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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of June 16, 2000 No. 6/2

About official interpretation of Item 3 of article 26 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 the representative of the subject of the address - the deputy of Parliament of the Republic of Kazakhstan Daulbayev A. K. - considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of article 26 of the Constitution of the Republic of Kazakhstan.

Having studied the available materials, having heard the speaker - the member of the Constitutional Council Kotov A. K., established speech of the representative of the subject of the address, the Constitutional Council of the Republic of Kazakhstan:

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 3 of article 26 of the Constitution of the Republic of Kazakhstan, in relation to legal relationship on recovery by enforcement of property (money) collected extrajudicially by state bodies in the form of penalty arrived on May 17, 2000.

In case of interpretation of Item 3 of article 26 of the Constitution of the Republic of Kazakhstan the Constitutional Council proceeds from the following.

According to the Constitution the property in the Republic of Kazakhstan is guaranteed by the law. It means that deprivation someone its property differently as by a court decision can take place only in the cases provided by the law. The property right is not absolute as its restriction on the basis of Item 3 of article 39 of the Constitution and the relevant standards of the civil, penal or administrative legislation is allowed. That is restriction of specific property right in the cases provided by the laws is lawful both in the civil relations, and in the public sphere.

It is possible, for example, or according to the procedure of confiscation in the form of punishment on court for committed offense, or according to the procedure of requisition for the state needs, for example, in cases of natural disaster, other emergency with subsequent equivalent compensation.

The bases, conditions and procedure for confiscation or requisition are determined in Articles 249, 253 and 254 Civil codes of the Republic of Kazakhstan. Besides, in Article 249 of RK Group forced withdrawal at the owner of property is provided in cases of the address of claim to property on owner liabilities; property compulsory acquisition which owing to legal acts cannot belong to this person (for example, objects of economic smuggling; the objects withdrawn from civil circulation, etc.).

Based on Item 1 of Article 249 of RK Group by legal acts other cases of the termination of the property right to property, including on its such type as money (Item 2 of Article 115 of RK Group) can be also provided. The administrative penalty should be considered as the cash collection imposed for making of administrative offense in the cases and limits provided by the legislation on responsibility for administrative offenses.

The penalty is collected in the income of the government budget in case of guarantees of judicial control in cases of appeal of the decision on imposing of administrative punishment in the form of penalty in court. Appeal of the decision stops its execution. According to Item 2 of article 13 of the Constitution everyone has the right to judicial protection of the rights and freedoms. After adjudication, in case of appeal by the guilty subject of actions of bodies, authorized to impose penalties administratively, the forced termination of the right to property, that is on the fine size established by the law, is subject to recovery by enforcement.

The decision of the state bodies or officials having the right to impose administrative punishments, including in the form of penalty can have final nature only if the subject, property (money) of which is withdrawn in the form of penalty does not appeal them in court in time and according to the procedure, the legislations on the administrative responsibility guaranteed by procedural rules. The form of voluntary payment of penalty by the subject of offense does not attract change of the legal nature of cash collection (penalty) as measures of administrative coercion.

Therefore, the constitutional regulations that nobody can be deprived of the property, differently as by a court decision do not assume in all cases of the binding preliminary judgment on imposing of penalty for committed administrative offense.

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