RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of June 5, 1998 No. 3/2

About the appeal of Jambyl regional court "About recognition of part 2 of Article 280 and part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses not corresponding to the Constitution of the Republic of Kazakhstan"

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman of the Constitutional Council Kim Yu. A. and members of council of Akuyev N. I., Busurmanova Zh. D., Ikhsanov U. K., Mamonova V. V. and Temirbulatov S. G. with participation of the expert - the head of the department of the administrative right of the Kazakh state legal university, Candidate of Law Sciences Taranov A. A. considered on June 5, 1998 in open session the appeal of Jambyl regional court about recognition of part 2 of Article 280 and part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses not corresponding to the Constitution of the Republic of Kazakhstan.

Having heard the message of the speaker - the member of the Constitutional Council of the Republic of Kazakhstan Akuyev N. I., speech of the expert Taranov A. A. and having got acquainted with the having materials according to this address, the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan the appeal (representation) of Jambyl regional court brought by its chairman Abilkairovy M.R. according to article 78 of the Constitution of the Republic of Kazakhstan about recognition of part 2 of Article 280 and part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses not corresponding to the Constitution of the Republic of Kazakhstan arrived on May 15, 1998. Part 2 of article 280 of the Code of the Kazakh SSR about administrative offenses says that the resolution of district (city) court (judge) on imposing of administrative punishment is final and is not subject to appeal according to the procedure of production on cases on administrative offenses, except as specified, stipulated by the legislation. Part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses establishes limited circle of articles of this Code under which the judge's ruling on cases on administrative offenses can be cancelled or changed on the prosecutor's protest by the judge, and also irrespective of availability of protest of the prosecutor the chairman of superior court.

Reason for the appeal to the Constitutional Council was the administrative case which is in production of Jambyl regional court according to the procedure of supervision гр. Li R. V. under article 205-1 of the Code of the Kazakh SSR about administrative offenses. The judge's ruling of Kordaysky district court of Jambyl area of February 27, 1998 to гр. Li R. V. is applied measure of the administrative responsibility in the form of penalty with confiscation illegally of the transported goods.

Unconstitutional parts 2 of Article 280 and part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses the Jambyl regional court proves the address about recognition by the fact that the called Code regulations limiting the right of appeal and protest of the judge's ruling on the case of administrative offense deprive person brought to the administrative responsibility, opportunity to perform the right to judicial protection granted to it by article 13 of the Constitution of the Republic of Kazakhstan.

In the analysis of part 2 of Article 280 and part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses the Constitutional Council proceeds from the following. The constitution of the Republic of Kazakhstan determines that everyone has the right to judicial protection of the rights and freedoms (Item 2 of Article 13). Content of this constitutional regulation joins also the right to judicial appeal of decisions and actions which entailed violation of the law and infringement of rights and freedoms of man and citizen. At the same time the right to judicial protection is among the constitutional rights which are not subject to restriction (Item 3 of article 39 of the Constitution). The procedure and amount of implementation of the right to judicial protection is regulated by the procedural legislation.

Part 2 of article 280 of the Code of the Kazakh SSR about administrative offenses does not meet the constitutional standards according to which judicial protection of its rights and freedoms is guaranteed to everyone. Recognition of the zoning ordinance (city) court (judge) about imposing of administrative punishment final and not subject to appeal limits limits of judicial authority on cases on administrative offenses to framework of district (city) court and there do not correspond to Articles 75, 76 Constitutions of the Republic of Kazakhstan installing system and the main powers of judicial authorities.

The restriction provided in part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses in case of which the 4th judge's ruling on cases on administrative offenses can be cancelled or changed on the prosecutor's protest by the judge only under the separate, specified in this Code Articles adjusts regulation of Item 1 of article 83 of the Constitution assigning to prosecutor's office implementation of the highest supervision of exact and uniform application of the laws, decrees and other regulatory legal acts in the territory of the Republic. By the resolution of the Constitutional Council of the Republic of Kazakhstan of March 6, 1997 according to the procedure of official interpretation of regulations of the Constitution it is determined that the constitutional provision "the prosecutor's office protests the laws and other legal acts contradicting the Constitution and the laws of the Republic", includes also the right of prosecutor's office to protest decisions, sentences and other resolutions of courts on all cases.

Thus, part 2 of Article 280 and part 1 of article 288 of the Code of the Kazakh SSR about administrative offenses contradict requirements of number of regulations of the Constitution of the Republic of Kazakhstan.

Based on stated and being guided by Item 2 of article 72 of the Constitution of the Republic of Kazakhstan, Articles 33, of 37, 38 Presidential decrees of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan decided:

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