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According to the claim of the president of JSC Monolitstroy the Peter and Paul city court repealed on April 26, 2000 the resolution on imposing of penalty and stopped proceeedings.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.
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.
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