Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
of September 25, 2023 No. 29-NP
About consideration on compliance of the Constitution of the Republic of Kazakhstan of Article 482 of the Code of penal procedure of the Republic of Kazakhstan of July 4, 2014
Name of the Republic of Kazakhstan
Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., judges Nurmukhanov B. M., Zhakipbayev K. T., Kydyrbayeva A. K., Mussina K. S., Ongarbayeva E. A., Podoprigora R. A. and Udartseva of Page F., with participation of representatives:
The Prosecutor General's Office of the Republic of Kazakhstan - the adviser to the Attorney-General Adamov T. B.,
The Ministries of Justice of the Republic of Kazakhstan - Zhakselekovy B. Sh. vice-minister,
The Ministries of Internal Affairs of the Republic of Kazakhstan - the vice-chairman of Committee of criminal executive system Ayubayev M. A.,
The Commissioner for Human Rights - the head of department of the analysis of the legislation and the national preventive mechanism of the National center for human rights Seytzhanov S. Zh.,
The office of the Majilis of Parliament of the Republic of Kazakhstan - the manager of the sector of Department of the legislation Rakisheva A. M.,
The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,
Republican Bar - Nurkeeva A. A.,
considered in open session Shchebentovsky V. D. address about check on compliance of the Constitution of the Republic of Kazakhstan of Article 482 of the Code of penal procedure of the Republic of Kazakhstan of July 4, 2014 (further - the Code of Criminal Procedure).
Having heard the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Mussina K. S. and participants of meeting, having studied materials of the constitutional production, 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 (further - the Constitutional Court) the address about consideration on compliance of the Constitution of the Republic of Kazakhstan (further - the Constitution) article 482 Code of Criminal Procedure arrived.
Follows from the address that Tem_rgala A. T. lawyer. within rendering legal assistance to the applicant during serving of punishment by it in AP-162/3 organization of Committee of criminal executive system of the Ministry of Internal Affairs of the Republic of Kazakhstan under sentence of Esilsky district court No. 2 of the city of Astana of February 2, 2018 brings the claim to failure to act of RGU "Ministry of Internal Affairs of the Republic of Kazakhstan" according to the procedure of article 476 Code of Criminal Procedure in court No. 2 of the city of Pavlodar.
The claim of the lawyer is left by the court order No. 2 of the city of Pavlodar of December 13, 2022 without consideration in view of submission of the claim by inadequate person as only the convict has rights to bringing of the claim according to the procedure of execution of sentence.
The court order No. 2 of the city of Pavlodar is left by the resolution of judicial board on criminal cases of the Pavlodar regional court of January 4, 2023 without change.
According to the author of the address, the provision of the disputed regulation deprives of the citizen of the right to one of types of the qualified legal aid provided by the Law of the Republic of Kazakhstan of July 5, 2018 "About lawyer activities and legal aid" (further - the Law on lawyer activities, the Law), imposes on it the obligation which is not provided by the law personally to sign and file a lawsuit claims, depriving of the lawyer of such right affirmed in the Law creates additional and absolute obstacles to the condemned citizens for access to the guaranteed Constitution of qualified legal aid.
The constitutional court pays attention that article 482 Code of Criminal Procedure consists of four parts. The regulation disputed by the applicant determining the subject given the right of bringing of the claim is stated in the first offer of part one of the specified Article. The subsequent parts regulate procedure for consideration by court of claims of convicts to actions (failure to act) and decisions of organization or the body performing punishment, the rights affecting them and legitimate interests, and also decisions of the prosecutor on the questions connected with execution of sentence or refusal of the prosecutor in satisfaction of their similar claims.
Considering that the applicant does not put question of check according to Item 2 of article 50 of the Constitutional law of the Republic of Kazakhstan of November 5, 2022 "About the Constitutional Court of the Republic of Kazakhstan" checked constitutionality of article 482 Code of Criminal Procedure only in the part one enshrining the provision specified in the address for compliance of the Constitution of the provisions of article 482 Code of Criminal Procedure establishing procedural procedure for judicial review of claims of convicts, the Constitutional Court.
By consideration of question of constitutionality of the disputed norm of the Criminal Procedure Code the Constitutional Court proceeds from the following.
1. According to Item 2 of article 13 of the Constitution everyone has the right to judicial protection of the rights and freedoms.
According to part one of article 482 Code of Criminal Procedure the right to appeal in court of action (failure to act) and decisions (in edition in Russian) organization or body, the performing punishment, the rights affecting them and legitimate interests, and also decisions of the prosecutor on the questions connected with execution of sentence, or the refusal of the prosecutor in satisfaction of their similar claims belongs to the convict.
Human rights and freedoms, according to Item 2 of article 12 of the Constitution, belong to everyone from the birth, are recognized absolute and inaliennable.
The constitutional Council noted that "recognition of the specified human rights and freedoms absolute means their distribution on each person who is in the territory of the Republic of Kazakhstan irrespective of its belonging to nationality of the Republic (the resolution of October 28, 1996 No. 6/2).
Database include more 50000 documents. You can find needed documents using search system. For effective work you can mix any on documents parameters: country, documents type, date range, teams or tags.
More about search system
If you cannot find the required document, or you do not know where to begin, go to Help section.
In this section, we’ve tried to describe in detail the features and capabilities of the system, as well as the most effective techniques for working with the database.
You also may open the section Frequently asked questions. This section provides answers to questions set by users.