Address by the Constitutional Council of the Republic of Kazakhstan "On the constitutional legality in the Republic of Kazakhstan» of 12 June 2013 № 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".

Address "On the constitutional legality in the Republic of Kazakhstan".

In 2012, in the Republic of Kazakhstan has adopted a number of important state decisions, aimed at the embodiment of the principles and norms of the Basic Law of the country, allowing the most efficient application of state resources in order to improve the quality of life of citizens.

President of the Republic of Kazakhstan - Leader of the Nation Nursultan Nazarbayev on December 14, 2012 in his address to the people of Kazakhstan "Strategy "Kazakhstan- 2050": a new policy of a successful state" defined long-term directions for further development of the Republic.

This policy document containing the main vectors of the evolution of economic, political, legal, social , cultural and other spheres of social life of the Republic of Kazakhstan, also determines the prospects of constitutional development and the strengthening of state constitutional law in the country.

By Decree of the President of the Republic of Kazakhstan of December 18, 2012 № 449 "On measures of realization the President's Address to the people of Kazakhstan of December 14, 2012 " Strategy of "Kazakhstan- 2050": a new policy of a successful state "a national plan of actions to implement the Address of the President of Kazakhstanis approved.

In the keynote paper of July 10, 2012 "Social modernization of Kazakhstan: Twenty Steps to Universal Society of General Labour" President outlined the main directions of construction of the Society of General Labour and defined the principles of further social modernization of the state and society . It focused goals and objectives of the construction of the social state, associated with profound implementation of the constitutional foundations of the economic development of the state and society for the benefit of all the people (paragraphs 1 and 2 of Article 1 of the Constitution ), the right to freedom of Labour, to free choice of occupation and profession, the right to conditions of labor that meet the requirements of safety and hygiene, remuneration for labor without any discrimination, as well as social protection against unemployment (paragraphs 1 and 2 of Article 24 of the Constitution), the right of everyone to freedom of entrepreneurial activity (paragraph 4 of Article 26 of the Constitution), and others.

During the 67th session of the General Assembly of the United Nations which was held on November 12, 2012 Kazakhstan was elected a member of the UN Human Rights. This decision once again confirms the success of the country in ensuring the rule of law, and imposes the obligation to comply with the generally accepted principles of human rights and freedoms of man and citizen.

On November 22, 2012 the General Assembly of the International Exhibitions Bureau in Paris, capital of Kazakhstan, Astana announced the venue for "Expo -2017", and that is the recognition of the international community, economic, scientific, technological, social and cultural achievements of the Republic and its role in shaping new approaches to the development of the global economy in such actual spheres for all mankind as the energy of the future, alternative energy sources and "green economy".

With the growing authority of the Republic of Kazakhstan and its growing position in the international community international relations of the Constitutional Council of the Republic of Kazakhstan also promote and strengthen.

As it is known, in accordance with the Decree of the President of the Republic of Kazakhstan of March 13, 2012 № 283 Republic of Kazakhstan became a member of the European Commission for Democracy through Law (Venice Commission). The main objective of this Commission is the cooperation of constitutional control bodies in promoting the basic values of legal state, human rights and democracy; in the effective functioning of the democratic institutions and the implementation of the rule of law, and in the consolidation of fundamental rights and freedoms, particularly those relating to the rights of citizens to participate in activities of public institutions; in the expansion of the contribution of local and regional self-government in the development of democracy.

Since April 24, 2013 the Constitutional Council of the Republic of Kazakhstan is a member of the Association of Asian Constitutional Courts and equivalent institutions - regional open area of constitutional justice of Asian countries to promote common human values - democracy, human rights and freedoms.

Formation of legal state and strengthening the constitutional legality in the Republic are organically linked with the dynamic development of the legislation. This requires the adoption of laws regulating the main areas of the state, economic and social life.

According to Concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020, approved by decree of the Presidential on August 24, 2009 № 858, the Parliament of the Republic of Kazakhstan passed laws to facilitate the consolidation of constitutional rights and freedoms of man and citizen, the economic, social and legal systems of the state. The list of international treaties that promote phased implementation into national law the requirements of international law is ratified.

The Republic of Kazakhstan is continuing the constant modernization of law enforcement and judicial systems. Projects of new editions of the Criminal Code, Criminal Procedure, the Executive Penal Code, the Code of Administrative Offences, designed to increase the effectiveness of law enforcement and strengthening the constitutional guarantees of the rights and freedoms of man and citizen are being elaborated.

