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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of January 31, 2005 No. 1

About check of constitutionality of Item 3 of article 15 of the Law of the Republic of Kazakhstan "About notariate" according to the appeal of court of the city of Astana

The constitutional Council of the Republic of Kazakhstan as a part of the chairman Rogov I. I. and members of council of Abishev of X.A., Baltabayeva K. Zh., Bychkova of Page F., Esenzhanova A., Kotov A. K., Omarkhanova K. A. with participation:

the representative of the subject of the address - the chairman of board on civil cases of court of the city of Astana Askarov B. B.,

deputy attorney general of the republic Daulbayev A. K.,

vice-Minister of Justice of the republic Baymaganbetov S. N.,

judge of board on civil cases of court of the city of Astana Zhumabayeva Zh. S.,

chairman of Republican notarial chamber Zhanabilova A. B.,

member of Notarial chamber of the city of Almaty Kalabayeva K.,

lawyer of the Almaty Bar Rebenchuk E. D.

considered in open session idea of court of the city of Astana of check of constitutionality of Item 3 of article 15 of the Law of the Republic of Kazakhstan "About notariate".

Having heard the speaker - the member of the Constitutional Council Abishev of X.A, performance of participants of meeting and having studied the available materials, the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan idea of court of the city of Astana of check regarding compliance of the Constitution of the Republic of Kazakhstan of Item 3 of article 15 of the Law of the Republic of Kazakhstan of July 14, 1997 to No. 155 "About notariate" arrived.

Follows from representation that in court of the city of Astana the claim of private notaries of Notarial chamber of the city of Almaty for cancellation of the order of the Minister of Justice of the republic of May 25, 2004 No. 148, which approves Rules of passing of certification by private notaries (further - rules) and the petition for the appeal to the Constitutional Council with idea of recognition unconstitutional Item 3 of article 15 of the Law of the Republic of Kazakhstan "About notariate" is under consideration (далеезакон).

Doubts of court in constitutionality of Item 3 of article 15 of the law consist in the following:

1) notarial chambers are the non-profit organizations created in the form of public associations. Introduction by the law of certification of private notaries contradicts Item 2 of Article 5 and article 23 of the Constitution of the republic as intervention of the state in cases of public associations is allowed. The state, having granted the life license to privately practicing notaries, shall not subject them to certification repeatedly;

2) the institute of certification is entered in May, 2003, and extends in practice to all notaries irrespective of occupation time privately practicing activities. Item 3 of article 15 of the law worsens their situation, assigns to them new obligations and therefore owing to requirements of the subitem 5) of Item 3 of article 77 of the Constitution it shall not have retroactive force;

3) certification of the notaries who are engaged in private practice is carried out by the Ministry of Justice once in five years for the purpose of determination of level of professional qualities whereas notaries public of such certification for the law are not subject. Thereby, Item 3 of article 15 of the law contradicts the requirements of Items 1 and 2 of article 14 of the Constitution establishing the principle of equality of all before the law and prohibition on discrimination of the rights of citizens on occupation characteristics.

Checking constitutionality of Item 3 of article 15 of the Law of the Republic of Kazakhstan "About notariate", the Constitutional Council of the Republic of Kazakhstan proceeds from the following.

1. The notariate in the Republic of Kazakhstan represents legislatively fixed system of protection of the rights and legitimate interests of physical persons and legal entities by making of the notarial actions directed to the certificate of the rights and facts, and also the solution of other tasks provided by the law. Notarial activities affect constitutional rights and freedoms as by means of its implementation their realization is provided. Accomplishment by notariate of the tasks has purpose to provide including the right of everyone to receipt of qualified legal aid (Item 3 of article 13 of the Constitution of the republic). Owing to the fact that activities of notariate have public character the legal obligation is assigned to the state to provide rights and freedoms of man and citizen, to establish legal mechanisms of their protection and protection.

Therefore, the state has the right to determine for persons wishing to perform notarial activities, compulsory provisions and restrictions which can be connected with need of establishment by the law of the state control of activities of notariate, including by certification. Limits of legislative restriction shall answer constitutionally particular purposes and tasks of protection of human rights and freedoms (Item 1 of Article 39 of the Fundamental Law).

It should be noted that according to Item 3 of article 15 of the law of certification privately practicing notaries, but not their consolidation which the notarial chamber as directly notaries are engaged in rendering notarial services is are subject.

2. The Law "About Notariate" does not contain the provisions providing retroactive effect of its regulations regulating questions of certification. As for practice of its application as a result of which requirements of the subitem 5) of Item 3 of article 77 of the Constitution are violated, check of its constitutionality is not included into competence of the Constitutional Council. Protection of constitutional rights and freedoms in this case is performed judicially (Item 2 of Article 13, articles 75 and 76 of the Constitution).

3. Item 1 of article 14 of the Constitution establishes equality of all before the law and court. It assumes equal rights and obligations, unity of requirements and legal responsibility for all subjects of the corresponding legal relationship performing homogeneous types of activity.

Item 3 of article 15 of the Law "About Notariate", establishing obligation of certification of private notaries, does not provide that for notaries public. Distribution on notaries public of provisions of Rules of carrying out certification of the administrative government employees approved by the Presidential decree of the Republic of Kazakhstan of January 21, 2000 No. 327, is caused by their status of the government employee and does not reflect specifics of activities of the notary.

The notarial activities performed by the state and private notaries are based on different patterns of ownership. According to Item 1 of article 6 of the Constitution the Republic of Kazakhstan are recognized and are similarly protected the state-owned and private property. The sense of the constitutional requirement about equal protection of the state-owned and private property is also that the state and private owner in the specific legal relationship permitted and allowed by the legislation will submit to the same legal regime both in public, and in private spheres (the resolution of the Constitutional Council of November 3, 1999 No. 19/2). However the Law "About Notariate" creates unequal legal conditions to activities of the state and private subjects of rendering notarial services.

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