RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of July 9, 2001 No. 11/2

About idea of Saryarkinsky district court of the city of Astana of recognition unconstitutional regulations of regulatory legal acts on introduction of time accounting of cost of services of local networks of telecommunications

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

the representative of the subject of the address - the chairman of Saryarkinsky district court of the city of Astana Kurmanova D. K.;

deputy of the Majilis of Parliament of the Republic of Kazakhstan, member of the committee on economic reform and regional development Urazalinov Sh. A.;

Minister of Transport and Communications of the Republic of Kazakhstan Masimov K. K.;

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

the chairman of the Agency of the Republic of Kazakhstan on regulation of natural monopolies, protection of the competition and support of small business of Imashev B. M.;

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

head of department of the Center of ensuring national security of the Republic of Kazakhstan with government communication of Committee Zeynullin A. Z.;

president of JSC Kazakhtelecom Bektasov A. A.;

representative of National league of consumers of Kazakhstan Akhmetzhanovy B. T.,

considered in open session idea of Saryarkinsky district court of the city of Astana of recognition unconstitutional provisions of the regulatory legal acts providing introduction of time accounting of cost of services of local networks of telecommunications.

Having studied the available materials, having heard speakers - members of the Constitutional Council of Kotov A. K. and Shopina V. D., performances of participants of meeting the Constitutional Council of the Republic of Kazakhstan ESTABLISHED:

In the Constitutional Council of the Republic of Kazakhstan idea of Saryarkinsky district court of the city of Astana of recognition unconstitutional number of provisions of the regulatory legal acts providing introduction of time accounting of cost of services of local networks of telecommunications arrived on June 18, 2001.

The claim of the citizen Dzhamburbayev R. Zh. was the cause for representation of court in the Constitutional Council., who considers that separate provisions of these regulatory legal acts contradict Item 2 of article 14 of the Constitution according to which nobody can be exposed to any discrimination based on the residence, and also to Items 2 and 3 of article 18 of the Constitution according to which everyone has the right to the mystery of personal telephone negotiations, and state bodies, public associations, officials and mass media shall provide to each citizen opportunity to study the documents affecting its rights and interests, decisions and sources of information.

The court asks that the Constitutional Council of the Republic of Kazakhstan by consideration of its representation resolved issue of compliance of the Constitution of the Republic of Kazakhstan:

Item 3 of the resolution of the Cabinet of Ministers of the Republic of Kazakhstan of May 23, 1995 N732 "About Rates for Communication Services";

Item 5.2 of Rules of provision of services by local networks of telecommunications, the cable and mail service approved by the joint order of the Ministry of Transport and Communications of the Republic of Kazakhstan of May 27, 1997 of N465 and the Ministries of Economy and Trade of the Republic of Kazakhstan of May 30, 1997 N81 (further Rules of provision of services by local networks of telecommunications).

By consideration of representation of Saryarkinsky district court of the city of Astana the Constitutional Council of the Republic of Kazakhstan proceeds from the following.

The constitution of the Republic of Kazakhstan, establishing competence of the Government of the Republic, provides that concerning the competence it publishes according to Item 1 of Article 69 of the Fundamental Law of the resolution, binding in all territory of the Republic of Kazakhstan. In the subitem 1) of Item 2 of article 13 of the Constitutional law "About the Government of the Republic of Kazakhstan" it is determined that it provides execution of the laws of the Republic, controls their execution by the ministries, other central and local executive bodies. The resolution of the Cabinet of Ministers of the Republic of Kazakhstan of May 23, 1995 was accepted N732 "About Rates for Communication Services" on basis and in pursuance of the Constitution of 1993 which in Article 84 allocated the Government of the Republic of Kazakhstan with competence to resolve issues of public administration and in article 86 upravomachivat it to publish the acts which are binding in all territory of the country. Regarding the Item disputed by court 3, this resolution answers regulations of article 66 of the existing Constitution about competence of the Government of the Republic. The resolution is accepted it according to the constitutional regulations and in borders of areas of jurisdiction of the Government of the Republic of Kazakhstan. It is not cancelled in the procedure established by the legislation and is acting.

In Item 3 of the resolution of the N732 Cabinet of Ministers Kazakhtelecom is offered "perform introduction of time accounting of cost of local calls in process of equipment of telecommunications agencies technical means".

Item 3 of the resolution of the "About Rates for Communication Services" Cabinet of Ministers is corresponded by Item 5.2 of Rules of provision of services by local networks of the telecommunications approved by the joint order of the Ministry of Transport and Communications of the Republic of Kazakhstan of May 27, 1997 of N465 and the Ministries of Economy and Trade of the Republic of Kazakhstan of May 30, 1997 N81.

In Item 5.2 of these Rules the operator of local network of telecommunications is granted the caused right "enter the system of time accounting of cost of local calls which is conforming to the main requirements to the equipment of time accounting of cost (ETAC), answering to regulations of metrological support and subject to obligatory state checking".

Having analyzed these provisions of the order of the Government N732 and Rules of provision of services by local networks of telecommunications on compliance to Item 2 of article 14 of the Constitution regarding nondiscrimination based on the residence, and also to Items 2 and 3 of article 18 of the Constitution that everyone has the right to the mystery of personal telephone negotiations and on providing to the citizen of opportunity to study the decisions and sources of information affecting its rights and interests, the Constitutional Council came to conclusion that they do not conflict to Constitution regulations.

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