RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF TAJIKISTAN

of March 26, 1996

On case "About compliance of the Constitution of the Republic of Tajikistan of the Decree of Presidium of the Supreme Council of the Republic of Tajikistan of November 14, 1993 No. 134 "About suspension of operation of articles 6, 28, 48, 49, 53, 53(1), 85, 90, 92, 97, 221(1) and 221 (2) the Code of penal procedure of the Republic of Tajikistan", approved by the Law of the Republic of Tajikistan of December 28, 1993, No. 944 "About approval of Decrees of Presidium of the Supreme Council of the Republic of Tajikistan on modification and amendments in some legal acts", regarding appeal in court of arrest or prolongation of term of detention and judicial check of justification of arrest or prolongation of term of detention"

Constitutional court of the Republic of Tajikistan as a part of the Chairman of the Constitutional court Sharipov H. H., vice-chairman of the Constitutional court Aliyev Z. M., secretary of the Constitutional court Nazarov M. N., judges of the Constitutional court of Abdullaev A. A., Mukbilshoyev B., Safarova N. D., Emomov N. E.,

court clerk of the Constitutional court Mirzoshoyeva S.,

Parties: - the lawyer of legal advice bureau of the Central district of the city of Dushanbe S. Komilova - the party according to which petition the constitutional legal proceedings are initiated,

the adviser of Majlisi Oly Committee of the Republic of Tajikistan for the legislation and human rights U. Akhunov - the agent of the party concerning which act the constitutional legal proceedings are initiated,

considered in the open session case "About compliance of the Constitution of the Republic of Tajikistan of the Decree of Presidium of the Supreme Council of the Republic of Tajikistan of November 15, 1993, No. 134 "About suspension of operation of articles 6, of 28, of 48, of 49, of 53, 53(1), 85, of 90, of 92, of 97, 221(1) and 221 (2) the Code of penal procedure of the Republic of Tajikistan", approved by the Law of the Republic of Tajikistan of December 28, 1993, No. 944 "About approval of Decrees of Presidium of the Supreme Council of the Republic of Tajikistan on modification and amendments in some legal acts", regarding appeal in court of arrest or prolongation of term of detention and judicial check of justification of arrest or prolongation of term of detention.

The petitioning party considers that the Decree of Presidium of the Supreme Council of the Republic of Tajikistan of November 15, 1993, No. 134 "About suspension of operation of articles 6, 28, 48, 49, 53, 53(1), 85, 90, 92, 97, 221(1) and 221 (2) the Code of penal procedure of the Republic of Tajikistan", regarding appeal in court of arrest or prolongation of term of detention and judicial check of justification of arrest or prolongation of detention contradicts articles 10 and 19 of the Constitution of the Republic of Tajikistan and the Universal Declaration of Human Rights.

She notes that this Decree limits rights of man and citizen regarding appeal in court of arrest or prolongation of term of detention and judicial check of justification of arrest or prolongation of term of detention and requires to determine compliance of the above-named Decree of the Constitution of the Republic of Tajikistan.

The representative of Majlisi Oli of the Republic of Tajikistan U. Akhunov completely recognized the requirements containing in the petition.

Constitutional court of the Republic of Tajikistan, having heard explanations of the parties, having researched other case papers,

ESTABLISHED:

The presidium of the Supreme Council of the Republic of Tajikistan the Decree of June 2, 1993, No. 85 "About modification and amendments" made changes and additions in Articles to some legal acts of the Republic of Tajikistan 6, of 28, of 48, of 49, of 53, 53(1), 85, of 90, of 92, of 97, 221(1) and 221 (2) the Code of penal procedure of the Republic of Tajikistan according to which to person who is held in custody to his defender or the legal representative the right to appeal justification of arrest or prolongation of term of detention in court is granted. This Decree is approved by the Law adopted by the Supreme Council of the Republic of Tajikistan of June 26, 1993, No. 847.

A little later Presidium of the Supreme Council of the Republic of Tajikistan the Decree of November 15, 1993, No. 134 "About suspension of operation of articles 6, 28, 48, 49, 53, 53(1), 85, 90, 92, 97, 221(1) and 221 (2) the Code of penal procedure of the Republic of Tajikistan" suspended these Articles according to which person who is held in custody his defender or the legal representative lost the appeal right in court about check of justification of arrest or prolongation of term of detention. This Decree is approved by the Law adopted by the Supreme Council of the Republic of Tajikistan of December 28, 1993, No. 944.

Article 10 of the Constitution of the Republic of Tajikistan determines that the Constitution of the Republic of Tajikistan has the highest legal force, its regulations have direct action. The laws and other legal acts contradicting the Constitution have no legal force. This article of the Constitution obliges bodies which in the activities apply precepts of law, to be guided directly by Constitution regulations. Despite it, the vice-chairman of October district court of the city of Dushanbe Aliyev K., being guided by the Decree of Presidium of the Supreme Council of the Republic of Tajikistan of November 15, 1993, gave the written answer, having refused grievance settlement of the lawyer Komilov S. about illegal arrest of his client - Saidmurodov N. M. and did not regard it in essence.

This Decree contradicts article 19 of the Constitution of the Republic of Tajikistan as according to this regulation of the Constitution, judicial protection and the right to require consideration of its case by competent and just trial is guaranteed to each citizen. This Decree limits constitutional rights and freedoms of citizens and contradicts article 9 of the International Covenant on Civil and Political Rights of December 16, 1966 according to which person who is held in custody has the right to appeal justification of the arrest in court. According to article 10 of the Constitution of the Republic of Tajikistan the international legal acts recognized by Tajikistan are component of system of law of the republic. In case of discrepancy of the laws of the republic to acknowledged international legal acts, regulations of international legal acts are applied.

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