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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

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

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Kim Yu. A and members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A. E., Kotova A. K., Omarkhanova K. A. and Shopina V. D. with participation of the Chairman of the Supreme Court of the Republic of Kazakhstan Narikbayev M. S., the deputy attorney general of the Republic of Kazakhstan Ongarbayev S. O., the vice-Minister of Justice of the Republic of Kazakhstan Mami K. A., the expert Kogamov M. Ch. is doctors of jurisprudence, professor of Humanities university of D. Kunayev, according to Item 2 of article 72 of the Constitution of the Republic of Kazakhstan and the subitem 1) of item 4 of Article 17 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional Law, "About the Constitutional Council of the Republic of Kazakhstan", considered 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 in open session.

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.

The Mangystau regional court considers that the presidium of the Supreme Court shall not accept Samutina's claim as it passed the appeal term established by part two of article 461 Code of Criminal Procedure to production. However, the accused Dyadov and his defender cannot make in plenum of the Supreme Court the complaint to the illegal resolution of presidium as for categories of the cases considered by local courts on the first instance, the presidium of the Supreme Court is the last - the highest supervising authority. According to regional court, the part six of article 292 Code of Criminal Procedure providing possibility of review by plenum of the Supreme Court of resolutions of presidium of the same court on cases in the relation of persons specified in part two of article 292 Code of Criminal Procedure infringes at the right to judicial protection of other category of citizens for whom the presidium of the Supreme Court is final instance. The regional court sees infringement of the rights of citizens affirmed in Item 2 of Article 13 (the right to judicial protection of the rights and freedoms) and Item 3 of Article 39 in it (non-admission of restrictions of the rights, stipulated in Article 13) Constitutions of the Republic.

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 different 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 infringe at 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.

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