RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of January 24, 2007 No. 1

About check of constitutionality of part one of Article 109 of the Code of penal procedure of the Republic of Kazakhstan according to the appeal of the West Kazakhstan regional court

The constitutional Council of the Republic of Kazakhstan as a part of the chairman Rogov I. I., members of council of Abishev of X.A., Baltabayeva K. Zh., Belorukova N. V., Bychkova of Page F., Nurmagambetova A. M., Stamkulova U. M. with participation:

the representative of the Government of the Republic of Kazakhstan - the vice-Minister of Justice of the Republic of Kazakhstan Nugmanov of Page P,

representative of the Prosecutor General's Office of the Republic Kazakhstanzamestitelya of the Attorney-General of the Republic of Kazakhstan Daulbayev A. K.,

the representative of the Supreme Court of the Republic of Kazakhstan - the judge of the Supreme Court of the Republic of Kazakhstan Abdikanov N. A.,

the representative of Committee of homeland security of the Republic of Kazakhstan - the vice-chairman of Committee of homeland security of the Republic of Kazakhstan Nurimanov M. A.,

representative of the Agency of the Republic of Kazakhstan on fight against economic and corruption crime (financial police) of the vice-chairman of the Agency of the Republic of Kazakhstan on fight against economic and corruption crime (financial police) Kozhamzharov K. P.,

representative of the Ministry of Internal Affairs of the Republic Kazakhstannachalnika of legal department of the Ministry of Internal Affairs of the Republic of Kazakhstan Ashitov B. Z.

considered idea of the West Kazakhstan regional court of recognition of unconstitutional part one of Article 109 of the Code of penal procedure of the Republic of Kazakhstan in open session.

Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional Council Bychkova of Page F., performances of participants of meeting, and also experts - the doctor of jurisprudence, professor, the rector of University of D. A. Kunayeva Kopabayeva O. K. and doctors of jurisprudence, professor, the vice rector for scientific work of the Kazakh national pedagogical university of name of Abay of Toleubekovy B. H. Constitutional Council of the Republic of Kazakhstan

established:

In the Constitutional Council of the Republic of Kazakhstan idea of the West Kazakhstan regional court of recognition of unconstitutional part one of Article 109 of the Code of penal procedure of the Republic of Kazakhstan of December 13, 1997 No. 206-I (further - the Code of Criminal Procedure) regarding restriction of the right of persons for appeal judicially of resolutions of bodies of inquiry, investigation, the prosecutor on initiation of legal proceedings on December 27, 2006 arrived.

Follows from representation that in production of the West Kazakhstan regional court there is private claim of the acting as the head of the department of fight against economic and corruption crime (financial police) on the West Kazakhstan region Tochilin A. A. on the resolution of the Ural city court of November 2, 2006. This decision leaves without satisfaction Tochilin A. A. claim. about cancellation of the resolution of the senior special investigator of investigative department of department of Committee of homeland security of the Republic of Kazakhstan on the West Kazakhstan region of October 9, 2006 about initiation of legal proceedings upon plunder of public funds by officials of department on fight against economic and corruption crime (financial police) across the West Kazakhstan region. The basis for its acceptance was that the resolution of body of preliminary inquiry on initiation of legal proceedings, according to the Ural city court, is not subject to judicial appeal according to the procedure of article 109 Code of Criminal Procedure.

The West Kazakhstan regional court believes that "from the moment of pronouncement by criminal prosecution authority of the resolution on initiation of legal proceedings person concerning whom this decree is issued at stage of initiation of legal proceedings is deprived of opportunity by all means and methods to protect the right, freedom, legitimate interests guaranteed by the Constitution of the Republic of Kazakhstan".

With respect thereto the West Kazakhstan regional court considers that "the list of the appealed actions and decisions of criminal prosecution authorities established in part one of article 109 Code of Criminal Procedure restrains 77 Constitutions of the right to judicial protection of Tochilin A. A. enshrined in Articles 1, of 12, of 13, of 14,. and other officials of financial police across the West Kazakhstan region".

On the specified bases the West Kazakhstan regional court according to article 78 of the Constitution of the Republic of Kazakhstan suspended proceeedings and addressed to the Constitutional Council with idea of recognition of part one of article 109 Code of Criminal Procedure unconstitutional.

When checking constitutionality of part one of Article 109 of the Code of penal procedure of the Republic of Kazakhstan the Constitutional Council of the Republic of Kazakhstan proceeds from the following.

1. According to Item 1 of article 76 of the Constitution of the Republic of Kazakhstan judicial authority in the Republic of Kazakhstan "has the appointment protection of the rights, freedoms and legitimate interests of citizens and the organizations, ensuring execution of the Constitution, the laws, other regulatory legal acts, international treaties of the republic". It is implemented by means of civil, criminal and other forms of legal proceedings (Item 2 of article 75 of the Constitution) established by the law.

According to Item 2 of Article 13 of the Fundamental law "everyone has the right to judicial protection of the rights and freedoms" that means "the right of any man and citizen to take a legal action behind protection and recovery of the violated rights and freedoms" (the resolution of the Constitutional Council of the Republic of Kazakhstan of March 29, 1999 No. 7/2). The right to judicial protection is "the constitutional guarantee of rights and freedoms of man and citizen and therefore, according to Item 3 of article 39 of the Constitution, cannot be limited in any cases" (the resolution of the Constitutional Council of February 15, 2002 No. 1).

Article 8 of the Universal Declaration of Human Rights accepted by the United Nations General Assembly on December 10, 1948 proclaims the right of everyone to effective recovery in the rights competent domestic courts in cases of violation of its basic rights provided to it by the Constitution or the law.

According to the International Covenant on Civil and Political Rights accepted by the resolution 2200A (XXI) of the United Nations General Assembly of December 16, 1966, ratified by the Law of the Republic of Kazakhstan of November 28, 2005 No. 91-III "each state participating in this Pact shall: a) provide to any person whose rights and freedoms recognized in this Pact are broken, effective remedy of legal protection even if this violation was made by persons acting in official quality; b) provide that the right to legal protection for any person requiring such protection was established competent judicial, administrative with either legislatures or any other competent authority provided by system of law of the state and to develop possibilities of judicial protection" (Item 3 of Article

2).

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