov believes that he was illegally deprived of his position of General Director, followed by a redistribution of his stake at LLP "Ekolos-Asia", registered in Astana and the member of which he is with a share of 50%.

The appeal states that the other co-founder of the association A. Gulin - forged the protocol of the general meeting and increased its stake to 85% and appointed himself the head of the company in order to get hold of funds , belonging to LLP "Ekolos-Asia".

NCE RK has provided legal advice to A. Alimov, as a result the entrepreneur managed to prove in the court forgery of A.Gullin. After Alimov again appealed to NCE RK for assistance to put A. Gullin under prosecution. This appeal was sent to the Department of State Revenue of Astana, which, in turn, redirected the appeal to the Department of Internal Affairs of Astana. However, despite the repeated letters of NCE RK to law enforcement bodies to provide information regarding the appeal of Alimov A.V., they do not respond to appeals.  

In this regard, the Council recommended NCE RK "Atameken" to appeal to the prosecutor's office in Astana and to verify the legality of the decision of the Department of Internal Affairs of Astana regarding the appeal of A. Alimov.

Those, who rent, decide

The Council also discussed topical issues of Kazakh businessmen - the problem of increasing the cost of leasing of canteens at public institutions. Previously, businesses paid 300 thousand tenge for rent, but now the amount has grown to 5 million. After the intervention of NCE the amount has been reduced to 3.5 million.

Gani Kasymov, the Chairman of the Board asked the Business Ombudsman Bolat Palymbetov to intervene in the matter: "It is necessary to cancel the decision and to intervene in this acute problem".

The Commissioner for the Protection of the rights of entrepreneurs, noted that he is a supporter of the market economy, stressed that "he sees the best solution in the regulation of the rental cost by the entrepreneurs". "If there is a tender, entrepreneurs, who participate in it, should offer their rental amount, then the problem will be solved", - he said. According to the Business Ombudsman the Council shouldn’t make a decision and set a fixed amount of rent. "For entrepreneurs in a city, it maybe a normal amount, but for rural areas, it can be expensive”, - he said.