of June 10, 2003 No. 8
About compliance of the Constitution of the Republic of Kazakhstan of the Land code of the Republic of Kazakhstan
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 S. F., Esenzhanova A., Kotov A. K. and Omarkhanova K. Ampere-second participation:
the representative of the Head of state - the manager of the sector of state and legal department of Administration of the President of the republic Akkulev A. Sh.,
Minister of Justice of the republic Zhumabekov O. I.,
deputy of the Senate of Parliament of the republic Burlakov L. N., deputies of the Majilis of Parliament of the republic of Abdiyev Zh. N. and Beysenbayev A. A.,
deputy attorney general of the republic Daulbayev A. K.,
vice-Minister of Agriculture of the republic Kurishbayev A. K.,
chairman of the Agency of the republic on management of land resources Ospanov B. S.,
considered in open session the address of the President of the Republic of Kazakhstan about check of constitutionality of the Land code of the Republic of Kazakhstan.
Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional Council Omarkhanov K. A., speeches of the representative of the subject of the address and participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:
The land code of the Republic of Kazakhstan is accepted by Parliament of the republic on May 19, 2003 according to Item 7 of article 61 of the Constitution of the Republic of Kazakhstan without vote and provided for the signature to the President of the republic on May 27, 2003.
Considering the Land code of the republic regarding its constitutionality, the Constitutional Council of the Republic of Kazakhstan proceeds from the following fundamental provisions of the Constitution of the Republic of Kazakhstan which shall be taken as basis of legal regulation of the legislation on the earth:
1) general beginnings and principles (Item 2 of Article 2, Items 1 and 2 of Article 4, Items 1 and 2 of Article 5, Article 6);
2) the regulations regulating constitutional rights and freedoms of citizens (Items 2 and 5 of Article 12, Item 2 of Article 13, Article 14, Items 2, 3 and 4 Articles 26, Item 1 of Article 31, Article 38, Item 1 of Article 39).
1. According to Item 3 of article 6 of the Constitution "The earth and its subsoil, waters, plant and animal life, other natural resources are in state-owned property. The earth can be also in private property on the bases, conditions and in the limits established by the law".
These constitutional regulations mean that in case of regulation of land relations the Constitution fixes supremacy of the state in determination of legal regimes of property and turnover of the earth, up to establishment of the mode of exclusive property of the state on the earth. At the same time legal issues of property and land relations in the republic are regulated by the laws and legal acts equal to them on legal force, on the basis of the general beginnings and regulations of the Constitution of the republic (Items 1 and 2 of article 4 of the Constitution, resolution of the Constitutional Council of April 13, 2000 N2/2 and of April 23, 2003 N 4).
Such act, in relation to land relations, is the Land code (further - the Code) which is directed to creation of favorable legal conditions and guarantees for realization by citizens of the constitutional rights and freedoms in the social and economic sphere, including by introduction according to Item 3 of article 6 of the Constitution of private property on some categories of lands.
Item 2 of article 2 of the Constitution says: "Sovereignty of the republic extends to all its territory. The state provides integrity, immunity and inalienability of the territory". In the resolution of the Constitutional Council of April 23, 2003 N4 is about it told that the territory of the state represents space limit in which the state as the sovereign organization of the power exists and is effective. Integrity, immunity and inalienability of the territory which part the earth, its subsoil, waters, plant and animal life, other natural resources are are the determining conditions of homeland security, the Constitutions provided and protected by the state on the basis of regulations and international law.
The above-mentioned constitutional principles are the basis for legal regulation of land relations in Kazakhstan (Article 4, Item 7 of Article 6, of Article 7, of 34, 37 and Item 8 of article 170 of the Code).
The general constitutional beginnings of development of the relations of property in the republic, somehow: "are recognized and are similarly protected the state-owned and private property" (Item 1 of Article 6) and "obliges property, 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" (Item 2 of Article 6) - are concretized in Code regulations.
So, the private property on the earth also is recognized the Code along with state (Article 3, undressed 2). At the same time the single mechanism of their protection which is based on general for all participants of land relations the legislation of the republic (articles 6 and 164 of the Code) is provided. As the principles and tasks of the legislation on the earth are established: preserving earth and prevention of causing damage by it; regulation of land relations for the purpose of ensuring rational use and protection of lands, reproduction of fertility of soils, preserving and improvements of the environment; protection of land rights of physical persons and legal entities and state (articles 4 and 5 of the Code). It is provided in Item 3 of article 6 of the Code that implementation by subjects of land relations of the rights belonging to them shall not do harm to the earth and other objects of the environment.
Achievement of the specified purposes and tasks is promoted by the rights and obligations of owners and land users on use of the parcels of land (articles 64 and 65 of the Code), and also conditions of the termination of the property right or land use in case of violation of the law about the earth (article 93 of the Code). Chapter 20 of the Code contains the regulations directed to protection of the rights of participants of the land legal relationship, indemnification caused by wrongful acts (bezdeystviye) of other subjects, including state bodies and their officials.
The constitutional regulations about non-admission of merge of public and state institutes, about assignment prohibition on public associations of functions of state bodies (Items 1 and 2 of article 5 of the Constitution) are provided with provisions of Chapters 2 and 18 of the Code in which legal issues of regulation of land relations are carried to prerogative of the relevant state bodies and exclude the decision their non-state structures.
2. That in the Republic of Kazakhstan the supreme values are the person its right and freedom (Item 1 of article 1 of the Constitution), the Fundamental law approves one of basic signs of the constitutional state - human rights and freedoms determine content and application of the laws and other regulatory legal acts (Item 2 of article 12 of the Constitution). The specified rule is conceptual basis of the law in force in Kazakhstan, and it is considered in the Code.
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