NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of May 29, 2024 No. 45-NP

About interpretation of Item 6 of the deciding part of the normative resolution of the Constitutional Council of the Republic of Kazakhstan of March 6, 1997 No. 3 "About official interpretation of Item 1 of Article 4, Item 1 of Article 14, the subitem 3) Item 3 of Article 77, Item 1 of Article 79 and Item 1 of article 83 of the Constitution of the Republic of Kazakhstan"

NAME OF THE REPUBLIC OF KAZAKHSTAN

Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., Eskendirov A. K. judges., Zhakipbayeva K. T., Zhatkanbayeva A. E., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation of representatives:

the subject of the address - the chief of staff of the Attorney-General of the Republic of Kazakhstan Mukhamedzhanov A. O.,

The Supreme Court of the Republic of Kazakhstan - the deputy manager of Judicial administration of Musralinov A. S.,

Committee of homeland security of the Republic of Kazakhstan - the deputy chief of Investigative department Kaynazarov O. M.,

The Ministries of Internal Affairs of the Republic of Kazakhstan - the First Deputy Minister Kozhayev M. Sh.,

The Ministries of Justice of the Republic of Kazakhstan - Zhakselekovy B. Sh. vice-minister,

Anti-corruption agencies of the Republic of Kazakhstan - the deputy manager of Service of pre-judicial investigation Muratov A. K.,

Financial monitoring agencies of the Republic of Kazakhstan - the deputy manager of Investigative department Bagbanula K.,

The office of the Majilis of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Tasbolatov Zh. S.,

The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,

Republican Bar - the member of scientific and advisory council Nurkeeva A. A.,

considered in open session the petition of the Attorney-General of the Republic of Kazakhstan for interpretation of Item 6 of the deciding part of the normative resolution of the Constitutional Council of the Republic of Kazakhstan of March 6, 1997 No. 3 "About official interpretation of Item 1 of Article 4, of Item 1 of Article 14, of the subitem 3) of Item 3 of Article 77, of Item 1 of Article 79 and Item 1 of article 83 of the Constitution of the Republic of Kazakhstan".

Having heard speakers - judges of the Constitutional Court of the Republic of Kazakhstan of Udartsev of Page F., Zhakipbayeva K. T. and participants of meeting, having studied the expert opinion - professors of Eurasian national university of name L.N. Gumilev, doctor of jurisprudence Akhpanov A. N., materials of the constitutional production and having analyzed the law in force of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan

established:

According to the subitem 1) of Item 1 of article 60 of the Constitutional law of the Republic of Kazakhstan of November 5, 2022 "About the Constitutional Court of the Republic of Kazakhstan" in the Constitutional Court of the Republic of Kazakhstan (further - the Constitutional Court) the petition of the Attorney-General of the Republic of Kazakhstan (further - the Attorney-General) about interpretation of Item 6 of the deciding part of the normative resolution of the Constitutional Council of the Republic of Kazakhstan (further - the Constitutional Council) of March 6, 1997 No. 3 "About official interpretation of Item 1 of Article 4, of Item 1 of Article 14, of the subitem 3) of Item 3 of Article 77, of Item 1 of Article 79 and Item 1 of article 83 of the Constitution of the Republic of Kazakhstan" arrived (further - the normative resolution of the Constitutional Council of March 6, 1997 No. 3) in the context of exclusiveness of competence of prosecutor's office on representation of interests of the state in court when implementing the highest supervision of legality of pre-judicial investigation.

The subject of the address notes that in the existing criminal procedure legislation there are regulations on certain decisions of the investigative judge in stage of pre-judicial investigation in case of which acceptance the prosecutor does not represent interests of the state in court. So, by consideration of questions of authorization of application of pledge, temporary discharge from position, property attachment, prohibition on approach, survey, search, dredging, forced survey, exhumation of corpse, carrying out secret investigative actions and prolongation of terms of their carrying out, personal search, forced receipt of samples, the forced placement of person who is not held in custody to the medical organization for production of forensic-psychiatric and (or) medicolegal examinations the investigative judge makes the decision without participation of the prosecutor based on the materials provided by the body performing pre-judicial investigation.

Thus, by consideration by the investigative judge of questions of authorization of number of investigative actions and measures of criminal procedure coercion he is limited only by opinion of officials of the body performing pre-judicial investigation. Persons concerning whom these actions are appointed do not inquire about them and, respectively, cannot timely exercise constitutional right on protection the rights and freedoms by all methods which are not contradicting the law, and also on judicial protection (in case of decision making by the investigative judge).

By consideration of the petition of the Attorney-General and interpretation of the considered normative resolution of the Constitutional Council of March 6, 1997 No. 3 in relation to subject of the petition the Constitutional Court proceeds from the following.

1. According to Item 1 of article 1 of the Constitution of the Republic of Kazakhstan (further - the Constitution, the Fundamental Law) the supreme values of the Republic of Kazakhstan "are the person, his life, the rights and freedoms". The protection of the supreme constitutional values which is important component of interests of the state is imputed obligations of public authorities concerning their competence enshrined in the Constitution and in the legislation on these bodies.

In Items 1 and 4 of article 83 of the Constitution it is fixed: "The prosecutor's office on behalf of the state performs in the limits and forms established by the law the highest supervision of respecting the rule of law in the territory of the Republic of Kazakhstan, represents the interests of the state in court and on behalf of the state performs criminal prosecution", and also is specified that competence, the organization and procedure for activities of prosecutor's office are determined by the constitutional law.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info