Address of the Constitutional Council "On constitutional legality in the Republic of Kazakhstan" of June 19, 2014 №09-3/1

 

         In accordance with paragraph 6) of Article 53 of the Constitution of the Republic of Kazakhstan and subparagraph 2) of paragraph 4 of Article 17 of the Constitutional Law of the Republic of Kazakhstan of December 29, 1995 № 2737 "On the Constitutional Council of the Republic of Kazakhstan" Constitutional Council of the Republic of Kazakhstan presents to the Parliament of the Republic of Kazakhstan Address "On constitutional legality in the Republic of Kazakhstan".

In the constitutional development of Kazakhstan declaration by the President of the Republic - the Leader of Nation N. A. Nazarbayev of national idea - "Mangilik El" was the major event which logically follows from the Basic Law.      

In commemoration of historical value of the Constitution of the Republic of Kazakhstan the coming 2015 is declared by the Head of state as the year of the twentieth anniversary of the Constitution, Assembly of People of Kazakhstan.

For the period which expired from the moment of announcement of the previous messages of the Constitutional Council  the major state decisions serving to further increase of efficiency of realization of creative potential of the Constitution of the country are carried out in the Republic of Kazakhstan.

Last year became starting in formation of the effective base of realization of epoch-making Strategy "Kazakhstan-2050". Further improvement of the economic relations, strengthening of the Kazakhstan statehood move ahead through strengthening of democratic principles in formation and departure of the government at all levels, expansions of powers of representative bodies, social partnership, decentralization of management, formation of professional government.

In August, 2013 for the first time in the history of independent Kazakhstan elections of  more than 91% of all akims (mayors) of the country within areas of whose   responsibility live about 8 million Kazakhstan citizens took place. Additional powers and necessary financial and other resources for effective implementation of the functions are conferred to akims by the taken legislative and organizational measures. Selectivity of akims expands possibilities of strengthening of control of activity of local akims by population, and also promotes growth of influence of citizens on a social and economic situation in each separate territorial community. Thus, one more important step on the way of modernization of political system, expansion of practice and traditions of active participation of Kazakhstan citizens in local public administration and self-government is taken.

Carrying out administrative reform actively proceeded. On a competitive basis the National commission on personnel policy under the President of the Republic of Kazakhstan created essentially new category of professional managers – the class "A" of administrative public service, responsible for realization of the concrete directions of a state policy.

The President of the Republic of Kazakhstan in the Message of January 17 this year "The Kazakhstan way-2050: The uniform purpose, uniform interests, the uniform future" (further - the Message) unveiled the main objectives and the plan of entry of Kazakhstan into thirty of most developed countries of the world. For the embodiment of this course in life the Leader of Nation approved the Concept on entry of Kazakhstan into number of thirty most developed states of the world in which key trends, calls, opportunities and the perspective directions of long-term development of the country are designated. Need of improvement of work of the state institutes, further realization of the principles of the rule of law and equality of all before the law, ensuring transparency and availability of judicial system, increase of efficiency of activity of law enforcement agencies, formations and realization of new anti-corruption strategy, increase of legal culture of the population is especially noted. 

These constitutionally significant installations of Strategy "Kazakhstan-2050"   and Messages of the Head of state are systematically carried out.

For ensuring competitiveness of national legal system in all its key branches, both public, and private law, the Decree of the President of the Republic of Kazakhstan of January 16, 2014 №731 made changes and additions to the Concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020. They are directed on formation of new generation of the national legislation answering to the modern realities and tendencies occurring in world legal space. The head of state  approved the Conceptual plan of legislative work for 2013-2016 which is aimed at consolidation of legislative initiatives (The decree of August 9, 2013 №610), and also the State program of further modernization of law-enforcement system for 2014-2020 and the Concept of personnel policy of law enforcement agencies (The decree of December 31, 2013 No. 720) realization  of which will allow to provide creation of the law-enforcement system conforming to the  international standards and the purposes of Strategy "Kazakhstan-2050".

