RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of July 5, 2000 No. 13/2

About official interpretation of Item 2 of article 23 of the Constitution of the Republic of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the Acting Chairman of the Constitutional Council Shopin V. D., members of council Busurmanov Zh. D., Esenzhanov A., Kotov A. K. and Omarkhanova K. A., with participation of the representative of the subject of the address of the deputy of the Majilis of Parliament of the Republic of Kazakhstan Makalkin V. I., invited - the secretary of the Union of judges of the Republic of Kazakhstan Rekin A. A. and vice-chairman of Committee of registration service of the Ministry of Justice of the Republic of Kazakhstan Saparov E. A., considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 2 of article 23 of the Constitution of the Republic of Kazakhstan.

Having studied the provided materials, having heard speakers Busurmanov Zh. D. and Esenzhanov A., speeches of the representative of the subject of the address and other participants of meeting, the Constitutional Council of the Republic of Kazakhstan ESTABLISHED:

In the Constitutional Council of the Republic of Kazakhstan the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 2 of article 23 of the Constitution of the Republic of Kazakhstan in part "arrived on June 15, 2000... judges shall not consist in... labor unions...".

Activities of the Union of judges of the Republic of Kazakhstan as public association were the cause for the address. According to the subject of the address this Union is the labor union formed on the basis of belonging to one profession for the purpose of protection of the rights and professional interests of the judges of Kazakhstan who united in it. As it is noted in the address, it contradicts Item 2 of article 23 of the Constitution of the Republic of Kazakhstan determining that judges shall not consist in labor unions.

Having analyzed regulations of the Constitution of the Republic and the current legislation, the Constitutional Council proceeds from the following.

According to Item 1 of article 23 of the Constitution of the Republic citizens of Kazakhstan have right to liberty of associations. The granted constitutional right of citizens is exercised through creation of public associations in the form of the political parties, labor unions and other associations of non-commercial nature created on voluntary basis for achievement of common goals by them. Their activities are regulated by the laws of the Republic "About public associations", "About labor unions", "About political parties".

According to regulation of Item 2 of article 23 of the Constitution of the Republic of Kazakhstan military personnel, employees of bodies of homeland security, law enforcement agencies and judges, shall not consist in batches and labor unions, support any political parties. Their special legal status in system of bodies of the state, specificity of functions and kind of activity cause need of this constitutional restriction.

According to article 75 of the Constitution justice in the Republic of Kazakhstan is performed only by court. The judge is the carrier of judicial authority in the Republic for what it is allocated with the constitutional competences to perform justice and to fulfill the duties on professional basis. According to regulations of Items 1 and 2 of article 77 of the Constitution of the Republic the judge in case of administration of law is independent and submits only to the Constitution and the law. Any intervention in activities of court for administration of law is inadmissible and attracts legal accountability. At the same time, judges, as well as any citizens of the state, according to Item 1 of article 23 of the Constitution have right to liberty of associations for the purpose of realization and protection of the corporate interests, on condition of not use of these associations for influence on administration of law, and also not prosecution of political goals. Such associations are effective in the form of judicial associations, guilds, councils in many countries.

Labor unions unlike other public associations, including from the Union of judges, are created by production industry principle that determines nature of the relations developing between labor unions, the executive authority and employers. This feature of relations assumes investment of labor unions with levers on the power and the employer allowing it to influence their social and economic activities. The union of judges as public association, is not connected by the similar principles of relations. Moreover, he has no right to interfere with legal proceedings whereas labor unions according to article 1 of the Law "About Labor Unions" are created for representation and protection of the labor, social and economic rights and interests of the members and improvement of working conditions that assumes active and their direct impact on productive activity. Besides, labor unions participate in the conclusion of collective agreements, and also in permission of individual and collective employment disputes that is not characteristic of such public association as the Union of judges.

Based on stated, will lock stipulated in Item 2 articles 23 of the Constitution to judges to consist in batches, labor unions does not mean restrictions of their right to creation of other associations and membership in other public associations. The union of judges, as well as any other public association, has the right to represent and protect interests of the members in the procedure established by the legislation.

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