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NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of March 27, 2023 No. 6

About consideration on compliance of the Constitution of the Republic of Kazakhstan of provisions of parts three and heel, subitems 1) and 3) parts six of Article 141 of the Penitentiary code of the Republic of Kazakhstan" of July 5, 2014"

NAME OF THE REPUBLIC OF KAZAKHSTAN

Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., Eskendirov A. K. judges., Zhakipbayeva K. T., Zhatkanbayeva A. E., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F. with participation of the subject of the address – the citizen Naumtsev S. V. and representatives:

The senate of Parliament of the Republic of Kazakhstan – the deputy of the Senate of Parliament Tolamisov A. G.,

The Ministries of Internal Affairs of the Republic of Kazakhstan – the First Deputy Minister Kozhayev M. Sh.,

The Prosecutor General's Office of the Republic of Kazakhstan – the adviser to the Attorney-General Adamov T. B.

considered in open session the address of the citizen Naumtsev S. V. about consideration on compliance of the Constitution of the Republic of Kazakhstan of provisions of parts three and heel, subitems 1) and 3) of part six of Article 141 of the Penitentiary code of the Republic of Kazakhstan of July 5, 2014 (further – WICK).

Having heard speakers judges of the Constitutional Court of the Republic of Kazakhstan of Zhakipbayev K. T. and Sarsembayeva E. Zh., having studied materials of the constitutional production, having analyzed the legislation of the Republic of Kazakhstan and the international experience, the Constitutional Court of the Republic of Kazakhstan

established:

In the Constitutional Court of the Republic of Kazakhstan the address of the citizen Naumtsev S. V. about consideration on compliance to article 14 of the Constitution of the Republic of Kazakhstan of provisions of parts three and heel, subitems 1) and 3) of Article part six 141 WICK arrived.

According to parts three and the fifth Article 141 WICK the convict leaving lifelong imprisonment on arrival in organization of extreme safety is located in usual conditions of serving sentence from which transfer into the facilitated conditions of serving is possible in the absence of collection only in ten years. The same term is established also for repeated transfer in the regular or facilitated serving sentence conditions. In turn, for the convict to certain term of deprivation of freedom serving sentence in the same organization, change of conditions of serving sentence is possible after one year (article 139 UIK).

The subitem 1) of Article part six 141 WICK provides the right of the convict leaving lifelong imprisonment in usual conditions to spend monthly for the acquisition of food and necessities of means which are available on control accounts of cash of temporary placement of money in the amount up to two monthly settlement indicators. In case of serving sentence in strict conditions he also has the right to spend up to two monthly settlement indicators (the subitem 1) of Article part eight 141 WICK).

The subitem 3) of Article part six 141 WICK provides the right of the convict leaving lifelong imprisonment in usual conditions to have four short-term appointments within year whereas the convict to certain term of deprivation of freedom with serving sentence in organization of extreme safety in usual conditions has rights to have three short-term and one long appointment within year (the subitem 3) of article 140 part two WICK).

According to the subject of the address, the specified provisions WICK contradict the constitutional regulations that "all are equal before the law and court" and that "nobody can be exposed to any discrimination … on other circumstances" (article 14 of the Constitution).

By consideration of constitutionality of provisions of parts three and heel, subitems 1) and 3) of Article part six 141 WICK in relation to subject of the address the Constitutional Court proceeds from the following.

1. In the Republic of Kazakhstan human rights and freedoms according to the Constitution are recognized and guaranteed. Human rights and freedoms belong to everyone from the birth, are recognized absolute and inaliennable, determine content and application of the laws and other regulatory legal acts (Items 1 and 2 of article 12 of the Constitution). These constitutional provisions should be understood in the sense that the human rights and freedoms proclaimed the Constitution are fundamental in case of development and adoption of the laws and other regulatory legal acts establishing conditions and procedure of these rights and freedoms (the normative resolution of the Constitutional Council of October 28, 1996 No. 6/2).

The equality of all before the law and court ordered by article 14 of the Constitution and also the constitutional regulations on the fact that nobody can be exposed to any discrimination based on origin of social, official and property status, floor, race, nationality, language, the relation to religion, beliefs, the residence or on any other circumstances mean equal rights and obligations of the personality, equal protection of these rights by the state and equal responsibility of the personality to the law. In the laws the specific conditions and circumstances allowing to exercise rights and freedoms of man and citizen are determined (normative resolutions of the Constitutional Council of March 10, 1999 No. 2/2, of March 29, 1999 No. 7/2 and others).

At the same time any legislative restrictions of human rights and freedoms shall be adequate to legally reasonable purposes and meet the requirements of justice, proportionality and proportionality (normative resolutions of the Constitutional Council of February 27, 2008 No. 2, of August 20, 2009 No. 5, of December 14, 2016 No. 1).

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