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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of September 5, 2003 No. 10

About idea of October district court of the Karaganda region of recognition unconstitutional applications of the order of Healthcare Committee of the Ministry of Education, culture and health care of the Republic of Kazakhstan of May 4, 1998 No. 240 "About introduction in practice of "Rules of medicolegal assessment of weight of harm to health"

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., having considered in open session idea of October district court of the Karaganda region of recognition unconstitutional the order of Healthcare Committee of the Ministry of Education, culture and health care of the Republic of Kazakhstan of May 4, 1998 of N240 "About introduction in practice of "Rules of medicolegal assessment of weight of harm to health", Established:

1. In representation of October district court of the Karaganda region it is specified that in its production there is criminal case concerning minors Beysembayev N. and Polishchuk Yu. Follows from the appeal of court that are qualified by bodies of preliminary inquiry of action of defendants on the Item "and" of part two of article 179 of the Criminal code of the Republic (the robbery committed by group of persons on preliminary alignment) based on the conclusion of forensic medical examination which is taken out according to the order of Healthcare Committee of the Ministry of Education, culture and health care of the Republic of May 4, 1998 by N240 (further - the Order).

The October district court considers application of the Order in criminal procedure to N5 "About Court Practice on Cases on Robbery and Robbery" contradicting the Law of the Republic of March 24, 1998 "About regulatory legal acts", to the resolution of the Plenum of the Supreme Court of the Kazakh SSR of December 7, 1961, Items 1 and 3 of Article 39, to the subitem 9) of Item 3 of article 77 of the Constitution of the Republic. According to court, the specified circumstances significantly limit constitutional rights and freedoms of the citizens who underwent to criminal prosecution and are absolute obstacle in case of permission of case.

In representation of court it is specified that in defiance of requirements of Item 1 of article 38 of the Law "About Regulatory Legal Acts" Order, concerning the rights, freedoms and obligations of citizens, did not undergo obligatory registration in the Ministry of Justice and, therefore - has no legal force.

Besides, there is existing resolution of the Plenum of the Supreme Court of the Kazakh SSR of December 7, 1961 of N5 (with changes and amendments of June 12, 1968, on December 22, 1989, on December 20, 1996) in which in case of differentiation of structures of robbery and robbery it is offered to be guided by the Rules of medicolegal determination of severity of bodily harms approved by the order of the Ministry of Health of the Kazakh SSR of December 11, 1978 N1208. The court believes that the Order, unlike the specified Rules, does not give accurate differentiation between robbery and robbery on severity of bodily harms, thereby, its provisions violate constitutional rights and freedoms of citizens.

Follows from representation of October district court that the rights and freedoms of citizens can be limited only to the laws and only in certain cases (Items 1 and 3 of article 39 of the Constitution), but not bylaws. Because Beysembayev and Polishchuk's actions are qualified based on the illegal Order of Healthcare Committee, the court considers that owing to the subitem 9) of Item 3 of article 77 of the Constitution the conclusion of forensic medical examination shall not have legal force.

2. The appeal of October district court cannot be considered in essence on the following bases.

The constitution of the Republic does not contain the requirement about obligatory state registration of regulatory legal act. Item 8 of article 62 of the Constitution determines that the procedure for development, representations, discussions, enforcement and publication of regulatory legal acts of the Republic is regulated by the special law. The regulations on registration of acts contain in the Law "About Regulatory Legal Acts". The constitutional Council cannot consider subordinate regulatory legal acts regarding their compliance to the laws. Consideration of the laws and other regulatory legal acts only regarding compliance to Constitution regulations (articles 72 and 78 of the Constitution of the Republic) is within its competence. On the same basis the Constitutional Council has no right to check the Order on compliance to the resolution of plenum of the Supreme Court.

Subitem provisions 9) of Item 3 of article 77 of the Constitution assume legal insolvency of the evidence obtained by obviously illegal methods. It is determined that at the time of investigation of criminal case concerning Beysembayev and Polishchuk any of state bodies did not give legal treatment to the challenged Order provisions and it is not acknowledged in accordance with the established procedure to the contradicting Constitutions or the laws of the Republic. Due to stated to consider that bodies of preliminary inquiry the decision of forensic medical examination on above-mentioned criminal case is received by illegal method of the bases is not available. Owing to requirements of Item 3 of article 77 of the Constitution establishment and recognition of legality of proofs as the principle of administration of law, is within the exclusive competence of the judge considering legal case, but not other officials or state bodies.

In defiance of requirements of Article 22 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan" the October district court in representation did not specify what specifically constitutional rights and freedoms of citizens are limited to Order regulations (Item 1 of article 39 of the Constitution) and therefore its reference to Item 3 of article 39 of the Constitution is insolvent.

Follows from the address that the October district court asks to recognize unconstitutional law-enforcement practice in criminal procedure, but not regulations and provisions of the Order that does not belong to the constitutional powers of the Constitutional Council.

It should be noted what questions of check of compliance of the Order to the laws of the Republic, ensuring single law-enforcement practice of courts belongs to powers of the Prosecutor General's Office and Supreme Court of the Republic (Item 1 of Article 83, articles 76 and 81 of the Constitution).

Based on stated, being guided by article 72 of the Constitution of the Republic of Kazakhstan, Articles 17 and 22, the subitem 2) of Article 25, Articles 31-33 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan decides:

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