RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of August 5, 2002 No. 5

About compliance of the Constitution of the Republic of Kazakhstan of the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning public prosecutor's supervision"

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. and Omarkhanov K. A. with participation:

the representative of the subject of the address - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Abdrakhmanov S.,

assistant manager State and legal department of Administration of the President of the Republic of Kazakhstan of Belorukov N. V.,

deputies of the Senate and Majilis of Parliament of the Republic of Zhumabayev E. Zh. and Sarpekova R. K.,

chairman of board on civil cases of the Supreme Court of the Republic of Kazakhstan Raimbayev S. I.,

First Deputy Attorney-General of the Republic Zhumabekov O. I. and deputy attorney general of the Republic Daulbayev A. K.,

the representative of the Government of the Republic of Kazakhstan - the vice-Minister of Justice of the Republic Shamsutdinov R. Sh.,

chief of legal management of KNB of the Republic Abdrakhmanov G. Zh. and deputy chief of investigative department of the Ministry of Internal Affairs of the Republic Cherepova of A.M.,

experts: Sapargaliyeva G. is doctors of jurisprudence, professors, the member of the correspondent of National academy of Sciences of the Republic, Kogamova M. Ch. is doctors of jurisprudence, professor,

considered in open session the address of group of deputies of Parliament 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 public prosecutor's supervision".

Having studied information provided by the Government, the Prosecutor General's Office and the Ministry of Justice of the Republic, the expert opinion 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:

The law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning public prosecutor's supervision" is accepted by Parliament of the Republic on June 25, 2002 and arrived for the signature to the President of the Republic of Kazakhstan on July 1, 2002.

According to the subitem 2) of Item 1 of article 72 of the Constitution 24 deputies of Parliament of the Republic sent to the Constitutional Council the appeal about check of constitutionality of the above-mentioned Law.

1. According to the subject of the address, some provisions of the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Public Prosecutor's Supervision" do not correspond to the Constitution of the Republic of Kazakhstan on the following bases:

1) the subitem 3) of Item 15 and Item 18 of the Law the list of officials of the bodies of prosecutor's office having the right of suspension of legal acts of courts on criminal and civil cases extends. In particular, this right allocates deputy attorneys general that contradicts the constitutional principles of obligation of court resolutions (Item 3 of article 76 of the Constitution) and independence of the judge (Items 1 and 2 of article 77 of the Constitution);

2) justice is performed only by court (Item 1 of article 75 of the Constitution), its decisions on the disputed questions are final and obligatory for execution in this connection only its decisions shall be performed forcibly (Item 3 of article 76 of the Constitution). Forced execution of acts of public prosecutor's reaction (the subitem 19) of Item 5 and Item 16 of the Law), and also establishment of measures of responsibility for their non-execution (Item 14 and the subitem 4) of Item 20 of the Law) do not correspond to both above-mentioned constitutional provisions, and regulations of article 13 of the Constitution as the right of citizens to judicial protection is violated;

3) investigation and search operations are held only in case of investigation of criminal case, in other spheres of legal relationship they are inadmissible. Therefore investment of prosecutor's office with the right to initiate (the subitem 2) of Item 2 of the Law) conducting investigation and search operations outside the criminal procedure relations will not be approved with the constitutional powers of the prosecutor's office exercising the highest supervision of legality of operational search activities (Item 1 of article 83 of the Constitution);

4) the bill "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Public Prosecutor's Supervision" provided by the Government of the Republic provided amendments to 17 legal acts. Deputies of the Majilis of Parliament of the Republic during discussion made conceptual changes and additions to three legal acts: Criminal procedure and Civil procedural codes, the Code of Administrative Offences that contradicts the procedures of initiation of bills by subjects of the legislative initiative determined by the Constitution.

Considering the address of group of deputies of Parliament of the Republic regarding compliance of the Constitution of the Republic of Kazakhstan the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Public Prosecutor's Supervision", the Constitutional Council of the Republic of Kazakhstan proceeds from the following.

According to Item 3 of article 76 of the Constitution of the decision, sentences and other resolutions of courts are binding in all territory of the Republic. This constitutional principle means as obligation concerning the circumstances established by court, their legal treatment and instructions specified in court resolutions, and obligatory execution of legal acts of courts by all state bodies and their officials, physical persons and legal entities.

Meanwhile, decisions, sentences and other resolutions of courts have no finality sign.

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