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During the period that passed since the announcement in Parliament of the Republic of Kazakhstan of the previous addresses (of June 12, 2012 № 09-3/1), the Constitutional Council considered treatment of the Prime Minister of the Republic of Kazakhstan, Chairman of the Senate of the Parliament of the Republic of Kazakhstan on an official interpretation of certain provisions of the Constitution, as well as the interpretation of certain regulatory decisions of the Constitutional Council of the Republic of Kazakhstan.

Thus, the Constitutional Council on the address of the Prime Minister of the Republic of Kazakhstan gave an official interpretation of paragraph 8 of Article 62 and paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan in order to clarify the concept of "other normative legal acts", "other legal acts", the admissibility of extension of a subject of a special law on development, presentation, discussion, enactment and publication of laws and other normative legal acts of the Republic.

In the normative resolution of 6 March 2013 № 1 "On the official interpretation of the norms of paragraph 8 of Article 62 and paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan Constitutional Council found that "other normative legal acts " shall mean any legal acts that are not legislative acts. The term "legal act" in its content wider than the term" normative legal act," and used in paragraph 1 of Article 83 of the Constitution the concept of "other legal acts" includes all other acts both of normative character, and those which are not normative.

In accordance with paragraph 8 of Article 62 of the Constitution of the Republic of Kazakhstan the order of development, submission, discussion , enactment and publication of laws and other normative legal acts should be determined by a special law and regulations of the Parliament of the Republic of Kazakhstan and its Chambers. While the Constitution does not limit the subject of legal regulation of the special law only by development, presentation, discussion, enactment and publication of legislative and other normative legal acts referred to in paragraph 8 of Article 62 of the Constitution. It may also include other issues of lawmaking and law enforcement activities of state bodies and officials, including the issues of the regulation of procedures of elaboration and adoption of legal acts that are not normative. If necessary, the legislator may do so using the powers under Constitution.

Constitutional Council in accordance with subparagraph 1) of paragraph 1 of Article 35 of the Constitutional Law of the Republic of Kazakhstan "On the Constitutional Council of the Republic of Kazakhstan" considered the petition of the Chairman of the Senate of the Parliament of the Republic of Kazakhstan on the interpretation of the normative resolution of the Constitutional Council of the Republic of Kazakhstan of October 15, 2008 № 8 "On the official interpretation of Article 54, subparagraphs 1) and 3 ) of paragraph 3 of Article 61, as well as a number of other provisions of the Constitution of the Republic of Kazakhstan on the issues of organization of governance "in connection with questions raised during the discussions in the Parliament the draft law "On amendments and additions to some legislative acts of the Republic of Kazakhstan on consolidation of the competence of state bodies on legislative and (or) sublegislative levels".

Within the interpretation of the normative decisions of the Constitutional Council, the Chairman of the Senate asked to clarify the content of the constitutional concepts described in subparagraph 3) of paragraph 3 of Article 61 of the Constitution "the basis of the organization and activities of state bodies", and establish a distinction between the functions, which are subject of regulation of the laws and sublegislative acts.

In the additional resolution of May 16, 2013 №2 "On the interpretation of the normative resolution of the Constitutional Council of the Republic of Kazakhstan of October 15, 2008 № 8 "On the official interpretation of Article 54, paragraphs 1) and 3) of paragraph 3 of Article 61, as well as a number of other provisions of the Constitution Republic of Kazakhstan on the issues of organization of governance", the Constitutional Council has established the following.

By "basic organization and activities of state bodies", laid down in subparagraph 3) of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan, the fundamental principles and norms defining the basic approaches to the content of the legal status (sphere of governance, mission, main tasks, functions and powers), to the order of formation, abolition, reorganization of state bodies and the organization of their activities is understood.

The laws set the functions of state bodies that make up the core of the organization and activities of the state body, as well as function, the implementation of which affects the most important public relations referred to in paragraph 3 of Article 61 of the Constitution. This concerns, including questions of legal personality of individuals and entities, measures of rights of restrictive character, as well as relations between state bodies with non-governmental organizations and individuals, including the establishment of law enforcement, control and supervisory functions and allowing order of accomplishing of specific activities.

