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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of July 1, 2005 No. 4

About official interpretation of Item 3 of article 26 of the Constitution of the Republic of Kazakhstan

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., Nurmagambetov A. M., Stamkulova U. M. with participation:

representatives of the subject of the address - deputies of the Majilis of Parliament of the Republic of Kazakhstan of Taspikhov A. S. and Omarova E. O.,

representatives of the Government of the Republic of Kazakhstan - the first vice-Minister of Justice of the Republic of Kazakhstan Mukashev R. Zh. and vice-Minister of Transport and Communications of the Republic of Kazakhstan Koshanov E. Zh.,

vice-Minister of Economy and Budget Planning of the Republic of Kazakhstan Sultanov B. T.,

vice-Minister of Labour and Social Protection of the population of the Republic of Kazakhstan Abdykalikova G. N.,

vice-chairman of the Agency of the Republic of Kazakhstan on regulation of natural monopolies Orumbayev A. S,

chief of staff of the Attorney-General of the Republic of Kazakhstan Temirbulatov S. G.

considered in open session two addresses of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of article 26 of the Constitution, united in one constitutional production.

Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional Council Stamkulov U. M., speeches of representatives of the subject of the address and participants of meeting, and also having studied expert opinions - the head of the department of the Russian linguistics of historical and philological faculty of Eurasian national university of L. N. Gumilev, the Doctor of Philology, professor Kairzhanov A. K. and directors of Research institution of development and examination of legal acts under the Kazakh humanitarian and legal university, Candidate of Law Sciences, associate professor Umurkulov M. K., the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan on May 13, 2005 and on June 7, 2005 addresses of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of article 26 of the Constitution arrived.

In the address which arrived on May 13, 2005 deputies of Parliament ask to give official interpretation of Item 3 of article 26 of the Constitution from line item of admissibility of establishment by legal acts of the republic, including article 13 of the Law of the Republic of Kazakhstan of September 21, 1994 to No. 156-XIII "About transport in the Republic of Kazakhstan", the privileges limiting, in their opinion, private property of individuals.

In other address deputies of Parliament ask to explain Item 3 of article 26 of the Constitution taking into account regulations about withdrawal (redemption) of lands for the state needs established in a number of current laws. Practice of withdrawal (redemption) of lands from owners became reason for such address. Deputies of Parliament believe that in law-enforcement practice not the constitutional concept "state needs" is absolutely precisely and reasonably treated. Besides, deputies consider, in current laws the constitutional concept "state needs" is changed for the concept "state needs".

On the substance of the questions raised in addresses, the Constitutional Council proceeds from the following.

1. The constitutional Council does not connect official interpretation of Item 3 of article 26 of the Constitution with assessment of constitutionality of regulations of the current laws specified in addresses of deputies of Parliament. Earlier Constitutional Council this official interpretation of Item 3 of article 26 of the Constitution (resolutions of the Constitutional Council of June 16, 2000 No. 6/2 and of December 20, 2000 No. 21/2) on specific questions of deprivation or property acquisition of the owner.

2. Item 3 of article 26 of the Constitution provides inadmissibility of deprivation коголибо property, differently as by a court decision, and also possibility of property compulsory acquisition for the state needs in exceptional cases provided by the law on condition of its equivalent compensation. As for other ownership limitations, these questions are not regulated by this constitutional regulation.

The bases and limits of ownership limitation and their nature follow from regulation of Item 1 of article 39 of the Constitution according to which "human rights and freedoms can be limited only to the laws and only in that measure in what it is necessary for the purpose of protection of the constitutional system, protection of public order, human rights and freedoms, health and morality of the population". Therefore, the property right is not absolute and can be limited to the laws both in the field of the civil-law relations, and in the public sphere. This legal line item follows also from the constitutional regulation that limits of implementation by owners of the rights, guarantees of their protection are determined by the law (Item 2 of article 6 of the Constitution), and from the resolution of the Constitutional Council of November 3, 1999 No. 19/2 "About official interpretation of Item 2 of Article 6 and subitems 1), 2) of Item 3 of article 61 of the Constitution of the Republic of Kazakhstan".

For the democratic, secular, constitutional and social state the supreme values are the person, his life, the rights and freedoms (article 1 of the Constitution). Recognition by their supreme value means that the state has no more important task, than care of the person, its material welfare. The state shall create all conditions for worthy existence of the person depending on it. Such legal line item is reflected in resolutions of the Constitutional Council of December 21, 2001 No. 18/2, of December 31, 2003 No. 13, of April 20, 2004 No. 3, of April 29, 2005 No. 3.

The constitutional Council considers that content of the considered constitutional regulations gives the grounds to the state to determine borders of implementation by the owner of its competences. Establishment in the legislative way of the privileges directed to the solution of social problems of the state value and limiting at the same time the property right is exclusive prerogative of the legislator.

In case of establishment of privileges for certain category of passengers of property acquisition as such does not occur, and legislative settlement of the mode of use of property for the solution of the state, in particular, social problems takes place. The question of compensations of the costs incured with respect thereto shall be considered through prism of obligation of participation of everyone in life of society and state (for example, tax payment, regulation of rates of subjects of natural monopolies, etc.). Stated it is based on the requirement of Item 2 of article 6 of the Constitution according to which the property obliges, use of it shall serve the public benefit at the same time.

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