Brief report of a analysis of Mongolian laws and regulations, law force acts and rules related to residents` rights

Introduction

The analysis is conducted in the framework of the project “ Initiating Citizens Stairwell Democracy Movement” which financially supported by Asian Foundation. This report analyses Mongolian laws and regulations relating to residents’ legitimate rights and interests. The report of analyses 13 Mongolian laws and 2 resolutions from Parliament, 2 Government regulations relating to their implementations, 24 rules, norm, decisions and orders by City Governor, the Ministry of Infrastructure, the Apartment and Public Utility Service Department and its branch offices, the AOA and its Supreme Council.

Goals and methods
The Constitutional guarantee right to live in healthy and safe environment and to be protected against environmental pollution and ecological imbalance applies to every owner of apartments. The goal of the research is to analyze the legal environment of the residents and how residents exercise their rights and interests in practice.

Period and method of research
The project team has gathered information, Mongolian laws and regulations, law force acts and rules related to the residents` rights and interests needed for its database during the period time 5th –31st October. From1st –to 10th November the team has worked on analyzing of laws and regulations. From 11th –to 20th November the team has worked on the developments of its report.

The team has used the methods of analyzing, comparing, combing conclusion and for the development of the report compared results of the survey for residents and the study of current operations of AOA, local government organization (khoroo) and Apartment and Public Utility Service Office (kontor) and their relations.

Importance of the research
This research is a first attempt to analyze how residents’ Constitutional right to live in healthy and safe environment is protected in other laws and regulations and how residents exercise these rights in practice. This analysis creates database of laws and regulations relating to residents rights and interests and AOA operations and outlines necessary measures to protect the residents’ rights and interests in the legal framework. The analysis is important in our further activity to introduce residents their rights and obligations under the laws and support the AOA activities to work in way of principles of democracy.

The analyses divided in 4 sections:
Section 1: Legal status of apartments owners and their participation
Section 2: The legal status of an organization protecting apartments owners interests
Section 3: Apartment buildings and its surrounding territory
Section 4: Repair and utility service for apartment and its owners

SECTION 1. LEGAL STATUS OF RESIDENTS

Every one has right to life. This right is guaranteed in the Universal Human Rights Declaration (Article 3) and Constitution of Mongolia (Article 16.1.). Implementation for this right, citizen has right to live in healthy and safe environment and to be protected against environmental pollution and ecological imbalance, which is also guaranteed in the Constitution. Under the International Law and Constitution the State has positive obligation to guarantee these rights.

The legal status of apartment owners are protected in the Article 5 and 16 of the Constitution of Mongolia which states:
2) The State recognizes all forms of both public and private property and shall protect the rights of the owner.
Article 16. 3) Right to fair acquisition, possession and inheritance of movable and immovable property.

According to the Law on Privatization of Apartment Buildings, 84 thousand apartment buildings, which are 96.4 per cent of public dedicated apartment buildings, have transferred to the property of residents, from 1997-2000. To supply normal use of the apartment buildings and to protect residents rights the Parliament passed the Law on Common Jointly Ownership of Apartment Buildings in 1996 and under this law established Apartment Owners Associations (recently 470 AOAs registered) with purpose to exercise of right of common jointly ownership of communal property of the apartment buildings and to protect residents right and interest. (22 percent of the population of Mongolia live in public dedicated apartments.) The new Law on Legal Status of the Apartment Owner Association (AOA) and Communal Property of Public Dedicated Apartment is passed in June 2003 that regulates the relations relating to the AOA in broader sense. The relations relating to residents right to ownership of public dedicated apartment building solely or jointly are regulated in the Sub Section 5 of the Civil Law.

On residents participation
Citizens right to free expression and information are protected in article 16, 17 and right to submit a petition or a complaint to State bodies and officials and right to appeal to the court to protect his/her rights if, he/she considers that the right of freedoms as spelt out by the Mongolian law or an international treaty have been violated and to be compensated for the damage illegally caused by others are also protected in article 12,13 of the Constitution of Mongolia.
According to the article 7., 9, paragraph 13.1.4 of the law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment, the residents have right to elect the Managing and Executive bodies of the AOA and participate all main decision making processes of the AOA and take control over the AOA activity. Also, article 147, 148 of the Civil Law says that the residents have right to know and take control over financial expenditure of the AOA.
But, paragraph 7.2.6 of the law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment and paragraph 11 of the rule for AOAs which was approved by Supreme Council of the AOAs are impose obligation to the Supervising Council to keep in secret the financial report of the AOA, which is restrict residents right to know and take control over the AOA activity.