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Signing in Astana on May 29 of this year of the Agreement of the Eurasian Economic Union which is a legal basis of new international economic association became a significant event.

The admission of the Constitutional Council of the Republic of Kazakhstan into structure of the World conference on the constitutional justice – the international association of bodies of the constitutional control founded for ensuring close cooperation at world level between the constitutional courts and equivalent institutes in the sphere of ensuring rule of basic laws confirmed the  successful strengthening of constitutionalism in Kazakhstan.  

         In general the process of gradual updating of mission, shape and forms of functioning of the state in political, economic and social coordinates of the Kazakhstan society in the conditions of globalization proceeds.

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The Constitutional Council according to articles 72 and 78 of the Basic Law gave official interpretation of a number of norms of  Constitution of the Republic of Kazakhstan, constitutionality of some provisions of acts was checked. Proceeding from the system legal analysis of the constitutional norms in their logical connection and  an associativity  to general provisions and the principles of the Constitution, in the adopted normative resolutions legal positions of the Constitutional Council are defined. In particular,   the application of legislative norms has to be carried out proceeding from recognition by the Constitution of the person, his life, the rights and freedoms as the supreme values and can't lead to infringement of constitutional rights and freedoms of the person and citizen.

 

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Positive tendency of consecutive constitutional modernization is the account the legislator and law enforcement officials of the legal positions of the Constitutional Council formulated by it in standard resolutions, and also the recommendations and offers containing in its messages. A number of the adopted acts and other decisions testifies to it.

So, in pursuance of the normative  resolution of the Constitutional Council of April 13, 2012 No. 2 “Of official interpretation of norms  of the Constitution of the Republic of Kazakhstan concerning calculation of the constitutional terms" Parliament of the Republic  adopted the Constitutional law of the Republic of Kazakhstan of October 3, 2013 No. 133-V "Of changes  and additions in some constitutional laws of the Republic of Kazakhstan concerning calculation of the constitutional terms", directed on streamlining of an order of calculation of the beginning and the termination of the terms provided in some constitutional laws. Besides, the Law of the Republic of Kazakhstan of March 24, 1998 No. 213-I “Of regulations" is added with the new article 6-1 fixing rules of calculation of the terms established by legislation.    

The constitutional law of the Republic of Kazakhstan of July 3, 2013 №121-V "Of changes and additions in the Constitutional law of the Republic of Kazakhstan and in some acts of the Republic of Kazakhstan concerning an exception of contradictions, gaps, collisions between rules of law of various acts and norms promoting commission of corruption offenses" provided the innovations assuming a regulation of procedure of the appeal of courts to the Constitutional Council.

For implementation of the normative resolution of the Constitutional Council of October 15, 2008 №8 and the additional resolution of the Constitutional Council of May 16, 2013 No. 2 "On interpretation of the Normative  resolution of the Constitutional Council of the Republic of Kazakhstan of October 15, 2008 №8 "On official interpretation of article 54, subparagraphs 1) and 3) point 3 of article 61, and also some other norms of the Constitution of the Republic of Kazakhstan concerning the organization of public administration" the Law of the Republic of Kazakhstan of January 13, 2014 №159-V "On making amendments and additions to some acts of the Republic of Kazakhstan concerning fixing of competence of government bodies at the legislative and (or) subordinate levels" by which the number of legislative acts the functions of government bodies which aren't basic  are excluded,  was adopted.

In pursuance of articles 13 and 16 of the Constitution of the Republic of Kazakhstan and recommendations of the message of the Constitutional Council of June 12, 2012 №09-3/1 for further improvement of system of rendering the free qualified legal aid by the Head of state signed on July 3, 2013 the laws of the Republic of Kazakhstan adopted by Parliament "On the legal aid guaranteed by the state" and "Of making amendments and additions to  some acts of the Republic of Kazakhstan concerning improvement of system of rendering the legal aid guaranteed by the state". They create additional conditions for realization of the rights of everyone for receiving the qualified legal aid given on a free basis at the expense of budgetary funds define the uniform administrator of all budgetary programs for all types of a free legal aid, and also establish an obligation of all government bodies within the competence to give to any addressed natural person a free legal aid in the form of legal informing.

