of May 5, 1999 No. 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
Having studied the available materials, having heard the message of the speaker Omarkhanov K. A. and performances of participants of meeting, the Constitutional Council established: The Mangystau regional court with idea of recognition of unconstitutional part six of Article 292 of the Code of penal procedure of the Republic of Kazakhstan addressed to the Constitutional Council on April 6, 1999 according to article 78 of the Constitution of the Republic (further - the Code of Criminal Procedure).
Reason for the appeal of Mangystau regional court was the resolution of presidium of the Supreme Court of the Republic of Kazakhstan on criminal case concerning Utegenov and Dyadov. According to the claim of the injured Samutina T. this degree of jurisdiction on the bases worsening situation of persons accused cancelled all taken place earlier court decrees and sent case for new trial.
Taking into account stated the Mangystau regional court suspended on March 5, 1999 proceeedings and addressed to the Constitutional Council of the Republic with idea of recognition of part six of article 292 Code of Criminal Procedure not of the relevant Constitution of the Republic.
By consideration of idea of Mangystau regional court of check of the constitutional part six of article 292 Code of Criminal Procedure of the Republic of Kazakhstan the Constitutional Council proceeds from the following.
Establishing in Item 2 of article 13 human right, the citizen on judicial protection of the rights and freedoms, the Constitution of the Republic assumes possibility of everyone to take a legal action behind protection and recovery of the violated rights and freedoms. At the same time the Constitution does not determine procedure for realization of this constitutional right. 3) of Item 3 of article 77 of the Constitution follows from Article 75 and the subitem that this mechanism is established in the laws of the Republic regulating questions of organization-legal creation of judicial system and administration of law.
The subitem 3) of Item 3 of article 77 of the Constitution assumes availability of rules about cognizance of cases. Competence of various levels of courts is determined only by circle of the cases referred by the law to their maintaining. At the same time the procedural procedure for hearing of cases in all links of judicial system of the country is single and obligatory concerning all defendants and does not create any privileges for one group of persons, is equal as does not violate someone's rights to judicial protection of the rights and freedoms.
For the sentences decided by local courts, the Code of Criminal Procedure is established several steps of their review in legal concerns and exceptions of miscarriages of justice.
Consideration of criminal cases about crimes of persons specified regarding the 2nd article 292 Code of Criminal Procedure, only the Supreme Court does not contradict requirements of Item 2 of Article 13 and article 14 of the Constitution. Proceeding from features of legal status of these persons, the law establishes for them cognizance of the supreme judicial authority of the republic which does not violate the requirement of the Constitution and does not diminish the rights of other citizens. At the same time, for distribution on such categories of cases of requirements of cognizance the plenum of the Supreme Court is allocated with functions of supervisory authority.
The crimes committed by persons specified in part two of article 292 Code of Criminal Procedure constitute big public danger and encroach on more significant objects of the values protected by the law. Therefore in some cases their official capacity is the circumstance aggravating fault that also predetermines the existing cognizance of criminal cases.
Requirements of Item 1 of article 14 of the Constitution will be approved with article 75 of the Constitution of the Republic in which it is said that justice in the Republic is performed only by court by means of the established legal proceedings forms. At the same time, for the purpose of non-admission of infringement of rights and freedoms of man and citizen or creation of benefits to any category of persons, the organization of any bodies with functions and powers of courts is not allowed. And in this sense man and citizen are equal in the rights and obligations before the court which is state body, the given exclusive right of administration of law.
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