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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of August 27, 1998 No. 6/1

About refusal in acceptance to production of idea of the Aksay judicial site of Auezovsky district court of Almaty of recognition by N441 not corresponding to the Constitution of the Republic of Kazakhstan of Item 1 of the decision of Akim of Almaty of August 22, 1997

The constitutional Council of the Republic of Kazakhstan in structure: Chairman of the Constitutional Council Kim Yu. A. and members of council: Akuyeva N. I., Ikhsanova U. K., Temirbulatova S. G. and Shopin V. D., having considered in open session the address of the Aksay judicial site of Auezovsky district court of Almaty about recognition of Item 1 of the decision of Akim of Almaty of N441 of August 22, 1997 not corresponding to the Constitution of the Republic of Kazakhstan, established:

In the Constitutional Council of the Republic of Kazakhstan the address (idea) of the Aksay judicial site of Auezovsky district court of Almaty of recognition of Item 1 of the decision of Akim of Almaty of N441 of August 22, 1997 not corresponding to the Constitution of the Republic of Kazakhstan arrived. Three civil cases combined in one, determination about suspension of their consideration and also the disputed Akim's decision of Almaty of August 22, 1997 are attached to representation.

Having heard the message of the member of the Constitutional Council Ikhsanov U. K. and having studied the available materials, the Constitutional Council believes that representation of the Aksay judicial site of Auezovsky district court of Almaty cannot be accepted to production of the Constitutional Council for the following bases. According to article 78 of the Constitution of the Republic of Kazakhstan if the court sees that the law or other regulatory legal act which is subject to application infringes at the rights and freedoms of man and citizen affirmed by the Constitution, it shall suspend proceeedings and address to the Constitutional Council with idea of recognition of this act unconstitutional. The idea of recognition of Item 1 of the decision of Akim of Almaty N441 of August 22, 1997 unconstitutional motivates the Aksay judicial site of Auezovsky district court of Almaty with the fact that the mentioned decision as it is told in representation, "deprives of constitutional right of the owner to evict from temporary residents - the lessees occupied not based on employment relationships, and legitimizes illegal acquisition of housing". From the photocopy of the decision of Akim of Almaty attached to representation of the Aksay judicial site of August 22, 1997 it is visible that is determined by Item 1 of this decision that "the legal entities of non-state pattern of ownership having the residential buildings put into operation in maintaining as hostels have the right to donate to citizens on the property right occupied by them rooms upon permanent residence". It means that the provided precept of law which constitutionality in representation of the Aksay judicial site is called in question affects the rights and interests of the legal entities who are owners of the residential buildings put into operation as hostels.

Meanwhile, according to article 78 of the Constitution of the Republic of Kazakhstan indispensable condition for the appeal of courts to the Constitutional Council is infringement by the disputed law or other regulatory legal act of the rights and freedoms of man and citizen affirmed by the Constitution. Check of constitutionality of other acts which came into legal force, except infringing rights and freedoms of man and citizen, is not subordinated to the Constitutional Council.

Under the specified circumstances consideration of idea of the Aksay judicial site of Auezovsky district court of Almaty of recognition of Item 1 of the decision of Akim of Almaty of N441 of August 22, 1997 inappropriate the Constitution of the Republic of Kazakhstan is not included into competence of the Constitutional Council.

Based on stated, being guided by the subitem 2) of Article 25 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan" the Constitutional Council decides:

1. Refuse acceptance to the constitutional production of idea of the Aksay judicial site of Auezovsky district court of Almaty of recognition of Item 1 of the decision of Akim of Almaty to N441 of August 22, 1997 not corresponding to the Constitution of the Republic of Kazakhstan in view of the fact that the subject of the address does not enter competence of the Constitutional Council.

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.

3. Representation with the materials attached to it to return the Aksay judicial site of Auezovsky district court of Almaty.

 

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