NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of August 31, 2023 No. 27-NP

About consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 11) Item 2 of article 38 of the Law of the Republic of Kazakhstan of February 16, 2012 "About military service and the status of the military personnel" and the subitem 9) Item 2 of article 6 of the Law of the Republic of Kazakhstan of January 6, 2011 "About law-enforcement service"

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., Zhatkanbayeva A. E., Kydyrbayeva A. K., Mussina K. S., Nurmukhanova B. M., Sarsembayev E. Zh. and Udartseva of Page F., with participation:

subject of the address Bayzhanov R. A.,

representatives:

The Ministries of Defence of the Republic of Kazakhstan - the deputy minister Akhmediyev D. M.,

The Ministries of Internal Affairs of the Republic of Kazakhstan - the acting as Glavnokomanduyushchego National guard of Aktanov K. M.,

The Ministries of Justice of the Republic of Kazakhstan - the director of the department of the legislation Mankeshov Sh. Zh.,

The Prosecutor General's Office of the Republic of Kazakhstan - the senior assistant of the Attorney-General on special orders Kemalov M. T.,

Committee of homeland security of the Republic of Kazakhstan - the acting as the head of legal department Bayalin E. K.,

considered Bayzhanov R. A. address in open session. about check on compliance of the Constitution of the Republic of Kazakhstan of the subitem 11) Item 2 of article 38 of the Law of the Republic of Kazakhstan of February 16, 2012 "About military service and the status of the military personnel" (further - the Law on military service) and the subitem 9) Item 2 of article 6 of the Law of the Republic of Kazakhstan of January 6, 2011 "About law-enforcement service" (further - the Law on law-enforcement service).

Having heard the message of the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Nurmukhanov B. M., having studied materials of the constitutional production and having analyzed the legislation of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan

established:

In the Constitutional Court of the Republic of Kazakhstan the address about consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 11) of Item 2 of article 38 of the Law on military service and the subitem 9) of Item 2 of article 6 of the Law on law-enforcement service arrived.

Follows from the address that the applicant in 2013 was dismissed from military service for absence on service without reasonable excuse within three and more hours in a row. After row of years he appealed to the relevant state bodies to explain possibility of holding the posts on military and in law-enforcement service. However it was given answers about impossibility of acceptance to service with reference to the specified laws.

The subject of the address believes that these regulations for life deprive of its right to access to military and law-enforcement service, are unfair and excessively strict. He also pays attention that at the time of its dismissal the subitem 8) of Item 2 of article 38 of the Law on military service determined that on military service under the contract person dismissed from the public or military service for negative motives is not accepted if from the date of dismissal did not pass three years.

When checking constitutionality of the challenged provisions of the specified legal acts in relation to subject of the address the Constitutional Court proceeds from the following.

1. According to article 36 of the Constitution protection of the Republic of Kazakhstan is holy duty and obligation of each her citizen. Citizens of the Republic bear military service according to the procedure and the types established by the law.

Military service - special type of the public service of the military personnel of Armed Forces, other troops and military forming aimed at direct providing the military safety connected with the armed protection of sovereignty, territorial integrity and immunity of Frontier of the Republic of Kazakhstan (the subitem 16) article 1 of the Law on military service).

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. These legal line items belong also to military service as special type of public service, revenues to which is also connected with realization of the rights of citizens to access to public service, freedom of work, the free choice of kind of activity and profession (Item 1 of Article 24 and item 4 of Article 33 of the Fundamental Law).

The armed protection of firm constitutional values requires ensuring high level of fighting capacity of military divisions and discipline for the purpose of effective solution of objectives in any conditions, including with risk for life. Accomplishment by the military personnel constitutionally of significant functions predetermines their special legal status. It assumes possibility of presentation to them raised, in comparison with other categories of government employees, requirements and establishments of the restrictions including caused by non-execution or improper execution of the general, job and special responsibilities assigned to them. Citizens, voluntarily arriving on military service, agree with special rules of its passing, measures of responsibility for their non-compliance and assume the prohibitions and restrictions following from legal status of the serviceman.

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