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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of July 9, 2001 No. 12/2

About constitutionality of the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan", accepted by Parliament of the Republic of Kazakhstan on June 26, 2001

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Hitrin Yu. A., members of council Busurmanov Zh. D., Kotov A. K., Omarkhanova K. A. and Shopina V. D., with participation:

the representative of the subject of the address - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Makalkin V. I.;

deputy attorney general of the Republic of Kazakhstan Daulbayev A. K.;

vice-Minister of Justice of the Republic of Kazakhstan Kotlov A. N.;

first deputy of the Agency on management of land resources of the Republic of Kazakhstan Sizov A. P.;

first deputy akim of Astana Galimov F. H.,

considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan 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", accepted by Parliament on June 26, 2001.

Having studied the available materials, having heard the speaker - the member of council Busurmanov Zh. D. and participants of meeting, the Constitutional Council of the Republic of Kazakhstan ESTABLISHED:

1. In the Constitutional Council of the Republic of Kazakhstan the address of group of deputies of Parliament of the Republic of Kazakhstan about compliance of the Constitution of the Republic of Kazakhstan of the subitem 1) of Item 2 of the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan", the Parliament of the Republic of Kazakhstan and the Parliament of the Republic of Kazakhstan accepted by the Senate approved by the Majilis on June 26, 2001 on July 2, 2001 arrived.

This subitem makes addition to item 4 of article 3 of the Law of the Republic of Kazakhstan "About the status of the capital of the Republic of Kazakhstan" of May 20, 1998 according to which executive bodies of the capital within the competence make decisions on withdrawal (redemption) of lands for the state needs. At the same time owners of the parcels of land or non-state land users shall not later than three months before the forthcoming withdrawal (redemption) of sites be in writing notified on it according to the procedure, established by the legislation of the Republic of Kazakhstan. According to the subject of the address it worsens the rights of residents of the capital in comparison with the rights of inhabitants of other regions of the country. This conclusion is based that according to Article 255 of the Civil code of the Republic of Kazakhstan (further - group of companies) and Articles 67, of 69, 70 Laws of the Republic of Kazakhstan in all territory of the Republic the executive body about withdrawal of the parcel of land for the state needs shall notify "On the earth" in writing the owner one year prior to withdrawal.

In this connection, deputies of Parliament addressed to the Constitutional Council about recognition of the subitem 1) of Item 2 of the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan" accepted by Parliament of the Republic of Kazakhstan on June 26, 2001, inappropriate to article 14 of the Constitution of the Republic of Kazakhstan which fixed equality of all before the law and rejecting какуюлибо discrimination based on the residence or on any other circumstances.

2. Having analyzed regulations of the Constitution of the Republic and materials according to the considered address, the Constitutional Council proceeds from the following.

The regulations of Item 1 of article 14 of the Constitution of the Republic that all are equal before the law and court establish equal rights and obligations of man and citizen, equal protection of these rights by the state and equal responsibility of everyone to the law. Item 2 of article 14 of the Constitution of the Republic prohibits any discrimination of the personality on motive of the residence or on any other circumstances.

Item 2 of article 26 of the Constitution of the Republic allows possibility of deprivation of property, but only in case of obligatory observance of two conditions: a) for the state needs in exceptional cases provided by the law; b) on condition of equivalent compensation. The Constitutional Council in the resolution of December 20, 2000 N 21/2 paid attention to these circumstances. And, the Constitution does not determine content of the concepts "state needs", "exceptional cases", "conditions of equivalent compensation". It assigns this task to the laws.

The existing civil legislation, establishing the bases of the termination of the property right, recognizes the fundamental principle that the property right can be stopped only at will of the owner. Forced withdrawal at the owner of property on paid basis is allowed only in exceptional cases, group of companies provided in Article 249. Also alienation of real estate in connection with withdrawal of the parcel of land is referred to them, in particular, (the subitem 5) of Item 2 of the provided Article of group of companies). In Item 1 of Article 255 of group of companies the termination of the property right to the real estate in connection with withdrawal of the parcel of land on which are belonging to the owner the house, other structures, constructions or plantings is allowed only in the cases and procedure established by legal acts with representation to the owner of equivalent property and compensation of other suffered losses or compensation to it in full the losses caused by the termination of the property right. In case of disagreement of the owner with the decision of state body attracting the termination of the property right it cannot be performed to the dispute resolution judicially (Item 2 of Article 255 of group of companies).

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