of June 23, 2004 No. 6
About official interpretation of Item 1 of article 79 of the Constitution of the Republic of Kazakhstan
The constitutional Council of the Republic of Kazakhstan as a part of the chairman - the member of council Kotov A. K. and members of council of Abishev H. A., Baltabayeva K. Zh., Bychkova of Page F., Omarkhanova K. A. with participation:
the representative of the subject of the address - the vice-Minister of Justice of the Republic Baymaganbetov S. N.,
head of department concerning judicial system of State legal department of Administration of the President of the Republic of Kazakhstan Pakirdinov M. A.,
judge of the Supreme Court of the Republic Baishev Zh. N.,
deputy attorney general of the Republic Daulbayev A. K.,
vice-Minister of Labour and Social Protection of the population of the Republic Abdykalikova G. N.
considered in open session the address of the Prime Minister of the Republic of Kazakhstan about official interpretation of Item 1 of article 79 of the Constitution of the Republic of Kazakhstan.
Having studied materials of the constitutional production, having heard the speaker - the member of the Constitutional Council Omarkhanov K. A., the representative of the subject of the address and participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:
In the Constitutional Council of the Republic the address of the Prime Minister of the Republic about official interpretation of Item 1 of article 79 of the Constitution of the Republic of Kazakhstan which contains request arrived to provide answers to questions:
Whether 1) follows from the formulation containing in Item 1 of article 79 of the Constitution "courts consist of regular judges" that judges of the Republic of Kazakhstan are appointed (are chosen) for life?
Whether 2) should be understood that stipulated in Item 1 article 79 of the Constitution the provision according to which "powers of the judge can be stopped or suspended only on the bases the established law", allows application to judges of regulations of the current legislation about dismissal in connection with achievement of retirement age?
In case of interpretation of regulations of Item 1 of article 79 of the Constitution of the Republic of Kazakhstan in relation to the questions raised in the address the Constitutional Council of the Republic of Kazakhstan proceeds from the following.
1. According to Item 1 of article 75 of the Constitution of the Republic "justice in the Republic of Kazakhstan is performed only by court". In the resolution of the Constitutional Council of February 15, 2002 N1 is about it told that "only courts as the bodies representing judicial branch of the government perform justice". Specifics of implementation of justice as professional activity of the judge who is carrying out public tasks of judicial authority predetermine its special legal status which is established and guaranteed by the Fundamental Law (Articles 77, of 79, of 80, of 82).
The status of the judge is designed to provide independent and impartial execution assigned to it by the Constitution and the laws of powers for the valid protection of the rights and freedoms of everyone (Article 76 and 77, Item 2 of article 13 of the Constitution). Therefore the Fundamental Law establishes special rules (requirements) of regulation of the status of the judge caused by tasks, the principles and features of judicial activities, the purpose of ensuring maintenance of high level of implementation of justice.
So, the Constitution establishes one of fundamental signs of legal status of the judge - its permanency ("courts consist of regular judges", Item 1 of Article 79) which provides independence in case of departure of justice by it and assumes implementation by the judge of the powers on permanent basis since appointment (election) to position until their termination. At the same time guarantee of legal stability of provision of the judge is the special procedure for investment of judges with powers, stipulated in Article 82 Constitutions, and also their suspension or the termination precisely on the bases, the established law (Item 1 of article 79 of the Constitution). Similar legal line items contain in the existing resolution of the Constitutional Council of March 6, 1997 of N3.
The fundamental law does not contain regulations on lifelong accessory to the judge of its status. Also the right of the judge to hold the position and to perform the powers for life, and also obligation of the state to provide it for this purpose constitutional legal guarantees do not follow from regulations of the Constitution.
2. The constitution establishes special requirements to candidates for judgeship (Item 3 of Article 79), to procedure for investment of judges with powers (Article 82) and to their stay in position (Article 77, Items 2 and 4 of Article 79). At the same time regulations of the Fundamental Law do not provide the special list of the bases of the termination of powers of the judge.
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