RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of March 6, 1997 No. 3

About official interpretation of Item 1 of Article 4, Item 1 of Article 14, subitem 3) Item 3 of Article 77, Item 1 of Article 79 and Item 1 of article 83 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. and members of council of Akuyev N. I., Ikhsanova U. K., Mamonova V. V., Sabikenov S. N., Temirbulatov S. G., Shopin V. D., with participation: the representative of the subject of the address - the President of the Republic of Kazakhstan N. A. Nazarbayev - the senior expert of department of questions of the legislation and judicial system of Presidential Administration Tukeev A. Zh., Minister of Justice of the Republic of Kazakhstan Kolpakov K. A., the criminal procedure legislation specialist, associate professor KAZGNA of Al-Farabi of Ereshev E. E. having considered in open session based on the subitem 4) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan, 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" the address of the President of the Republic of N. A. Nazarbaeva about official interpretation of separate regulations of the Constitution of the Republic of Kazakhstan, ESTABLISHED:

In the Constitutional Council of the Republic of Kazakhstan the address of the President of the Republic of Kazakhstan N. A. Nazarbayev about official interpretation of separate regulations of the Constitution of the Republic, with the following list of the questions offered the Constitutional Council for interpretation arrived on February 10, 1997:

1. According to Item 1 of article 4 of the Constitution of the Republic of Kazakhstan the Supreme Court has the right to issue the normative resolutions relating to the law in force in the Republic of Kazakhstan. Proceeding from it whether the Supreme Court can make explanations of separate provisions of the Constitution concerning court practice?

2. What regulatory legal acts belong to other regulatory legal acts specified in Item 1 of article 4 of the Constitution?

3. What regulations criminal procedure and civil procedural codes about cognizance it is necessary to recognize corresponding to the constitutional principle established by the subitem

Whether 3) Item 3 of the article 77 Has the right superior court, being guided by the procedural legislation to take any case in the production, cognizable to subordinate court, and also to submit the case to other court? Whether the court in cases, stipulated in Article 122 Codes of civil procedure of the Kazakh SSR can, change cognizance of cases?

4. Proceeding from the principle of equality of the parties, stipulated in Item 1 article 14 of the Constitution of the Republic whether legislative investment of prosecutors with big procedural law than other parties of process is constitutional?

5. According to Item 1 of article 83 of the Constitution the prosecutor's office protests the laws and other legal acts contradicting the Constitution and the laws of the Republic of Kazakhstan. In this regard, whether the right of prosecutor's office to protest judgments is covered by the specified power?

6. Whether can, except prosecutor's office, other state bodies to represent the interests of the state in court concerning criminal prosecution (for example, bodies of the State Investigative Committee)?

7. Whether the offer on organization of institute of jury trial will contradict requirements of Item 1 of article 79 of the Constitution in which it is determined that courts consist of regular judges?

Having heard the speaker according to this address - the member of the Constitutional Council Temirbulatov S. G. representative of the subject of the address - Tukeeva A. Zh., Minister of Justice of the Republic of Kazakhstan Kolpakov K. A. and specialist Ereshev E. E. and having discussed the provided materials of the constitutional production, the Constitutional Council of the Republic of Kazakhstan taking into account the questions raised by the subject obrashcheniyaprezidenty the Republic of Kazakhstan N. A. Nazarbayev and also competence of the Constitutional Council in case of interpretation of Item 1 of Article 4, of Item 1 of Article 14, of the subitem 3) of Item 3 of Article 77, and Item 1 of Article 79 and Item 1 of article 83 of the Constitution of the Republic of Kazakhstan, proceeds from the following:

1. According to provision of Item 1 of article 4 of the Constitution of the Republic of Kazakhstan as normative such resolution of the Supreme Court which contains explanations to courts concerning application of the legislation (its regulations) can be considered and certain rules of conduct of subjects in the field of legal proceedings are formulated. Such normative resolution which is obligatory for all courts of the republic can be issued only concerning application in court practice of regulations of the legislation, including Constitution of the Republic of Kazakhstan. At the same time the Supreme Court shall recognize that official interpretation of regulations of the Constitution, according to Article 72, is referred to competence of the Constitutional Council of the Republic of Kazakhstan.

According to Item 2 of Article 4, the Constitution of the Republic has the highest legal force, direct action and is applied in all territory of the Republic. In connection therewith the constitutional provision to courts by hearing of cases it is necessary to apply in all necessary cases the Constitution of the Republic as the act of direct action.

As Item 1 of article 4 of the Constitution carries normative resolutions of the Supreme Court to the law in force of the Republic of Kazakhstan, and Item 2 of the same Article fixes rule of the Constitution and direct action of its regulations, the Supreme Court has the right, being guided by Articles 28 and 31 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" to issue normative resolutions concerning application of regulations of the Constitution in court practice.

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