At the sublegislative level the functions, which does not affect the public relations, listed in paragraph 3 of Article 61 of the Constitution are set. This can concern the mechanism of realization of the consolidated in law functions, internal organization and operation of state bodies, adoption (publishing) of technical and technological norms. At the sublegislativelevel functions of state bodies are established only within the powers of the subject issuing the relevant sublegislative act.

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With view to implementation of the legal positions of normative resolutions and recommendations of the addresses of the Constitutional Council of the Republic of Kazakhstan state authorities adopted a series of legislative acts and other decisions.

In accordance with the normative resolution of the Constitutional Council of December 7, 2011 № 5 "On the constitutionality of paragraph 1 of Article 44 of the Law of the Republic of Kazakhstan of July 26, 2007 №310 –III "On state registration of rights to immovable property" on the address of the district court number 2 of Kazybekbi district of Karagandy region", the law of the Republic of Kazakhstan of April 27, 2012 №15 –V "On introducing amendments and additions to some legislative acts of the Republic of Kazakhstan concerning exclusion of contradictions, gaps, conflicts between the norms of law of different legislative acts and norms that breed corruption offenses " made amendments into the Law of the Republic of Kazakhstan of July 26, 2007 №310 –III "On state registration of rights to immovable property" providing for comprehensive grounds for refusal of state registration of rights to immovable property and a prohibition on registration rejection of rights to immovable property, set by judicial act.

In the named resolution the Constitutional Council in order to protect the rights and legitimate interests of proprietors and other legitimate owners, mortgagees and other persons also pointed to the necessity of clarifications by the Supreme Court, in accordance with Article 81 of the Constitution of the Republic of Kazakhstan on issues of judicial practice concerning the order of registration of rights to the immovable property.

According to the information provided by the Supreme Court in the current year it is planned to generalize the judicial practice concerning registration of rights to the immovable property on the results of which the question of necessity of adoption of normative resolution of the Supreme Court on the application by courts of the Law "On state registration of rights to immovable property" is going to be solved.

Law of the Republic of Kazakhstan of June 21, 2012 № 19 -V "On introducing amendments and additions to some legislative acts of the Republic of Kazakhstan concerning counteraction to legalization (laundering) of illegally obtained incomings and terrorist financing and cash out" implemented a number of legal positions of the Constitutional Council laid down in its normative resolutions of August 20, 2009 № 5 "On official interpretation of paragraph 2 of Article 18 of the Constitution of the Republic of Kazakhstan and considering for compliance with the Constitution of the Republic of Kazakhstan Law of the Republic of Kazakhstan "On counteraction to legalization (laundering) of illegally obtained incomings and financing of terrorism "and the Law of the Republic of Kazakhstan "On amendments and additions to some legislative acts of the Republic of Kazakhstan concerning counteraction to legalization (laundering) of illegally obtained incomings, and the financing of terrorism".

With view to implementation of the normative resolutions of the Constitutional Council of 13 April 2012 № 2 "On the official interpretation of the Constitution of the Republic of Kazakhstan issues of the calculation of the constitutional terms", the Government of the Republic of Kazakhstan developed and submitted to Parliament a draft of the Constitutional Law of the Republic of Kazakhstan "On amendments and additions to some constitutional laws Republic of Kazakhstan on the issues of calculation of constitutional terms" aimed at adjustment of the calculation of the beginning and end of the periods provided for in the constitutional laws.

Laws of the Republic of Kazakhstan of April 15, 2013 №88 -V «On state services" and of April 15, 2013 №89 -V «On introducing amendments and additions to some legislative acts of the Republic of Kazakhstan on state services" implemented a number of legal positions of normative resolution of the Constitutional Council of 15 November 2008 № 8 "On the official interpretation of Article 54, paragraphs 1) and 3) of paragraph 3 of Article 61, as well as a number of other provisions of the Constitution of the Republic of Kazakhstan on the issues of governance " concerning distinction between "state functions" and "state services", the powers of state bodies in this field and improvement of the order of rendering of state services.

In order to further rule out of the existing shortcomings and contradictions in legislation, in accordance with the recommendations of a number of addresses of the Constitutional Council (of June 19, 2006 № 01-3/1, of June 16, 2011 № 09-5/1 and others) the law of the Republic of Kazakhstan of April 27, 2012 № 15 -V «On introducing amendments and additions to some legislative acts of the Republic of Kazakhstan concerning ruling out of contradictions, gaps, conflicts between the norms of law of different legislative acts and norms that contribute to corruption offenses" was adopted.

