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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of October 11, 1999 No. 21/1

About refusal in acceptance to production of idea of the chairman of October district court of Karaganda of recognition unconstitutional item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan"

The constitutional Council of the Republic of Kazakhstan in structure: Chairman Yu. Kim, members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A. E., Kotova A. K., Omarkhanova K. A. and Shopina V. D., having considered in open session idea of the chairman of October district court of Karaganda of recognition not corresponding to article 33 of the Constitution of the Republic of Kazakhstan of item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan", established:

In the Constitutional Council idea of the chairman of October district court of Karaganda of recognition unconstitutional item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan" arrived on October 8, 1999.

The civil case considered on September 28, 1999 by October district court of Karaganda according to Zasukhin V. I. statement was of the address the cause. about its recovery in the voting right. During legal proceedings it was determined that district electoral commission on September 15, 1999 to Zasukhin V. I. according to item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan" it was refused registration as a candidate in deputies of the Karaganda regional Maslikhat in connection with attraction it on June 17, 1999 to the administrative responsibility. However Zasukhin V. I. provided to court the copy of the resolution of September 27, 1999 on the termination concerning its administrative production upon accountability. Having seen falling away of the circumstances limiting the right to be elected, the court recovered the voting rights of the claimant and at the same time addressed to the Constitutional Council with formulation of the question about recognition unconstitutional provisions of item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan".

The October district court of Karaganda considers that the regulation of Item 3 of article 33 of the Constitution establishes the exhaustive list of the bases limiting the voting right of citizens namely: recognition of incapacity of the citizen by court, and also its content in places of detention according to the court verdict. Because the circumstances limiting the voting right of citizens, specified in regulations of item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan" are not provided by the Constitution, the court saw infringement of rights and freedoms of man and citizen, stipulated in Article 33 Constitutions.

Having heard in open session the message of the speaker - the member of council Busurmanov Zh. D. and having considered the provided materials, the Constitutional Council of the Republic of Kazakhstan finds that this address cannot be taken cognizance on the following bases:

According to article 78 of the Constitution of the Republic if the court sees that the law restrains constitutional rights and freedom of man and citizen, then it not apply such law and, having suspended proceeedings, to address to the Constitutional Council. It means that such law becomes absolute obstacle for court in case of permission of the case connected with recovery of the violated rights and freedoms of man and citizen. In the considered case, the court did not suspend proceeedings, and passed the final decision in essence directed to satisfaction of the claim as the circumstances interfering recovery of the violated voting right of the citizen disappeared. Even on formal sign, in case of administration of law for benefit of the claimant, regulations of the Constitutional law "About Elections in the Republic of Kazakhstan" were not applied as in it there was no need. Therefore, for formulation of the question about illegality of this provision of the law there are no bases as court in case of permission of case on recovery of the voting right of Zasukhin V. I. did not apply the provision of the law about elections. Thus, the Constitutional Council believes that representation of the chairman of October district court of mountains. Karaganda about recognition inappropriate to Item 3 of article 33 of the Constitution of provision of item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan" it is pointless. In specific case, follows from content of representation of court that it puts question of giving interpretation of Constitution regulations by the Constitutional Council that is possible only in case of the address of the special subjects provided by the subitem 4) of Item 1 of article 72 of the Constitution which courts do not treat.

Based on stated and being guided by Article 25 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council", the Constitutional Council of the Republic of Kazakhstan decides:

1. To the constitutional production of idea of the chairman of October district court of the city of Karaganda of recognition not corresponding to refuse to the Constitution of item 4 of article 4 of the Constitutional law "About Elections in the Republic of Kazakhstan" acceptance.

2. According to Item 3 of article 74 of the Constitution of the Republic of Kazakhstan, the resolution becomes effective from the date of its acceptance, is obligatory in all territory of the Republic, final and to appeal is not subject taking into account case, the provided Items 2 and 3 of Article 38 of the Presidential decree of the Republic of Kazakhstan, the valid Constitutional law, "About the Constitutional Council".

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