RESOLUTION OF THE RESPULIKA CONSTITUTIONAL COUNCIL KAZAKHSTAN

of December 6, 2000 No. 20/2

About idea of court of the city of Balkhash of the Karaganda region of recognition unconstitutional article 52 of the Code of the Kazakh SSR about administrative offenses and Item 5 of notes to article 175 of the Criminal Code of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the Acting Chairman Akuyev N. I., members of council Busurmanov Zh. D., Esenzhanov A., Kotov A. K., Omarkhanova K. A. and Shopina V. D., with participation of the vice-Minister of Justice of the Republic of Kazakhstan Kotlov A. N. and the consultant of State and legal department of Administration of the President of the Republic of Kazakhstan Nugmanov T. E., considered in open session idea of court of the city of Balkhash of the Karaganda region of recognition unconstitutional article 52 of the Code of the Kazakh SSR about administrative offenses and Item 5 of notes to article 175 of the Criminal Code of Kazakhstan. Having studied the available materials, the expert opinion - the doctor of jurisprudence, the head of the department of the criminal law and process of Institute of the right of Eurasian state university of L. N. Gumileva Baltabayeva K. Zh., having heard the speaker - the member of council Esenzhanov A., Kotlov A. N. performances. and Nugmanova T. E., the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan idea of court of the city of Balkhash of the Karaganda region of recognition unconstitutional the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning fight against crime" of May 5, 2000 regarding the text arrived: in Item 1 of the Law from the words "State Article 52 in the Following Edition..." to words "... Item 3 of the Law established by the legislation of the Republic of Kazakhstan" and in the subitem 25) from the words "Petty Theft of Alien Property..." to words "... according to the law".

Follows from representation that in production of court of the city of Balkhash of the Karaganda region there is criminal case on Kalapbergenov M. T. accusation. on the Item of part two of article 175 of the Criminal Code of Kazakhstan providing responsibility for theft. Kalapbergenov M. T. involvement. to criminal liability it is performed according to the Law "About Modification and Amendments in Some Legal Acts of the Republic of Kazakhstan concerning Fight Against Crime" which changed former edition of article 52 of the Code of Administrative Offences of the Kazakh SSR (далееКоАП KAZSSR) and the added Item 5 of the note to article 175 of the Criminal Code of Kazakhstan (further - the Criminal Code of Kazakhstan).

As in the given provisions of the law KAZSSR is about giving of new edition to the article 52 Administrative Code and amendment of notes to the article 175 Criminal Code of Kazakhstan new Item 5, it is necessary to recognize that the subject of the address asks to recognize unconstitutional the article 52 Administrative Code KAZSSR and Item 5 of notes to the article 175 Criminal Code of Kazakhstan.

The court motivates the representation with the fact that according to the article 52 Administrative Code KAZSSR and to Item 5 of notes to the article 175 Criminal Code of Kazakhstan, at the cost of the stolen property which is not exceeding the tenfold size of the monthly settlement indicator established by the legislation of the Republic depending on property accessory in one cases comes the administrative responsibility, in others sluchayakhugolovny. According to court, such legislative solution of question of responsibility for plunder infringes at the rights and freedoms of man and citizen affirmed by the Constitution of the Republic of Kazakhstan and contradicts Item 1 of Article 6, to Item 2 of article 14 of the Constitution. Due to stated, the court suspended proceeedings and appealed to the Constitutional Council to recognize unconstitutional the article 52 Administrative Code KAZSSR and Item 5 of notes to the article 175 Criminal Code of Kazakhstan.

By consideration of representation of court of the city of Balkhash the Constitutional Council of the Republic of Kazakhstan proceeds from the following.

KAZSSR and Item 5 of notes to the article 175 Criminal Code of Kazakhstan follows from the article 52 Administrative Code that the administrative responsibility for petty theft of the property belonging on the property right of the organization or being under its authority comes provided that the cost of stolen property does not exceed the tenfold size of the monthly settlement indicator established by the legislation of the Republic of Kazakhstan at the time of act making, and for theft of the property belonging to citizens there comes criminal liability irrespective of the cost of the kidnapped person.

According to court, the stated above regulations contradict Item 1 of article 6 of the Constitution according to which the Republic of Kazakhstan are recognized and are similarly protected the state-owned and private property. The court brings such arguments into reasons for their illegality: human rights and freedoms, including the property right of citizens, cannot be acknowledged priority in relation to the rights of the state and legal entities; citizens, in sense and according to Item 2 of article 14 of the Constitution, cannot be exposed to discrimination in case of permission of question of their responsibility for making of identical illegal actions against someone else's property based on its accessory.

However does not follow from Item 1 of article 6 of the Constitution that the state guarantees equal protection of property by establishment of identical responsibility for making of identical illegal actions against someone else's property. According to Item 2 of article 6 of the Constitution the amount and limits of implementation by owners of the rights, guarantee of their protection are determined by the law. According to the subitem

1) Item 3 of article 61 of the Constitution, the legislator has the right to issue the laws concerning responsibility of physical persons proceeding from public danger of offenses, real harm to the public relations protected by the right. Regulations of the legislation of the Republic of Kazakhstan, providing equal protection of the property right, both the organizations, and citizens, establish different measures of responsibility for identical offenses, considering the importance of stolen property for the owner.

In the case under consideration, the legislator determined for the illegal acts directed against property of physical persons, more severe looking of responsibility - criminal that he is additional guarantee of protection of the property right of man and citizen. It is also necessary to consider that the considered regulations differentiate responsibility not on patterns of ownership (state or private), and on owners (citizens or the organizations). The organizations can be created as based on the state, and private property. Therefore, the legislator did not break the constitutional principle of equal protection of the state-owned and private property.

The constitutional principle underlain in Item 1 of article 6 of the Constitution of the Republic: "are recognized and are similarly protected the state-owned and private property", in relation to this address it is necessary to understand so that their legal protection is obligatory. Different measures of responsibility for infringement of alien property can be established by the law.

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