SECTION 2: THE LEGAL STATUS OF ORGANIZATION PROTECTING APARTMENTS OWNERS RIGHTS AND INTERESTS

Paragraph 143.3. of the Civil Law and paragraph 4.1.3 of the new Law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment prescribed “ ……the AOA shall not has legal entity’s rights”

But, the Civil Law says that entity that has no legal person’s rights is also a participant in the civil legislation relation and legal status of this association determined in paragraph 36.1. of this law. Paragraph 25.1. of the Civil law determinates the legal status of the legal entity. It says legal entity is an organization, which… from the own assets can take responsibility for the results that arises out from its activity. According to the paragraph 15.3. of the Law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment, the association’s fund can be expended only for purpose for use, protect, repair and service for the communal property. So, AOA `s status could not meet to the requirements of the legal person. That’s why paragraph 12.6. of the Law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment prescribes that “Executive Director of the AOA shall be responsible from own assets for the damages caused to the AOA property, if he/ she abuses his/her rights. As the AOA is a participant in the civil legislation relation, AOA`s representatives can sue and to be sued in the Court by the Law on Civil Jurisdiction (paragraph 12.1.1., 12.1.2.).

SECTION 3. APARTMENT BUILDINGS AND ITS SURROUNDING TERRITORY

The Article 8 of the law on Construction, imposed requirements to the constructions to guarantee persons pleasant condition of work and live, supply not harmful circumstances for persons health and security and supply condition for to free use of public place such as street, squire, resting, picnic, sport and orchard and protect environment from noise, vibration, smoke, poison gas, rubbish, active X-rays substances and soil pollution and prohibited to start and continue construction work without permission from an authorized organization. To supply residents healthy and safe environment there are 311 national standards for producing drawing projects and 142 construction norms and rules. For example: for a per person allocated 6m2 green area outside of apartment buildings and there is should be at least 2.5 hours the San shine reflection through the windows of apartment building, the wide of walkways should be at least 0.75m and the territory of the children playground and walkways shall be 30 per cent from land in use and so on. In practice these norms and standards not subjected when building new buildings in the apartment blocks.

Paragraph 16.1. of the Law on Apartment Buildings says, “Apartment owner can manage manufactures and services that not violate residents rights and interests. The City Manager gives permission for residents to reconstruct the construction of first floors on the basis of drawing project and manage manufactures and services according to the direction # 222 of the City Governor. In practice, mostly all of first floors are reconstructed for business functioning and residents’ rights also violate by uncomfortable live condition in their apartment buildings caused due to dangerous reconstruction and not suitable services in their first floors.

SECTION 4. REPAIR, SUPLLY, SERVICE FOR APARTMENT BUILDINGS

The Apartment and Public Utility Service Offices are responsible to provide repair and service for water, electricity and engineering facilities of the apartments buildings. The Apartment and Public Utility Service Offices follow specific norms and standards in their services and have a rate for the services that approved by the order # A/08 of the Chair of the Apartment and Public Utility Service Department. But instead of to serve residents effectively and properly these organizations violate residents’ rights and interests. For example, to account the residents water uses the Apartment and Public Utility Service Office has placed a measurement for water use in the apartment buildings in the framework of the project “Improvement of Apartment and Public Utility Service of the Ulaanbaatar City”. This measurement is important to save clean water, to teach residents to better consume and it also could save the residents money. But in practice there are lots of complain from residents, because Apartment and Public Utility Service Offices put one measurement in each doorways of apartment building, payments for water use are divided equally for all consumers, which is not fair for some consumers who used water not as much as others. Another fact is supervisors of the Apartment and Public Utility Service Office write bills on the expenditure of the electricity more that resident use. Reason for that is the supervisor salary depends on income that they bring to the Apartment and Public Utility Service Office.

CONCLUTION

From 1991 citizens movement from county side to the city is increasing and same time increasing number of buildings that is good for the city development, but it is important to consider citizen's right to live in healthy and safe environment. Residents rights and interests are protected properly in the Constitution and other related laws and regulations such as Civil Law, Law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment and Law on Construction and so on. But, in order to make more favorable of living environment for the residents and secure their rights and interests in practice, we suggest some amendments in the related laws and more effective mechanisms.

- There is should be power of Citizens Representatives Hural to affect on the decisions of the City and District Governors. Citizens’ Representatives Hural, which is elected by citizens, has no right to affect on the decisions of Governors. The Governors take decision on land possession and use according to the approved plan of a general project of city development, which is approved by a Citizens Representatives Hurals. In case of to abolish unlawful decisions of the Governors, only the upper stage Governor or he has rights on it.

- There is should be power from the AOA on the decision of possession of the AOA`s surrounding territory. Paragraph 18.1.4 of the Law on Legal Status of the AOA and Communal Property of Public Dedicated Apartment says that the City and District Governor gives opportunity to the AOA to take advantage of use its surrounding territory on the basis of agreement. But its not clearly says that AOA either has right to decide on possession issues concerning in its surrounding territory. This provision should be clearly defined.

- Paragraph 7.2.6 of the law on Legal Status of AOA and Communal Property of Public Dedicated Apartment should be removed from the law.

- Need more effective mechanism. There are no effective mechanisms to protect resident’s rights and respond public authorities on their unlawful decision. The following mechanisms that should work to protect residents’ rights not efficient. Human Rights National Commission specifies not to receive complaints from residents concerning to damages and violations caused by public authorities. The residents complain against unlawful decisions of the public authorities to the Court takes long process and require high law expenses. Administrative procedure itself very bureaucratic to receive complaints and take decision.