Normative resolution of the Constitutional Council of the Republic of Kazakhstan №2 dated April 17, 2017 "on revision of some normative resolutions of the Constitutional Council of the Republic of Kazakhstan»

Undo in part:

Normative resolution №4 of the Сonstitutional Council of 23 April 2003 on the official interpretation of Article 2, paragraph 2, and Article 6, paragraph 3, of the Constitution of the Republic of Kazakhstan" having eliminated:

in the fifth paragraph of paragraph 1 the reasoning of the words, which establishes that "established by the Constitution unitarity and territorial integrity of the state, the government of the Republic can not be changed»

 

Official interpretation of the norms of Constitution of the Republic of Kazakhstan

 

On the official interpretation of paragraph 2 Article 2 and paragraph 3 Article 6 of the Constitution of the Republic of Kazakhstan. Resolution of the Constitutional Council of the Republic of Kazakhstan №4 23 April 2003

 

The Constitutional Council of the Republic of Kazakhstan composed of: the Chairman Khitrin Yu.A., members of the Council Abishev Kh.A., Baltabayev K.Zh., Bychkova S.F., Esenzhanov À., Kotov À.Ê. and Omarkhanov Ê.À. with the representative of the subject of application - deputy of Parliament Mazhilis of the Republic of Kazakhstan Sarpekov R.K., Minister of Justice of the Republic Zhumabekov O.I., Deputy General Prosecutor Daulbayev A.K., Vice-Minister of Foreign Affairs of the Republic Zverkov V.P., the Chairman of the Land Resources Management Agency of the Republic of Kazakhstan Ospanov B.S., have considered the application of the Chairman of the Parliament Mazhilis about the official construction of the Constitution of the Republic, Paragraph 2 Article 2 and Paragraph 3 Article 6 at the open session of the Constitutional Council.

Having examined available materials, including findings of experts - Corresponding Member of the National Science Academy, Doctor of Jurisprudence, professor Suleimenov M.K. and listened to the reporter - member of the Constitutional Council Bychkova S.F., statements of the participants of the session, the Constitutional Council of the Republic of Kazakhstan has established: The Constitutional Council of the Republic of Kazakhstan has accepted for constitutional consideration the application of the Chairman of the Parliament Mazhilis of the Republic of Kazakhstan asking for the official interpretation of the Constitution of the Republic of Kazakhstan, Article 2, Paragraph 2 and Article 6, Paragraph 3.

The subject of application asks for the official interpretation of the Constitution, Article 2, Paragraph 2, according to which 'the state ensures the integrity, inviolability and inalienability of its territory", and Article 6, Paragraph 3, which runs: "The land and underground resources, waters, flora and fauna, other natural resources shall be owned by the state. The land may also be privately owned on terms, conditions and within the limits established by legislation", envisaging at the same time the answer to the question about whether the said norms of the Constitution imply that the solution of the issue of assigning of lots designated exceptionally for allocation of diplomatic representatives accredited in the Republic of Kazakhstan is conceded at the level of a legislative act.

When construing Paragraph 2 of Article 2 and Paragraph 3 of Article 6 of the Constitution of the Republic of Kazakhstan with reference to the subject matter of the application the Constitutional Council bases itself on the following principles.

1. The notion of territory of Kazakhstan in the Constitution of the Republic of Kazakhstan is closely connected with the notion of its sovereignty. In Paragraph 2 of Article 2 it is established that "the sovereignty of the Republic extends to its entire territory".

The territory of the state is the spatial border within which the state exists and functions as a sovereign organization of power. It is the supreme power on this territory, indivisible and independent. The land and underground resources, waters, flora and fauna, other natural resources comprised by the space of the Republic are pubic and legal property of Kazakhstan.

The state's ensuring of the integrity, inviolability and inalienability of its territory implies a package of economic, political, military, legal and organizational measures aimed at:

- consolidation of the state immunity in economical interaction;

- legal impossibility of a unilateral concession on a part of its territory to other state by the Republic of Kazakhstan;

- non-admission of seizure, adjunction or division of the territory of the Republic of Kazakhstan;

- prohibition of establishing and functioning of public associations aiming at breach of integrity of the Republic of Kazakhstan;

- state bodies' not having the right to raise the question of separating form the state and changing their legal statuses on in a unilateral order;

- imposition to state structures of responsibilities of taking necessary and sufficient steps for defense and protection of the sovereignty and territorial integrity of the Republic.

The territorial integrity is the governing condition of the national safety of Kazakhstan.

