NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of June 13, 2023 No. 19-NP

About consideration on compliance to item 4 of article 26 of the Constitution of the Republic of Kazakhstan of article 13 of the Law of the Republic of Kazakhstan of November 18, 2015 "About anti-corruption", article 154 of the Code of the Republic of Kazakhstan about administrative offenses 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., Kydyrbayeva A. K., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation:

subject of the address Belgibayev A. A. and his representative - the lawyer Kabdosheva A. A.,

representatives:

Anti-corruption agencies of the Republic of Kazakhstan - the first deputy chairman Malakhov D. M.,

The agencies of the Republic of Kazakhstan for public service - the vice-chairman Muksimov S. S.,

The Ministries of Justice of the Republic of Kazakhstan - the vice-minister Mukanova A. K.,

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

considered in open session Belgibayev Askarbek Adylbekovich's address about check on compliance of the Constitution of the Republic of Kazakhstan of article 13 of the Law of the Republic of Kazakhstan of November 18, 2015 "About anti-corruption" (further - the Law), article 154 of the Code of the Republic of Kazakhstan about administrative offenses of July 5, 2014 (further - the Administrative Code) and Article 895 of the Civil code of the Republic of Kazakhstan (Special part) of July 1, 1999 (further - the Civil code (Special part).

Having heard the message of the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Ongarbayev E. A., having studied materials of the constitutional production, having analyzed the international experience, the legislation of the Republic of Kazakhstan and certain foreign countries, the Constitutional Court of the Republic of Kazakhstan

established:

In the Constitutional Court of the Republic of Kazakhstan Belgibayev A. A. address arrived. (further - SP) about consideration on compliance to item 4 of article 26 of the Constitution of the Republic of Kazakhstan of article 13 of the Law, the article 154 Administrative Code and Article 895 of the Civil code (Special part).

From the address and the provided materials follows that SP performed business activity which was connected with provision of places for the parking of motor transport. The parcel of land for the parking was provided to SP in temporary use for a period of 6 years.

On June 22, 2018 the subject of the address was appointed the director of utility public institution. According to the subitem 4) of article 1 of the Law person performing managerial functions in the state organization is person equated to persons authorized on accomplishment of the state functions.

According to article 13 of the Law persons equated to persons authorized on accomplishment of the state functions are forbidden to be engaged in business activity.

According to Article 895 of the Civil code (Special part) the property of the government employee used for business activity is subject to transfer to trust management in cases and according to the procedure, provided by legal acts.

The subject of the address claims what directly for SP is not registered and there is no property used for business activity which according to Article 895 of the Civil code (Special part) would be subject to transfer to trust management. After the appointment it could not draw up the trust management agreement as was not owner of the parcel of land. In this regard notarially certified power of attorney it transferred the daughter the right to management and making of all actions connected with business activity of SP.

The resolution of specialized court on administrative offenses of the city of Ust-Kamenogorsk of October 7, 2022 the subject of the address was brought to the administrative responsibility under the article 154 Administrative Code for occupation by business activity by person for whom the legislation of the Republic of Kazakhstan establishes prohibition on implementation of such activities. Its petition for appeal is left by the resolution of judicial board on criminal cases of the East Kazakhstan regional court of November 9, 2022 without satisfaction.

Based on stated, the subject of the address believes that she will lock, the stipulated in Clause 13 Laws, violates its right to liberty of business activity, and also free use of the property for any legal business activity (item 4 of article 26 of the Constitution).

When checking constitutionality of the considered provisions of the law, the Civil code (Special part) and the Administrative Code in relation to subject of the address the Constitutional Court proceeds from the following.

1. According to item 4 of article 33 of the Constitution citizens of the Republic have the equal right to access to public service. Requirements imposed to the candidate for position of the government employee are caused only by nature of job responsibilities and established by the law.

The constitutional court in the normative resolution of March 6, 2023 No. 4 noted that it taking into account the mission of public service, special legal status of the government employees costing specifics before them tasks the state has the right to determine for citizens of the rule of revenues to public service and its passings, including requirements to candidates and the corresponding restrictions which can be connected with need of ensuring efficiency of activities of the state apparatus, trust of the people as the single source of the government and non-admission of abuse of the conferred powers.

Part of the designated rules and restrictions is directed to anti-corruption, posing serious threat to the constitutional values protected by the law. The legislation of the Republic of Kazakhstan proceeds from need of complex anti-corruption, extending the tools and measures provided in it to persons working in public authorities, in the state and other organizations taking into account the public functions performed by them, nature and amounts of the assets belonging to them and other circumstances.

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