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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of March 29, 1999 No. 7/2

About official interpretation of Item 2 of Article 13, Item 1 of Article 14, Item 2 of article 76 of the Constitution of the Republic of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the chairman Kim Yu. A., members of council of Akuyev N. I., Busurmanova Zh. D., Ikhsanov U. K., Mamonova V. V., Temirbulatov S. G., Shopin V. D. with participation of the representative of the subject of the address - the head of department concerning the legislation and judicial system of Administration of the President of the Republic of Kazakhstan Donakov T. S.

based on the subitem 4) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan and the subitem 1) of Item 3 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 in open session the address of the President of the Republic of Kazakhstan about official interpretation of Item 2 of Article 13, of Item 1 of Article 14, of Item 2 of article 76 of the Constitution of the Republic of Kazakhstan.

Having heard the message of the speaker - the member of the Constitutional Council Shopin V. D., performance of the participant of the constitutional proizvodstvapredstavitel of the President of the Republic of Kazakhstan Donakov T. S., having studied materials of the constitutional production, the Constitutional Council established:

On March 4, 1999 in the Constitutional Council the address of the President of the Republic of Kazakhstan about official interpretation of Item 2 of Article 13, of Item 1 of Article 14, of Item 2 of article 76 of the Constitution of the Republic of Kazakhstan arrived.

In the address the question is put: whether the right of the judges of the Republic of Kazakhstan dismissed to appeal in court respectively presidential decrees of the Republic of Kazakhstan and the resolution of the Senate of Parliament of the Republic of Kazakhstan on release them from posts follows from the specified constitutional regulations.

Having studied regulations of the Constitution of the Republic of Kazakhstan, materials according to the considered address, having listened to speech of the representative of the President of the Republic of Kazakhstan, the Constitutional Council proceeds from the following.

The regulation of Item 2 of article 13 of the Constitution of the Republic of Kazakhstan "Everyone has the right to judicial protection of the rights and freedoms" means the right of any man and citizen to take a legal action behind protection and recovery of the violated rights and freedoms. The realization of this right is enabled on basis and according to the procedure, established by the law. Appointment and election to position of judges is performed by the President of the Republic of Kazakhstan and the Senate of Parliament of the Republic of Kazakhstan according to the procedure, stipulated in Clause 82 Constitutions of the Republic. According to Item 1 of article 79 of the Constitution of the Republic of power of the judge can be stopped only on the bases, the established law. In Item 2 of Article 47 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About courts and the status of judges in the Republic of Kazakhstan" the special procedure for release of the judge from position providing consideration of questions of release of the judge from position respectively by the Supreme Judicial Council of the Republic of Kazakhstan and Qualification board of justice based on which recommendations about representation of the President of the Republic the Senate of Parliament and on representation of the Minister of Justice the President of the Republic make respectively the resolution and the decision is determined. The called Presidential decree of the Republic of Kazakhstan establishes also special procedure for appeal: if the judge does not agree with the decision of Qualification board of justice, he can make the complaint in the Supreme Judicial Council.

In connection with the special constitutional status of the President of the Republic of Kazakhstan - heads of state, and also the Senate - one of chambers of the Parliament of the Republic of Kazakhstan which is the supreme representative body of the republic, the Constitution of the Republic of Kazakhstan does not contain regulation about cancellation of their acts as it took place concerning acts of the Government, the ministries, other central and executive bodies of the republic, and also local representative bodies (the subitem 3) of Article 44, the subitem 7) of Article 66, Items 3 and 4 of Article 88).

The above means that in connection with special procedure for release from positions of judges of the Republic of Kazakhstan, they have no right to appeal in court respectively presidential decrees of the Republic of Kazakhstan and the resolution of the Senate of Parliament of the Republic of Kazakhstan on release them from posts.

Item 1 of article 14 of the Constitution of the Republic of Kazakhstan "All are equal before the law and court" establishes equal rights and obligations of the personality, equal protection of these rights by the state and equal responsibility of everyone to the law. The equality before the law means that in the laws the specific conditions and circumstances allowing to exercise rights and freedoms of man and citizen are determined. Persons holding judicial positions are equal before the law establishing special procedure for appointment and release them from judgeship.

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