RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of November 27, 1998 No. 14/2

About idea of the Supreme Court of the Republic of Kazakhstan of recognition of unconstitutional part three of article 261 of the Code of the Kazakh SSR of administrative offenses

The constitutional Council of the Republic of Kazakhstan as a part of the chairman Yu. Kim and members of council Zh. Busurmanov, U. Ikhsanov, V. Mamonov, S. Temirbulatov and V. Shopin according to Item 2 of article 72 of the Constitution of the Republic of Kazakhstan and the subitem 1) of item 4 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", having considered idea of the Supreme Court of the Republic of Kazakhstan of recognition of unconstitutional part three of article 261 of the Code of the Kazakh SSR of administrative offenses in open session, established:

The Supreme Court of the Republic of Kazakhstan with idea of recognition of unconstitutional part three of article 261 of the Code of the Kazakh SSR of administrative offenses addressed to the Constitutional Council on November 25, 1998 according to article 78 of the Constitution of the Republic.

Reason for the appeal of the Supreme Court of the republic with representation was review in the called court according to claims of lawyers of case on administrative offense to Kazhegeldin A. M., the Code of Administrative Offences made responsible under Article 188-2.

Representation is motivated that in defiance of the constitutional regulations on equality of citizens before the law and court the part three of article 261 of the Code of Administrative Offences provides that persons made responsible under Articles 52, of 148, 164 and to others shall be present surely when considering the case, and in case of evasion from appearance on challenge can be subjected to the drive.

According to the Supreme Court obligation and coercion in appearance questions in relevant organ only by separate types of offenses and only concerning individuals, and also obligation of bodies for suppression of evasion contradict the rights of man and citizen affirmed by the Constitution, obviously infringes at the rights of these persons.

Having heard the message of the speaker - the member of council Temirbulatov S. and having considered materials on representation of the Supreme Court, the Constitutional Council finds arguments of court proved and considers the following.

Item 1 of article 14 of the Constitution of the Republic of Kazakhstan establishes equality of all before the law and court. Item 2 of the same article of the Constitution says: "Nobody can be exposed to any discrimination based on origin, social, official and property status, floor, race, nationality, language, the relation to religion, beliefs, the residence or on any other circumstances."

These constitutional regulations contain the equal rights of man and citizen before the law and court irrespective of any circumstances.

Therefore, in case of involvement of person to judicial responsibility these constitutional regulations shall be implemented without any limit according to Item 3 of article 39 of the Constitution of the Republic. In case of production on legal cases also the constitutional requirement about equality of all before the law and court shall be observed.

However if in part two of article 261 of the Code of Administrative Offences the possibility of consideration of the case is provided in absence of the involved person, then the part three of the same article of the Code contains the exception of this rule saying that persons made responsible under the articles of the Code of Administrative Offences listed in this part shall be present at consideration of their case.

The Constitutional Council sees establishment of inequality before court in this regulation of the Code of Administrative Offences. Thus, the above allows to claim that the provision of the law enshrined in part three of article 261 of the Code of Administrative Offences contradicts Article 14 and Item 3 of article 39 of the Constitution of the Republic of Kazakhstan as restraining constitutional rights and freedom of man and citizen.

Based on stated and being guided by Articles 31-33 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. Part as third of article 261 of the Code of the Kazakh SSR about administrative offenses accepted on March 22, 1984 to recognize unconstitutional as infringing the rights and freedoms of man and citizen affirmed in article 14 of the Constitution of the Republic of Kazakhstan.

2. According to Item 2 of Article 39 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the laws recognized infringing the rights and freedoms of man and citizen affirmed by the Constitution and owing to this fact unconstitutional lose legal force and are not subject to application. Decision of the courts and other law-enforcement bodies, based on such law, are not subject to execution.

3. 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 the cases provided by Items 2 and 3 of Article 38 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan".

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