RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 23, 1994

on case "About check of constitutionality of part five of Article 211 of the Labor code of the Kazakh SSR"

Constitutional court of the Republic of Kazakhstan as a part of the Chairman M. T. Baymakhanov, the vice-chairman I. I. Rogov, A. M. Nurmagambetov's secretary, judges L. I. Basharimova, U. K. Ikhsanov, S. A. Kasimov, G. V. Kim, V. A. Malinovsky with participation:

Yerokhin Anatoly Spiridonovich and Potanina Lyudmila Ivanovna of the party in which claim the constitutional legal proceedings are initiated;

Ilyasova Avaya of Izgevich - the chairman of subcommittee on judicial reform of Committee on legal reform, legality and law and order of the Supreme Council of the Republic of Kazakhstan, the representative of the Supreme Council of the Republic of Kazakhstan - the party which adopted the law about which constitutionality legal proceedings are initiated

being guided by the Constitution of the Republic of Kazakhstan, the Laws "About the Constitutional Court of the Republic of Kazakhstan" and "About the Constitutional Legal Proceedings in the Republic of Kazakhstan",

considered in proceeding in open court case "About check of constitutionality of part five of Article 211 of the Labor code of the Kazakh SSR".

The petition from citizens of Yerokhin A. S. was of consideration of the case the cause. and Potanina L. I. of September 28, 1994 about recognition not corresponding to the Constitution of the specified precept of law which determines that the complaints made after one year from the moment of the introduction in legal force of the judgment or the decision of body, higher according to the procedure of subordination, on refusal in recovery at work, are not subject to consideration.

Having heard explanations of claimants, the representative of the Supreme Council of the Republic of Kazakhstan, the expert opinion, opinion of specialists, the representative of the Supreme Court of the republic, having researched other case papers, the Constitutional Court

ESTABLISHED:

Citizens Yerokhin A. S. and Potanina L. I. ask to check constitutionality of part five of article 211 Labour Code of the Kazakh SSR which, in their opinion, infringes at constitutional right for judicial protection, limiting implementation to its year while article 32 of the Constitution of the Republic of Kazakhstan directly prohibits to limit citizens in the rights, differently as according to the Constitution. Claimants are discharged from office in April, 1991 on Item 1-1 of article 33 Labour Code of the Kazakh SSR. By decisions of district national courts to them it is refused recovery at work, and writs of appeal are left without satisfaction. Further their statements were subject of numerous consideration not only bodies of court and prosecutor's office, but also other state bodies.

Applicants specify that restriction of term of appeal of judgments on employment disputes on recovery at work was reason for rejection the Supreme Court and the Prosecutor General's Office of the Republic of Kazakhstan of claims as given after two years from the moment of the introduction to legal force of the judgment. For the same reason the presidium of the Almaty city court left without consideration protest of the prosecutor of the city of Almaty in which the question of cancellation of judgments and the direction of case on new legal proceedings was put, and the protest of the Chairman of the Supreme Court of the Republic of Kazakhstan of November 15, 1994 on December 1, 1994 is left by presidium of city court without satisfaction with the reference and to part the fifth article 211 Labour Code of the Kazakh SSR.

Resolving this case, the Constitutional Court recognizes that one of competences of citizens in case of realization by them of the right to judicial protection is the possibility of the address with the statement (claim) to competent persons for bringing by them in subsequent protest according to the procedure of supervision on the judgment. And follows from content of part five of article 211 Labour Code of the Kazakh SSR that in this case it is about any claims including served by citizens to the corresponding officials of court and prosecutor's office having rights to bringing of protest. The existing Code of civil procedure of the Kazakh SSR does not limit to any term giving of protest according to the procedure of supervision. In it only the procedure for bringing and consideration of protest is regulated that allows to eliminate miscarriages of justice irrespective of prescription of the passed decision.

According to Yerokhin A. S. and Potanina L. I. the procedural term established by part five of article 211 Labour Code of the Kazakh SSR is broken for the objective reasons. As the conclusion of Committee of the constitutional supervision of the USSR of April 4, 1991 "About the provisions of the legislation limiting equal opportunities of citizens in the field of work and occupations" the regulation of Article 17 of Bases of the legislation of USSR and federal republics about work (the relevant articles Labour Codes of federal republics) establishing as the general basis for dismissal of the worker at the initiative of administration achievement of retirement age by it in the presence of the right to full pension on old age it was recognized not consistent with the Constitution of the USSR. This discrepancy was recommended to be eliminated in case of review of the bases for the termination of the employment contract established by the legislation at the initiative of the employer. The Supreme Council of the Republic of Kazakhstan adopts on June 26, 1992 the Law "About Modification and Amendments in the Labor Code of the Kazakh SSR" by which Item 1-1 of article 33 Labour Code is declared invalid since July 1, 1992. However by this time according to part five of article 211 Labour Code of the Kazakh SSR Yerokhin A. S. and Potanina L. I. lost the right to initiate review of judgments according to the procedure of supervision.

The constitutional court considers that restriction of submission due date in itself of the claim does not deprive of citizens of constitutional right for consideration of their case by court as they, as a rule, have opportunity to exercise this right during the established procedural term. At the same time, establishment by part five of article 211 Labour Code of the Kazakh SSR of the year which is not subject to recovery infringes at the right to judicial protection for the citizens who passed this term on reasonable excuse. In article 36 of the Constitution it is proclaimed that the Republic of Kazakhstan guarantees judicial protection of all rights and freedoms enshrined in the Constitution and the laws. At the same time nobody can be deprived of the right to consideration of its case with observance of all requirements of the law and justice by competent, independent and just trial.

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