of February 22, 2023 No. 3
About consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 1) Item 1 and Item 2 of article 610 of the Code of the Republic of Kazakhstan of December 25, 2017 "About taxes and other obligatory payments in the budget" (Tax code)
Constitutional court of the Republic of Kazakhstan as a part of the chairman – the vice-chairman B. M. Nurmukhanov, judges A. K. Eskendirov, K. T. Zhakipbayev, A. E. Zhatkanbayeva, A. K. Kydyrbayeva, E.A.Ongarbayev, R. A. Podoprigora, E. Zh. Sarsembayev and S.F. Udartsev with participation of representatives:
subject of the address Dosmagambetov E. N. – lawyer Zholbolov N. K.,
The senate of Parliament of the Republic of Kazakhstan – the deputy of the Senate of Parliament of the Republic of Kazakhstan Orynbekov B. S.,
The governments of the Republic of Kazakhstan – the vice-Minister of Finance of the Republic of Kazakhstan Birzhanov E. E.,
The ministries of national economy of the Republic of Kazakhstan – the Vice-Minister Amrin A. K.,
The Ministries of Justice of the Republic of Kazakhstan – Zhakselekovy B. Sh. vice-Minister,
The Prosecutor General's Office of the Republic of Kazakhstan – the adviser to the Attorney-General Adamov T. B.,
The Commissioner for Human Rights in the Republic of Kazakhstan – the deputy manager of the National center for human rights Umarov A. S.,
Research institution of private law of the Caspian university – the senior research associate Osipov E. B.,
Chambers of tax consultants of the Republic of Kazakhstan – the Chief executive Horunzhego A. G.
considered in open session the address of the citizen Dosmagambetov Yerzhan Nurzhanovich about check on compliance of the Constitution of the Republic of Kazakhstan of the subitem 1) of Item 1 and Item 2 of article 610 of the Code of the Republic of Kazakhstan of December 25, 2017 "About taxes and other obligatory payments in the budget" (Tax code).
Having heard the message of the speaker – the judge of the Constitutional Court of the Republic of Kazakhstan A. K. Kydyrbayeva, having studied materials of the constitutional production, having analyzed the international experience and the legislation of certain foreign countries, the Constitutional Court of the Republic of Kazakhstan
In the Constitutional Court of the Republic of Kazakhstan Dosmagambetov E. N. address arrived. about consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 1) Item 1 and Item 2 of article 610 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget" (Tax code) (further – the Tax code).
The decision of Atyrau city court of February 28, 2018 left without change by the resolution of Atyrau regional court of May 15, 2018 from Dosmagambetov E. N. in the income of the state the amount of damage of 129 639 381 tenge, the state fee in the amount of 3 889 182 tenges are collected.
The subject of the address specifies that collection from it the state fee Trial Court in the amount of 3 889 182 tenges assigns to it obligation to pay in case of submission of the petition in cassation procedure the state fee in the amount of 50% of this amount that constitutes 1 944 590 tenges. Difficult financial position does not allow it to pay such amounts. Considers that lack of means deprives of it the right to judicial protection, needy citizens shall have opportunity to exercise the constitutional rights in courts of the Republic.
According to Dosmagambetov E. N., establishment of interest rates of the state fee for giving in court of actions for declaration of property nature and applications for revision of court resolutions in cassation procedure, in total with lack of the regulations determining reasonable upper limit of the state fee or providing release from its payment, delay, payment by installments of its payment actually limit access to justice.
Dosmagambetov E. N. asks to recognize the challenged provisions of the Tax code not corresponding to the Constitution of the Republic of Kazakhstan.
By consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 1) of Item 1 and Item 2 of article 610 of the Tax Code the Constitutional Court proceeds from the following.
1. According to article 1 of the Constitution the Republic of Kazakhstan approves itself by the democratic, secular, constitutional and social state which supreme values are the person, his life, the rights and freedoms.
It means that the state not only proclaims rights and freedoms of man and citizen, but also guarantees their providing, creating all necessary conditions.
Basic guarantee of protection of the rights and legitimate interests of citizens is the right to judicial protection affirmed in Item 2 of article 13 of the Constitution. This right is absolute and inaliennable and is not subject to restriction in any cases (Item 3 of Article 39 of the Fundamental Law).
Owing to article 14 of the Constitution all are equal before the law and court. Nobody can be exposed to any discrimination based on origin, social, official and property status, floor, race, nationality, language, the relation to religion, beliefs, the residence or on any other circumstances.
These provisions are corresponded to provisions of the conventional international acts.
Article 7 of the Universal Declaration of Human Rights, the adopted Resolution 217 A (III) of the General Assembly of the United Nations of December 10, 1948, says that "all people are equal before the law and have the right, without any distinction, to equal protection of the law. All people have the right to equal protection against any discrimination violating this Declaration and from any instigation to such discrimination".
The International Covenant on Civil and Political Rights accepted by the Resolution 2200A (XXI) of the General Assembly of the United Nations of December 16, 1966 and ratified by the Law of the Republic of Kazakhstan of November 28, 2005 also contains the regulations directed to establishment of guarantees of the right of each person by the states for judicial protection, to fair and public trial of its case by the competent, independent and just trial created based on the law and equality of everyone before court. Besides, in it it is fixed: "All people are equal before the law and have the right without any discrimination to equal protection of the law. In this respect any discrimination shall be prohibited by the law, and the law shall guarantee to all persons equal and effective protection against discrimination on any sign, somehow races, skin colors, floor, language, religion, political or other convictions, national or social origin, property status, the birth or other circumstance" (Item 3 of Article 2, Item 1 of Article 14 and Article 26).
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