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The document is cancelled since  November 3, 2017 according to the Normative Resolution of the Constitutional Council of the Republic of Kazakhstan of November 3, 2017 No. 3

RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of April 4, 2002 No. 2

About check of constitutionality of the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning religious liberty and activities of religious associations"

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 Head of state - the assistant manager state and legal department of Administration of the President of the Republic of Belorukov N. V.,

deputy of the Senate of Parliament of the Republic Zhusupov B. G. and deputy of the Majilis of Parliament of the Republic Aytala A. A.,

Minister of Cultural Affairs, information and public consent of the Republic of Kulmukhammed M. A.,

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

secretary of Council for bonds with religious associations under the Government of the Republic Mukhashov A. M.,

Umurkulov M. K. experts. - head of the department of the civil law and process of the Kazakh humanitarian and legal university, Candidate of Law Sciences, associate professor and Saparov E. A.,

considered in open session the address of the President of the Republic of Kazakhstan about check of constitutionality of the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning religious liberty and activities of religious associations".

Having studied the documents submitted by Chambers of Parliament, the Government, the Supreme Court, the Prosecutor General's Office of the Republic of Kazakhstan and advisory committee of experts in freedom of religion and religions of the OSCE/ODIHR and also other materials of the constitutional production, having heard the message of the member rapporteur 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:

1. The law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning religious liberty and activities of religious associations" is accepted by Parliament of the Republic on January 31, 2002 and provided for the signature to the President of the Republic of Kazakhstan on February 8, 2002.

According to the subitem 2) of Item 1 of article 72 of the Constitution the Head of state sent to the Constitutional Council the appeal about check of constitutionality of the above-mentioned Law.

2. Considering the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Religious Liberty and Activities of Religious Associations" regarding compliance of the Constitution of the Republic of Kazakhstan, the Constitutional Council of the Republic of Kazakhstan paid attention to constitutionality of following provisions:

the subitem 3) Item 3 of the Law regarding possibility of restriction with legal acts of the right to free distribution of religious beliefs;

the subitem 13) Item 3 on state registration of Islamic religious associations according to the recommendation of Spiritual management of Muslims of Kazakhstan;

the subitem 17) Item 3 of the Law providing implementation of construction and (or) opening of Muslim cult buildings and constructions with the permission of Spiritual management of Muslims of Kazakhstan.

3. Implementation of freedom to extend religious beliefs follows from regulation of Item 2 of article 20 of the Constitution of the Republic: "Everyone has the right freely... distribute information by any, not prohibited by the law method".

According to Item 1 of article 39 of the Constitution the specified right can be limited only to the laws and only in that measure in what it is necessary for the purpose of protection of the constitutional system, protection of public order, human rights and freedoms, health and morality of the population. The regulations on possibility of restriction of the right to distribution of religious beliefs with legal acts containing in the subitem 3) of Item 3 of the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Religious Liberty and Activities of Religious Associations", contradict this constitutional requirement as allows restriction of rights of man and citizen with regulatory legal acts of smaller legal force, than the law or the presidential decree of the Republic of Kazakhstan which is valid the law as the concept of legal acts, according to article 1 of the Law of the Republic of March 24, 1998 "About regulatory legal acts", includes also resolutions of Parliament of the Republic and its Chambers.

4. Secular nature of the state, stipulated in Item 1 article 1 of the Constitution, assumes department of religion from the state.

The specified regulation principle is concretized in other constitutional regulations. According to Item 1 of article 5 of the Constitution merge of public and state institutes is not allowed. According to article 14 of the Constitution all are equal before the law that, in relation to object of research, implies equality of all religions and religious associations before the law, provision non-admission to some religions and religious associations of any benefits in relation to others, prohibition on discrimination based on the relation to religion, beliefs or on any other circumstances.

Meanwhile, by the subitem 13) of Item 3 of the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Religious Liberty and Activities of Religious Associations" it is determined that state registration of Islamic religious associations it is performed according to the recommendation of Spiritual management of Muslims of Kazakhstan. Besides, subitem regulations 17) of Item 3 of the Law provide that with the permission of Spiritual management of Muslims of Kazakhstan the construction and (or) opening of Muslim cult buildings and constructions is performed.

Thus, to the Spiritual management of Muslims of Kazakhstan which is religious consolidation of the citizens professing Islamic dogma (the charter is re-registered on May 23, 1996 in the city of Almaty by the Ministry of Justice of the Republic), the powers having allowing nature which are only within the competence of the state are conferred by the Law.

The Constitutional Council sees violation of provisions of Item 1 of Article in it 1, of Item 1 of Article 5 and article 14 of the Constitution of the Republic.

Based on stated the Constitutional Council of the Republic considers that the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning religious liberty and activities of religious associations" contradicts the Constitution of the Republic of Kazakhstan.

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