of April 20, 2004 No. 3
About compliance of the Constitution of the Republic of Kazakhstan of the subitem 5) Item 1 of article 23 of the Law of the Republic of Kazakhstan "About provision of pensions in the Republic of Kazakhstan" and the subitem 1) Item 4 "Rules of implementation of retirement benefits from the pension accruals created at the expense of compulsory pension contributions, voluntary professional pension contributions from the accumulation pension funds", approved by the order of the Government of the Republic of Kazakhstan of July 4, 2003, N661
The constitutional Council of the Republic of Kazakhstan as a part of the chairman Hitrin Yu. A., members of council of Abishev H. A., Baltabayeva K. Zh., Bychkova of Page F., Esenzhanova A., Kotov A. K. and Omarkhanova K. A. with participation:
the representative of the subject of the address - the judge of the Supreme Court of the Republic Ponomarenko Yu. A.,
deputy attorney general of the Republic Daulbayev A. K.,
vice-Minister of Labour and Social Protection of the population of the Republic Ashitov B. Z.,
vice-Minister of Justice of the Republic Asanov Zh. K.
Having studied the available materials of the constitutional production, including the expert opinion of Osipov E. B., the research associate of scientific research institute of private law of KazGYuU, Candidate of Law Sciences, having heard the message of the speaker of the member of the Constitutional Council Baltabayev K. Zh., speeches of the representative of the subject of the address and participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:
Reason for the appeal to the Constitutional Council was the civil case considered by the Supreme Court as Trial Court according to the action for declaration of the citizen Kister I. A. about violation of its constitutional rights the existing pension legislation.
In the statement Kister I. A. specifies that he is citizen of Kazakhstan and wishes to come out to the permanent residence in Germany, however Open-end Accumulation Fund Senim Ltd refused to pay it its pension accruals.
During consideration of this case the Supreme Court came to conclusion that regulations of the existing pension legislation violate the rights of citizens of the Republic of Kazakhstan affirmed in Item 2 of Article 26 and Item 3 of article 39 of the Constitution of the Republic of Kazakhstan and addressed to the Constitutional Council with idea of recognition unconstitutional the subitem 5) of Item 1 of article 23 of the Law "About Provision of Pensions in the Republic of Kazakhstan" and the subitem 1) of Item 4 of Rules.
When checking constitutionality of the regulations of the pension legislation specified in the address the Constitutional Council of the Republic of Kazakhstan proceeds from the following.
1. According to Item 1 of article 1 of the Constitution the Republic of Kazakhstan approves itself by the democratic, secular, constitutional and social state which supreme values are the person, his life, the rights and freedoms. The specified Item assumes that the Republic of Kazakhstan will develop as the state which undertakes the obligation to mitigate social inequality by creation of conditions for worthy life to the citizens and free development of the personality, adequate to opportunities of the state (the resolution of the Constitutional Council of the republic of December 21, 2001, N18/2).
One of fundamental human rights and the citizen which is recognized and guaranteed by the Constitution of Kazakhstan is the right to property.
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