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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of April 29, 2005 No. 3

About check of constitutionality of article 13 of the Law of the Republic of Kazakhstan "About social protection of the citizens who were injured owing to ecological disaster in Priaralye"

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

the representative of the subject of the address - the judge of the Supreme Court of the Republic of Kazakhstan Baishev Zh. N.,

the representative of the Government - the vice-Minister of Labour and Social Protection of the population of the Republic of Kazakhstan of Duysenovy T. B.,

vice-Minister of Justice of the Republic of Kazakhstan Bekbosunov S. M.,

vice-Minister of Finance of the Republic of Kazakhstan Amrin A. K.,

vice-Minister of Economy and Budget Planning of the Republic of Kazakhstan Isaev B. A.,

first vice-minister of environmental protection of the Republic of Kazakhstan Kesikbayev S. K.,

representative of the Prosecutor General's Office of the Republic Kazakhstanrukovoditelya of the office of the Attorney-General of the Republic of Kazakhstan Temirbulatov S. G.

considered in open session idea of the Supreme Court of the republic of recognition of unconstitutional article 13 of the Law of the Republic of Kazakhstan of June 30, 1992 No. 1468a-XII "About social protection of the citizens who were injured owing to ecological disaster in Priaralye".

Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional Council Baltabayev K. Zh., speeches of the representative of the subject of the address and participants of meeting, and also having studied expert opinions - the dean of law department of Al-Farabi Kazakh National University, the doctor of jurisprudence, professor Baydeldinov D. L., the managing department of labor right and civil process of Al-Farabi Kazakh National University, Candidate of Law Sciences, associate professor Mezhibovskaya I. V. managing department of pediatrics of the Kazakh national medical university of S. D. Asfendiyarov, the doctor of medical sciences, professor Mazhitova Z. H., Candidates of Biology, associate professors of biology and ecology of Eurasian national university of L. N. Gumilev of Inkarova Zh. I. and Akbayeva L. H., the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan idea of the Supreme Court of the republic of recognition of unconstitutional article 13 of the Law of the Republic of Kazakhstan of June 30, 1992 No. 1468a-XII "About social protection of the citizens who were injured owing to ecological disaster in Priaralye" arrived.

Follows from representation that in production of the Supreme Court there is claim of the citizen Sergaziyev S. N. to the Government of the republic about recognition of the resolution of the Cabinet of Ministers of the Republic of Kazakhstan of December 17, 1992 No. 1057 "About measures for implementation of the Law of the Republic of Kazakhstan of June 30, 1992 "About social protection of the citizens who were injured owing to ecological disaster in Priaralye" contradicting the law.

In the course of consideration of the claim the Supreme Court saw that article 13 of the Law "About Social Protection of the Citizens Who Were Injured owing to Ecological Disaster in Priaralye" (further - the Law) which is subject to application on case infringes the Constitutions affirmed in Article 14 at rights and freedoms of man and citizen as connects provision of social privileges and guarantees with the accommodation fact in zone of ecological catastrophe. Such procedure for provision of social privileges and guarantees is, according to the Supreme Court, discrimination on the basis of the residence of the citizens who left this zone, but having the status of victims.

When checking question of constitutionality of article 13 of the Law the Constitutional Council of the Republic of Kazakhstan proceeds from the following.

1. The Republic of Kazakhstan, approving itself by the democratic, secular, constitutional and social state which supreme values are the person, his life, the rights and freedoms (Item 1 of article 1 of the Constitution), established prohibition on discrimination someone for these or those motives, having brought it to the level of the constitutional guarantees. In particular, Item 2 of Article 14 of the Fundamental law proclaims: "nobody can be exposed to any discrimination based on origin, social, official and property status, floor, race, nationality, language, the relation to religion, beliefs, the residence or on any other circumstances".

The prohibition of discrimination on motive of the residence is inseparably linked with regulation of Item 1 of the specified article of the Constitution fixing equality of all before the law and court. It means that irrespective of the residence on the same bases established by legal acts, subjects have the identical rights and shall carry out identical obligations and also have equal protection of these rights from the state and bear equal legal accountability and to court (the resolution of the Constitutional Council of July 9, 2001, No. 11/2).

2. According to the resolution of the Constitutional Council of March 12, 1999 construction of specific kind of the rights and freedoms to level constitutional and the announcement in the Constitution of its security assumes assignment to provide to No. 3/2, on the state of obligation realization of these rights and freedoms. Therefore, 29 and 31 Fundamental laws following from Articles 1, of 12, of 28, recognition and providing the right to indemnification to health are obligation of the state. Therefore the accommodation facts in zone of ecological catastrophe and damnifications to health of the citizens who appeared in such zone cause emergence of constitutional legal relations between the state and citizens within whom provision of social compensations and privileges for damage suffered or for risk of its causing is guaranteed to the last. At the same time the legislator has the right to determine specific types and conditions of their obtaining, and also to make differentiation of the rights of citizens by socially justified criteria.

The considered Law determines conditions of provision of social compensations and privileges to citizens, differentiating them by the following criteria: accommodation zone; time and term of accommodation; age; loss of health. At the same time conditions of the residence and loss of health are independent criteria and can be considered both separately, and in total. Such approach in connection with different nature of impact per capita of harmful factors of the environment and its effects is represented reasonable.

3. Victims owing to ecological disaster the Law recognizes the citizens both living, and earlier living in this territory (Article 6-8). At the same time compensations and privileges, the stipulated in Article 13 Laws, are social support of all population living in zone of ecological catastrophe irrespective of availability at the citizen of the status of the victim. In this case the legislator proceeds from negative impact of the circle of stay per capita. However from this does not follow that the persons recognized according to articles 6-8 of the Law victims owing to ecological disaster and who left this territory are exposed to discrimination.

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