The Parliament adopted the laws “Of road traffic” and “Of making amendments and additions to some legal acts of the Republic of Kazakhstan  on questions  of road  traffic”, in which the norms directed to  realization of the recommendations of the Constitutional Council in its message of June 12, 2012  №09-3/1. In accordance with the requirements of the article 39 of the Constitution of the Republic of Kazakhstan the rights and obligations of the drivers, passengers and foot-passengers, regulation of the law-restricting character measures are taken from sublegislative level into legislative level.

The recommendations of the message  of the Constitutional Council  of May 25, 2010  №09-5/1 of  elimination of   shortages of the article 484 of the Code of the Republic of Kazakhstan  of administrative procedures of January 30, 2001 №155-II,  setting responsibility for systematical  infringement of the rules of exploiting and  road  traffic by  people, driving  cars,  according to information of the Ministry of internal affairs of the Republic of Kazakhstan, are realizing in the new edition of the Code of the Republic of Kazakhstan of administrative procedures.

         The Ministry of Justice of the Republic of Kazakhstan in common  with  concerned  state  bodies conducts the large-scale analysis  of the legislation on the subject  of its correspondence to the requirements  of paragraph 1 article 39 of the Constitution. This job is being conducted for  implementing of the recommendations of the messages of the Constitutional Council of June 16, 2011 №09-5/1 and of June 12  № 09-3/1, in which it is said of  necessity and consolidation  exclusively in laws not only in the list of restricting rights and freedoms, but mechanisms of  using such mechanisms.  

The development of the project "Of Legal Acts" proceeds. It is aimed at implementation of the normative resolution of the Constitutional Council of March 6, 2013 No. 1 in which it is explained that by a subject of legal regulation of the special law various questions of law-making and law-enforcement activity of government bodies and officials, including an order of development and adoption of the legal acts which aren't normative can be captured. The legislator has the right to define a subject of its legal regulation, using the powers provided by the Constitution.

         According to provisions of Strategy "Kazakhstan-2050" Parliament  adopted new Criminal, Criminal procedural and Criminal –executive Codes. They are urged to serve interests of protection of constitutional rights and freedoms of the person and citizen and the solution of tasks of a conclusion of law-enforcement system of the country to the level allowing to react adequately to modern challenges. At the request of the Head of state the project of new edition of the Code of civil procedure which assumes modernization of civil legal proceedings for the purpose of increase of its efficiency and debureaucratization, ensuring wide use of technical means in activity of the courts, and also active application of mediation and conciliatory procedures prepares.

Taking into account that in the given fundamental legal acts the institutes, for the first time   introduced into national legal system for the achievement of high  aims the organizational, legal, personnel,  explanatory and other measures, that create necessary conditions for transition  to the new regime of legal regulation of the shown spheres of state legal policy.

 

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Positively estimating steady tendencies at realization of norms of the Constitution, the Constitutional Council considers important to note the following.

Increase of level of realization efficiency of potential of the Constitution of the Republic of Kazakhstan at a new stage of development of the country, to preservation and consolidation of a role of the Basic Law as most important means of guaranteeing stability of the state and society, to development of system of the law in force will be promoted by the judgment of values, ideas and provisions of the Basic Law deepened taking into account the latest realities.

The analysis of final decisions of the Constitutional Council, annual messages about a condition of the constitutional legality in the Republic allows stating the following recommendations and offers.

The first, complexity of the constitutional matter, variety and mobility of the relations of the constitutional regulation, objective evolution of all aspects of life of the Kazakhstan society demand the unconditional accounting of sense of the constitutional values, provisions and norms as at acceptance, and application of laws, and also special scrupulousness in use of the constitutional conceptual framework. The maintenance of the major public relations making bases of the constitutional system, relationship of the personality and the state is embodied in the terms used in the text of the Basic Law: presidential government, unitarity of a state system, constitutional rights and freedoms of the person and citizen, system of the supreme and local government bodies and others. The correctness of use of the corresponding concepts influences in quite often defining way the contents and an orientation of law-making, the subsequent application of laws and other regulations.

