of October 11, 2000 No. 18/2
About official interpretation of Item 3 of article 4 of the Constitution of the Republic 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 representatives:
the subject of the address - the vice-Minister of Justice of the Republic of Kazakhstan Kotlov A. N.,
Parliament of the Republic of Kazakhstan - Zhumabayev E. Zh. deputies. and Kaliula Zh.,
The Ministries of Justice of the Republic - directors of the department of international law and the protocol of Kalyuzhny VA.,
The Ministries of Foreign Affairs of the Republic - the head of department of international legal problems of contractual and legal department Karashev A. B., third secretary of this department Kinzhebayeva A. K.,
considered in open session the address of the Prime Minister of the Republic of Kazakhstan about official interpretation of Item 3 of article 4 of the Constitution of the Republic of Kazakhstan.
Having studied the provided materials, having heard the speaker Busurmanov Zh. D., the representative of the subject of the address and other participants of meeting, and also having studied the conclusion of the independent specialist in the field of international law, Candidate of Law Sciences Kulzhabayeva Zh. O., the Constitutional Council of the Republic of Kazakhstan established:
1. In the Constitutional Council of the Republic of Kazakhstan the address of the Prime Minister of the Republic about official interpretation of Item 3 of article 4 of the Constitution of the Republic of Kazakhstan arrived on September 11, 2000.
In the address it is specified that Item 3 of article 4 of the Constitution of the Republic of Kazakhstan of August 30, 1995 establishes priority of the international treaties ratified by Kazakhstan before its laws. In Article 11 of the Presidential decree of the Republic of Kazakhstan, the valid law, "About procedure for the conclusion, execution and denouncement of international treaties of the Republic of Kazakhstan" of December 12, 1995 the international agreements which are subject to ratification are determined.
In this regard, as it is noted in the address, number of the international treaties which are earlier signed by the Republic of Kazakhstan establishing other rules than it is provided by the laws of Kazakhstan, entered collision with regulations of the Constitution of the Republic of 1995 and the called Presidential decree. The subject of the address asks to answer question: Whether "Have priority before the laws of the Republic of Kazakhstan the unratified international agreements signed by the Republic of Kazakhstan before adoption of the Constitution of the Republic of Kazakhstan of August 30, 1995 and which are not providing ratification as condition of their introduction in force?".
2. In case of interpretation of Item 3 of article 4 of the Constitution the Constitutional Council of the Republic of Kazakhstan proceeds from the following.
In Item 3 of article 4 of the Constitution it is determined that "the international agreements ratified by the Republic have priority before its laws". It means that the Republic of Kazakhstan expresses the consent to preferential legal force of those international treaties signed by it before the national legal system which are ratified by Parliament of the Republic by adoption of the relevant law.
Follows from sense of the given regulation of the Constitution that before the laws of the Republic only the international agreements ratified by Kazakhstan can have priority. Priority before the laws of the ratified international treaties in the territory of the Republic assume situational superiority of regulations of such contracts in cases of collisions with regulations of the laws.
Unratified international agreements have no such priority before the laws of the Republic. All international agreements signed by Kazakhstan after adoption of the Constitution of 1995, which are not subject to ratification shall be performed in that measure while they are not in conflict with the laws of the Republic. In case of collision of the party of contracts between them have opportunity according to the Presidential decree of the Republic of Kazakhstan which is valid the law, "About procedure for the conclusion, execution and denouncement of international treaties of the Republic of Kazakhstan" and also rules of international law to resolve them by conciliation procedures.
3. Some international agreements signed by the Republic of Kazakhstan before adoption of the Constitution of 1995 found priority before the laws owing to the fact that were among agreement categories which priority was provided by the Constitution of 1993. So, article 3 of the Constitution of the Republic of 1993 allowed to have priority before its laws to international legal acts of the rights and freedoms of man and citizen recognized by the Republic of Kazakhstan. These acts as they are already acknowledged as Kazakhstan, have equal legal force with international treaties of the Republic which were ratified after adoption of the Constitution of 1995.
Besides, the priority of international treaties before regulations of these laws is provided in the separate laws of the Republic. In particular, in Item 8 of Article 3 of the Civil code of the Republic of Kazakhstan (general part) accepted by the Supreme Council of the Republic of Kazakhstan on December 27, 1994 it is fixed: "If the international treaty which participant is the Republic of Kazakhstan establishes other rules, than those which contain in the civil legislation of the Republic of Kazakhstan are applied rules of the specified agreement...".
Similar regulations found fixing in the laws of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget" (Item 3 of Article 1), "About customs affairs in the Republic of Kazakhstan" (Article 6), accepted to the introduction in operation of the Constitution of 1995. These regulations did not contradict the Constitution of 1993. They remain in force and after adoption of the Constitution of 1995 as the specified legal acts were not exposed to cancellation by Parliament of the Republic of Kazakhstan and continue to be effective after entry into force of the Constitution of 1995.
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