of July 29, 1999 No. 16/2
About compliance of the Law of the Republic of Kazakhstan "About the rare and being under the threat of disappearance animal species" Constitutions 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., Esenzhanov A., Kotov A. K., Omarkhanova K. A. and Shopina V. D. with participation of representatives:
Heads of state there is Donakova T. S., first deputy manager of state and legal department of Administration of the President of the Republic;
Parliament of the Republic of Kazakhstan: Beloglazova A. V. - member of the committee of the Senate on regional development and local self-government, Elkin K. F. - chief expert of the Office of the Majilis;
Committee of forest, fish and hunting economy of the Ministry of Agriculture of the Republic - Elyubayeva K. O., the head of department of hunting resources, considered in open session the address of the President of the Republic of Kazakhstan about check of constitutionality of the Law of the Republic of Kazakhstan "About the rare and being under the threat of disappearance animal species".
Having studied the available materials, having heard the message of the speaker Omarkhanov K. A., speeches of the representative of the subject of the address and the invited participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:
1. The bill "About the Rare and Being under the threat of Disappearance Animal Species" was introduced to the Majilis on September 29, 1998 by group of deputies of Parliament of the Republic. The law was adopted by Parliament on June 24, 1999 and provided for the signature to the Head of state on July 1, 1999.
According to the subitem 2) of Item 1 of article 72 of the Constitution the President of the Republic on July 19 of this year sent to the Constitutional Council the appeal about consideration of the above-mentioned Law regarding compliance of the Constitution of the Republic.
2. The analysis of the provisions of the law "About the rare and being under the threat of disappearance animal species" revealed several aspects to which the Constitutional Council paid attention, checking its compliance to the Constitution of the Republic.
The first - compliance of part two of article 3 of the Law to Item 1 of article 6 of the Constitution of the Republic regarding determination of owners on rare and endangered species of the animals who are in bondage or semi-free conditions.
The second - constitutionality of emergence of the property right on these animal species.
According to article 3 of the Law of the Republic of Kazakhstan "About protection, reproduction and use of fauna" all wild animals (mammals, birds, reptiles, Amphibia, fishes, and also mollusks, insects and others) living in condition of natural freedom constantly or temporarily on the land in water, the atmosphere and the soil treat fauna.
Such legal sense needs to be put in the concept "fauna" in the context of Item 3 of article 6 of the Constitution. Broader interpretation will look incorrect and will lead to the fact that the person, the citizen, and also other subject, except the state, will not be able to have in property of animals, for example, house type.
Due to stated it is represented that the property on the animals carried to the rare and being under the threat of disappearance types, containing in bondage or semi-free conditions, is not covered by legal sense of the corresponding norm of Item 3 of article 6 of the Constitution of the Republic, and, so assumes availability of both state, and private its forms.
At the same time, the part two of article 3 of the Law "About the Rare and Being under the threat of Disappearance Animal Species" determines that the animals carried to the rare and being under the threat of disappearance types, containing in bondage or semi-free conditions are property of legal entities and physical persons. However it should be noted that these animals can contain as well the state legal entities who have no the property rights and are recognized only persons of law of operational management or the right of economic maintaining (Articles 192, 196 and 202 Civil codes of the Republic (general part). According to part two of article 3 of the above-mentioned Law the state in this case cannot be the owner of the rare and being under the threat of disappearance animal species containing in bondage and semi-free conditions.
The Constitutional Council sees violation of requirements of Item 1 of article 6 of the Constitution of the Republic establishing recognition equally of the state-owned and private property, and also similarly their protection in it.
However the property right to the rare and disappearing animals who are in bondage or semi-free conditions connects the considered Law only with the fact of their content in accordance with the established procedure (Article part two 3). At the same time in the specified regulation the principle of legality as the fact of content of these animals is not legally secure basis of legal possession of property is ignored.
Thus, the Constitutional Council of the Republic of Kazakhstan considers that the Law of the Republic of Kazakhstan "About the rare and being under the threat of disappearance animal species" contradicts requirements of Items 1 and 2 of article 6 of the Constitution of the Republic.
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