The Law of the Republic of Kazakhstan of November 27, 2000 №107-II "Of administrative procedures" enshrines the  concept of state  body as public institution, authorized  by Constitution,  laws, other regulations to implementation on behalf of the state of certain functions (article 1). Thus, the state body has to have by all means the status of the legal entity in the form of public institution. This approach, according to the Constitutional Council, washes away the public nature of state bodies, leads to mixture of the state and power and private-law nature of their legal status. While making amendments to this law it is expedient to specify a subject of its legal regulation to concentrate application of the law only on the state bodies which are carrying out executive functions. 

The constant attention is demanded by questions of ensuring due conceptual study of bills, coherences of regulations among themselves. Prognosis and analytical work, the mechanism of definition of possible social and economic, legal and other consequences of adoption of laws, financial validity of proposed measures of legal regulation of the public relations needs new approaches. The Constitutional Council paid attention in a number of the messages to these problem tasks (of June 12, 2012 No. 09-3/1, of June 12, 2013 No. 09-3/1 and others).

The second, the Constitutional Council repeatedly emphasized the necessity of the maximum synchronization of the publication of acts and the subordinate regulations accompanying them. The relevant requirement is included in the current law of the Republic of Kazakhstan "Of normative legal acts". However it isn't always observed, and subordinate legal acts are quite often adopted with essential delay or aren't accepted in general in this connection the imbalance of legislative and subordinate regulation is observed.

For example, the Code of the Republic of Kazakhstan "Of health of the people and health system", establishing a ban on smoking in certain places, defines that the places allocated especially for smoking have to be equipped according to the requirements established by the Government of the Republic of Kazakhstan (article 159). For violation by the employer of the legislation of the Republic of Kazakhstan providing allocation of special smoking areas, and also rejection of measures to smokers in the special places which aren't defined for this purpose administrative responsibility (article 336-1 of the Code of the Republic of Kazakhstan about administrative offenses) is established. However during the three-year period of action of the specified ban requirements imposed to the places allocated especially for smoking aren't approved.

The third, with formation of supranational regulators of the international integration associations decisions of which bear  obligatory character, for the parties, questions of monitoring of international legal acts regarding their compliance to the Constitution of the Republic of Kazakhstan were staticized.

In the normative resolution of November 5, 2009 №6 the Constitutional Council specified that according to points 1 and 2 of article 4 of the Basic Law, the decision of the international organizations and their bodies formed according to international treaties of the Republic of Kazakhstan shouldn't contradict the Constitution of the Republic of Kazakhstan. The decisions of the international organizations and their bodies violating provisions of point 2 of article 2 and point 2 of article 91 of the Constitution that the sovereignty of the Republic extends on all its territory and about inadmissibility of change established by the Constitution of unitarity and territorial integrity of the state, the Republic form of government can't be recognized as obligatory for Kazakhstan. Also can't be applied directly and, respectively, have a priority before regulations of the Republic of Kazakhstan the decisions of the international organizations and their bodies striking constitutional rights and freedoms of the person and citizen.

In this regard it is expedient to strengthen the level of expert work at a stage before signing and ratification of international treaties, including their check on compliance of the Constitution.

On belief of the Constitutional Council, unconditional and appropriate ensuring of supremacy and direct action of the Basic Law, steady observance of the constitutional material and procedural instructions is the indispensable requirement for all state and public institutes, officials and citizens. 

Embodiment of will of the people in laws and other major state acts, and also continuous improvement of procedures of influence of citizens on public institutes are an effective guarantee of internal stability, economic progress and improvement of welfare of the population.

It is necessary to keep and strengthen further trust of Kazakhstan citizens on the basis of the constitutional values, social partnership, combination of interests and interaction of the personality, society and the state. Strict following of the Constitution – is a guarantee of progressive development of Kazakhstan.