RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of July 10, 2000 No. 14/2

About idea of the North Kazakhstan regional court of recognition unconstitutional subitem 3) parts one of article 281 of the Code of the Kazakh SSR about administrative offenses

The constitutional Council of the Republic of Kazakhstan as a part of the Acting Chairman Shopin V. D., members of council Busurmanov Zh. D., Esenzhanov A., Kotov A. K. and Omarkhanova K. A. in open session considered the appeal of the North Kazakhstan regional court about compliance of the Constitution of the Republic of Kazakhstan of the subitem 3) to part one of article 281 of the Code of the Kazakh SSR about administrative offenses.

Having studied the available materials, having heard the message of speakers of Omarkhanov K. A. and Shopina V. D., the Constitutional Council of the Republic of Kazakhstan established:

1. In the Constitutional Council of the Republic of Kazakhstan idea of the North Kazakhstan regional court of recognition unconstitutional the subitem 3) of part one of article 281 of the Code of the Kazakh SSR about administrative offenses arrived on June 26, 2000 (further the Code).

Reason for the address was the civil case which is in production of the North Kazakhstan regional court according to the statement of the president of the Monolitstroy joint-stock company (JSC) for appeal of the decree of March 13, 2000 on imposing on it the administrative punishment issued by the chief state inspector of the North Kazakhstan regional management of environmental protection. According to articles 54-1 and 233 of the Code the penalty in the amount of 19875 tenges for failure to carry out of the obligatory instruction about taking measures to the correct storage and burial of source of radioactive radiation was imposed on the president of the joint-stock company.

According to the claim of the president of JSC Monolitstroy the Peter and Paul city court repealed on April 26, 2000 the resolution on imposing of penalty and stopped proceeedings. This judgment was appealed in cassation procedure by the state inspector in regional court.

Having accepted the writ of appeal, the North Kazakhstan regional court suspended proceeedings as the subitem 3) of part one of article 281 of the Code interferes with further judicial review. Having seen in this regulation violation of the rights of citizens, stipulated in Item 2 Articles 13 and Item 3 of article 39 of the Constitution of the Republic, the court addressed to the Constitutional Council about recognition its unconstitutional regarding finality of the decision of the district (city) court which is taken out according to the claim to the resolution of body (official) on imposing of administrative punishment in the form of penalty.

2. When checking constitutionality of the regulation specified in representation of the North Kazakhstan regional court, the Constitutional Council of the Republic proceeds from the following.

According to the subitem 3) of part one of article 281 of the Code the resolution on imposing of administrative punishment in the form of penalty which is taken out by the representative on that body or the official can be appealed in higher body (the higher official) or in district (city) court which decision is final.

In the subitem sense 3) parts one of Article 281 and other regulations of Chapter 22 of the Code finality of the judgment on the case of administrative offense connected with imposing of penalty means that it becomes effective and is subject to execution immediately after removal. At the same time, the interested person does not have legal opportunity to appeal this court resolution. Besides, follows from the analysis of regulations of Chapter 22 of the Code, and also Chapter 26 of the Code of civil procedure of the Republic, as the protest of the prosecutor does not attract such legal effect as obligatory verification of the taken place court decree on above-mentioned categories of cases on administrative offenses.

Thereby, the subitem regulation 3) of part one of article 281 of the Code regarding finality of decisions of district (city) court on administrative cases about imposing of penalty excludes possibility of further check of legality and their justification judicially. With respect thereto there is impossible suspension of their execution as guarantees of the subsequent judicial control and correction of miscarriage of justice.

Taking into account stated it should be noted that the above-mentioned regulation of the Code contradicts the requirement of Item 2 of article 13 of the Constitution of the Republic establishing the right of everyone to judicial protection. This constitutional right assumes protection of human rights and freedoms, the citizen both from any arbitrary behavior, and from the wrong judgments. About it the Constitutional Council in the resolution of May 5, 1999 N 8/2 "About idea of Mangystau regional court of recognition of unconstitutional part six of Article 292 of the Code of penal procedure of the Republic of Kazakhstan" noted that the constitutional right on judicial protection provides possibility of everyone to take a legal action behind protection and recovery of the violated rights and freedoms. At the same time follows from the resolution that the most effective guarantee of such protection is also the possibility of reconsideration of the case by higher degrees of jurisdiction which shall be provided with the laws of the Republic.

The researched regulation of the Code also will not be approved with requirements of Item 1 of article 14 of the Constitution about equality of all before the law and court as administrative legal proceedings, unlike criminal and civil, exclude any procedure for test other degrees of jurisdiction of legality and justification of the judgment on protest and the claim of the interested bodies and persons for the purpose of correction of miscarriages of justice.

The subitem 3) of part one of article 281 of the Code limits rights of man and citizen, stipulated in Item 2 Articles 13 and Item 1 of article 14 of the Constitution of the Republic whereas Item 3 of article 39 of the Constitution does not allow in any cases restriction of the specified constitutional rights.

This regulation of the Code contradicts also Articles 75, 76 and to Item 1 of article 83 of the Constitution of the Republic.

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