Parliament of the Republic of Kazakhstan is considering draft laws of the Republic of Kazakhstan "On state-guaranteed legal assistance" and "On amendments and additions to some legislative acts of the Republic of Kazakhstan on improvement of the system of providing legal assistance guaranteed by the state", made by the Government of the Republic in accordance with Articles 13 and 16 of the Constitution and recommendations of the Constitutional Council (address of June 12, 2012 № 09-3/1) aimed at improvement of system of rendering free qualified legal assistance to citizens. Parliament is considering a draft law "On traffic " and "On making amendments and additions to some legislative acts of the Republic of Kazakhstan on the issues of traffic", which also provides rules designed to implement the recommendations of the Constitutional Council, laid down in the addresses of June 12, 2012 № 09-3/1.

Within the framework of implementation of the recommendations of the address of the Constitutional Council of June 12, 2012 № 09-3/1 about the necessity of sense of authenticity of legal acts texts in Kazakh and Russian languages and linguistic quality assurance expertise of bills the amount of scientific linguistic expertise made in 2012, according to the Prime Minister's Office of the Republic increased in comparison with 2011 to 75%.

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Constitutional Council considers that the assessment of the constitutional legality in the Republic requires not only summarizing of the results of the development of existing law , but also revelation of the problems of legal regulation, systematic approach to identifying the basic directions for further improvement of legislation, elimination of the identified gaps and contradictions.

1. Based on the normative resolution of the Constitutional Council of Regulatory of April 13, 2012 № 2 "On the official interpretation of the Constitution of the Republic of Kazakhstan on the issues of calculation of the constitutional terms" there is a necessity of bringing into compliance of a number of laws establishing the procedure of a person's detention, as well as the calculation of the beginning and end of the period of detention with paragraph 2 of Article 16 of the Constitution of the Republic.

Appropriate amendments should be made to the Criminal Procedure Code of the Republic of Kazakhstan, the Republic of Kazakhstan Code of Administrative Offences , the laws " On migration of population", "On legal status of foreigners", "On the internal troops of the Ministry of internal affairs of the Republic of Kazakhstan", "On the state of emergency", "On martial law", "On prevention of domestic violence", "On the internal affairs bodies of the Republic of Kazakhstan"," On counteracting the terrorism " and other legislative acts.

2. In accordance with resolution of the Constitutional Council of 20 December 2000 №21/2 "on the official interpretation of paragraph 3 of Article 26 and paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan" and the address of May 25, 2010 №09-5/1 the concepts "state needs", "exceptional cases", "conditions of fair compensation" must be determined in laws. However, in civil , banking and other legislation the appropriate changes and additions are not made (except for some changes to the Land Code of the Republic of Kazakhstan of June 20, 2003 №442 -II), and the concept and the difference between of the terms "dispensation" and " compulsory expropriation" are not disclosed in laws. There are no clear criteria for the recognition of cases of compulsory expropriation of property for public needs exceptional.

The Constitutional Council considers it necessary to draw attention of state bodies to such a shortcoming of lawmaking process as unjustified frequent making of amendments and additions in acting laws and other normative legislative acts. Only in 2012 amendments were made by 25 laws in Code of the Republic of Kazakhstan on Administrative Offences of January 30, 2001 № 155 –II, - 20 laws made amendments to the Code of the Republic of Kazakhstan of December 10, 2008 № 99 -IV «On taxes and other obligatory payments to the budget " (Tax Code), - 9 laws made amendments to the Code of the Republic of Kazakhstan of September 18, 2009 № 193 -IV «On people's health and the health care system."

It would be appropriate to identify ways of regulating the development of draft laws and other normative legal acts and making amendments to them, strengthening the role of the competent authorities for coordination of legislative and other lawmaking activity.

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In the matter of strengthening of the constitutional legality regime the important role is given to the President of the Republic of Kazakhstan, the Parliament, the Government, the Constitutional Council, the judiciary, public prosecutors by the Basic Law. At the same time, ensuring the constitutional legality in the country is the responsibility of all the state bodies and officials, as well as organizations and citizens of the Republic of Kazakhstan.