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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

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 infringe at 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.

According to article 26 of the Constitution, citizens of the Republic of Kazakhstan can have any legally acquired property in private property (Item 1). In the specified article of the Constitution (the Item 2) is also emphasized that property, including the inheritance right, is guaranteed by the law. According to Item 1 of Article 6 of the Fundamental law the Republic of Kazakhstan are recognized and are similarly protected the state-owned and private property. According to Item 2 of article 6 of the Constitution, "the property obliges, use of it shall serve the public benefit at the same time. Subjects and objects of property, amount and limits of implementation by owners of the rights, guarantees of their protection are determined by the law". It should be noted that the specified constitutional regulations contain in the Section I "General provisions" of the Fundamental law which have the determining value as establish the basic principles and the beginnings of legal regulation of the relations of property (the resolution of the Constitutional Council of June 7, 2000, N4/2).

The given regulations create the constitutional premises for realization of other social and economic rights affirmed in the Constitution of the republic including the rights to provision of pensions.

2. The legal nature of the legal relationship which are created between the pension fund and the citizen differs from the relations of the commodity-money and based on equality other participants of the property relations regulated by the civil legislation. The relations between the investor and the accumulation pension fund develop on the basis of the Constitution, the laws corresponding to it and other regulatory legal acts. Pension legal relationship are based not on equality of participants, and have mainly public nature.

In cases of untimely deduction (not charge) and (or) not transfer of compulsory pension contributions the state, on behalf of the tax authorities having the right to apply the recovery by enforcement measures established by the legislation.

Pension accruals which are considered on individual retirement accounts of the investor are its property, but, owing to requirements of Item 2 of Article 6 and Item 1 of article 28 of the Constitution, the investor according to the law cannot temporarily dispose and use pension accruals before the certain dispositive fact (age etc.) granting the right to pension. Full authority of property for the pension accruals which are available on accumulation accounts arises at investors only when these means according to the pension legislation pass into the order of the citizen.

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