Change of the unitarity and territorial integrity of the Republic cannot be the subject for introducing changes and additions into the Constitution. In Resolution of the Constitutional Council No. 13/2 "On the Official Construction of Subparagraph 1) of Article 53 and Paragraph 1 of Article 91 of the Constitution of the Republic of Kazakhstan" in part of regulations relating to the "introduction of changes and additions into the Constitution by Parliament of the Republic" dated 4 December, 1998, it is stated that the competence of Parliament connected with introduction of changes and additions into the Constitution is limited to Paragraph 2 of Article 91 of the Constitution which fixes that "The unitary status and territorial integrity of the Republic, the forms of government may not be changed".

It follows from the aforesaid regulations the Republic of Kazakhstan may provide lands to foreign countries for allocation of diplomatic representatives accredited on its territory only in a legal form that shall not cause exclusion of lands from the public and legal property of Kazakhstan. Such legal form is providing of lands by Kazakhstan to foreign countries diplomatic representatives of which are accredited on the territory of the Republic on terms of lease. The territory of the Republic of Kazakhstan as common spatial border shall remain invariable.

When solving the question under consideration provisions of Article                  8 of the Constitution stating that "The Republic of Kazakhstan shall respect principles and norms of international law, pursue the policy of cooperation and good-neighborly relations between states, their equality and non-interference in each other's domestic affairs, peaceful settlement of international disputes and renounce the first use of the military force" must be taken into account.

The territorial integrity and inviolability of the state is protected by the fundamental tenets of international law as well as by the Constitution of the Republic of Kazakhstan. Provision of lands to be used for allocation of diplomatic representatives require additional legal guarantees of the integrity, inviolability and inalienability of the state territory of the Republic as:

- end use of the indicated lands (use of them exceptionally for the allocation of the diplomatic representatives accredited in the Republic of Kazakhstan);

- provision of lands on the basis of reciprocity and equality principles between states;

- adoption of a legislative act about the immunity of foreign states in the Republic of Kazakhstan which shall guarantee observance of interests of the Republic in disputes on account of lands.

2. According to Paragraph 3 of Article 6 of the Constitution "The land and underground resources, waters, flora and fauna, other natural resources shall be owned by the state. The land may also be privately owned on terms, conditions and within the limits established by legislation".

It follows out of this proposition that when regulating land relations the Constitution fixes the supremacy of the state which determines legal regimes of ownership and turnover of the land down to establishing of the regime of the exclusive state's ownership of lands. Grounds, conditions and limits on which land may be owned and range of its subjects and objects shall be determined by the legislator. In Paragraph 2 of Article 6 of the Constitution it is fixed that "subjects and objects of ownership, the scope and limits of the rights of proprietors, and guarantees of their protection shall be determined by law".

The Republic providing lands to foreign countries for the allocation of the diplomatic representatives accredited on its territory must ensure integrity, inviolability and inalienability of its territory. The conditions of such provision shall be concretizes depending on the peculiarities of relationships of the Republic of Kazakhstan with a foreign country. International agreements ratified by the Republic of Kazakhstan are the legal form for realization of this requirement.

Therefore, being guided by Subparagraph 4) of Paragraph 1 of Article 72 pf the Constitution of the Republic of Kazakhstan and Articles 32, 33, 37 of the Decree of the President of the Republic having the force of a Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan" with reference to the question of the application the Constitutional Council of the Republic of Kazakhstan

 

enacts:

 

1. Paragraph 2 of Article 2 of the Constitution of the Republic of Kazakhstan stating that the state ensures integrity, inviolability and inalienability of its territory be understood as prohibition of dismemberment of its territory, of use of natural resources without consent of the government and of wanton change of the status of Kazakhstan regions, inviolability of the frontiers and prohibition of territorial concession to the prejudice of national interests and sovereign equality of the state.

Lands shall be provided to foreign countries for the allocation of the diplomatic representatives accredited in the Republic of Kazakhstan to be used on terms of lease. Jurisdiction of foreign countries on the territory of allocation of its diplomatic representatives do not violate the principles of sovereignty, integrity, inviolability and inalienability of the territory recognizes by international law and fixed in Paragraph 2 of Article 2 of the Constitution of the Republic of Kazakhstan.

Lands given to foreign countries to be used for the allocation of the diplomatic representatives shall remain the property of the Kazakhstan state.

2. Paragraph 3 of Article 6 of the Constitution of the Republic of Kazakhstan means that the right of regulation of land relations in the country belongs to the state which establishes legal regimes of ownership and turnover of land. Grounds, conditions and limits on which land may be owned and the range of its subjects and objects shall be determined by the legislator.

Provision of lands to foreign counties to be used for the allocation of the diplomatic representatives accredited in the Republic of Kazakhstan shall be carried out according to international agreements ratified by the Republic of Kazakhstan.

3. According to Paragraph 3 of Article 74 of the Republic of Kazakhstan the Resolution is effective from the date of adoption and cannot be appealed, is binding on the whole territory of the Republic and final taking into account the case stipulated by Paragraph 4 of Article 73 of the Constitution of the Republic of Kazakhstan.