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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of April 9, 2004 No. 5

About verification of the Constitutional law of the Republic of Kazakhstan "About modification and amendments in the Constitutional law of the Republic of Kazakhstan "About elections in the Republic of Kazakhstan" on compliance of the Constitution of the Republic of Kazakhstan

(as amended on 27-04-2011)

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., Omarkhanova K. A. with participation:

the representative of the President of the Republic of Kazakhstan - the head of department of State legal department of Presidential Administration Pakirdinov M. A.,

deputies of the Senate and Majilis of Parliament of the Republic of Kazakhstan of Zhumabayev E. Zh. and Abdiyeva Zh. N.,

secretary of Central Election Commission of the republic Foos V. K.,

Commissioner for Human Rights of the Republic of Kazakhstan Baykadamov B. K.,

judge of the Supreme Court of the republic Poltorabatko L. G.,

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

first vice-Minister of Justice of the republic Merkel I. D.,

representative of permanent Meeting on development of offers on further democratization and development of civil society Svoik P. V.

considered in open session the address of the President of the Republic of Kazakhstan about verification of the Constitutional law "About modification and amendments in the Constitutional law of the Republic of Kazakhstan "About elections in the Republic of Kazakhstan" on compliance of the Constitution of the Republic of Kazakhstan.

Having studied materials of the constitutional production and the expert opinion - the director of the Kazakhstan international bureau of human rights and respecting the rule of law Zhovtis E. A. and the president of public fund of the political and legal researches "Interligal in Kazakhstan" Zlotnikov S. M., having heard the speaker - the member of the Constitutional Council Kotov A. K., speeches of the representative of the subject of the address and participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:

The constitutional law of the Republic of Kazakhstan "About modification and amendments in the Constitutional law of the Republic of Kazakhstan "About elections in the Republic of Kazakhstan" is accepted by Parliament of the republic on March 15, 2004 and provided for the signature to the President of the Republic of Kazakhstan on March 24, 2004.

See the draft of the Constitutional law submitted for consideration of the Majilis of Parliament of RK according to the order of the Government RK of November 26, 2003 No. 1177

According to the subitem 2) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan, the subitem 1) of Item 2 of Article 17 of the Presidential decree of the Republic of Kazakhstan, the valid Constitutional law, "About the Constitutional Council of the Republic of Kazakhstan" the President of the Republic of Kazakhstan introduced the appeal to the Constitutional Council regarding consideration of compliance of the Constitution of the Republic of Kazakhstan of the above-named Constitutional law.

Checking the Constitutional law "About modification and amendments in the Constitutional law of the Republic of Kazakhstan "About elections in the Republic of Kazakhstan" for Constitution compliance, Council analyzed its constitutionality in general and in particular:

the subitem 1) article 1 about statement of item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan" setting restriction of the right of the citizen to be elected on the basis of the registration of criminal record which is not extinguished or not removed at the right time;

subitem 4) article 1 about change of the principles of forming territorial, district and precinct election commissions in the new edition of article 10 of the Constitutional law;

the subitem 39) articles 1 about amendment of the Constitutional law Chapter 9-1 regarding determination and purpose of "electronic electoral system" (Article 50-1) and possibilities of presence in the room for vote of the specialist in servicing of electronic electoral system (Item 2 of Article 50-3);

accounting by the legislator of the legal line items of the Constitutional Council following from the Constitution of the Republic of Kazakhstan which are formulated by it in normative resolutions concerning the voting right;

procedure for acceptance by Parliament of the Republic of Kazakhstan for the Constitutional law "About modification and amendments in the Constitutional law of the Republic of Kazakhstan "About elections in the Republic of Kazakhstan".

1. Article 33 of the Constitution in Items 2 and 3 establishes the initial beginnings of the voting right of the Republic of Kazakhstan.

The right to choose and be elected to state bodies and local government bodies, and also to participate in republican referendum provides Item 2 of article 33 of the Constitution only to citizens of the Republic of Kazakhstan.

Item 3 of Article 33 of the Fundamental Law specifies the one which of citizens of the republic and for what reasons it is excluded from structure of the elective body, i.e. has neither active, nor passive selective legal personality and does not participate in elections. "Have no right to choose and be elected, to participate in republican referendum citizens, - it is told in Item 3 of article 33 of the Constitution, recognized as court incapacitated, and also containing in places of detention according to the court verdict".

In this constitutional regulation the active voting right (the right to participate in vote on elections) and passive voting right (the right to be elected) are taken in legal condition of unity who cannot initially be had and therefore the citizens recognized by court incapacitated, and also those who contain in places of detention according to the court verdict have no under the Constitution. Separately in Item 3 of Article 33 the Constitution does not speak about inadmissibility of restriction of subjective voting rights of citizens.

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