RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of March 17, 1997 No. 1/3

About objection of the President of Kazakhstan on the Resolution of the Constitutional Council of RK No. 1/2 of February 24, 1997

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., Temirbulatov S. G., Shopin V. D., having considered in closed meeting based on item 4 of article 73 of the Constitution of the Republic of Kazakhstan and the subitem 1) of Item 2 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" N1/2 of February 24, 1997 regarding recognition of Article 310 of the Code of civil procedure of the Kazakh SSR unconstitutional established the Objection of the President of the Republic of Kazakhstan N. A. Nazarbayev on the Resolution of the Constitutional Council of the Republic of Kazakhstan:

N1/2 of February 24, 1997 accepted according to the appeal of Mangystau regional court Articles 115 and 310 of the Code of Civil Procedure (CCP) of the Kazakh SSR are acknowledged as the resolution of the Constitutional Council of the Republic of Kazakhstan unconstitutional as the infringing rights of man and citizen affirmed in the subitem 3) of Item 3 of article 77 of the Constitution of the Republic of Kazakhstan.

In the Constitutional Council of the Republic of Kazakhstan the Objection of the President of the Republic of Kazakhstan N. A. Nazarbayev on the specified Resolution of the Constitutional Council regarding recognition of Article 310 of the Code of civil procedure of the Kazakh SSR unconstitutional arrived on March 12, 1997. In the Objection of the President of the Republic of Kazakhstan the opinion on weakness of recognition of unconstitutional Article 310 GPK of the Kazakh SSR is expressed because the regulation containing in the subitem 3) of Item 3 of article 77 of the Constitution is blanket, that is there is sending to the specific law establishing cognizance of cases. The stipulated in Article 310 GPK obligation of court of the second instance in case of repeated cancellation of the lower court decision to accept case to the production for consideration in the first instance is not violation of the Constitution as actually the law provides new jurisdiction of the case, and the consent of the parties in that case is not required, that is respect for the principle of stability of cognizance is provided.

As a result of consideration of the Objection of the President of the Republic of Kazakhstan the decision of the Constitutional Council on illegality of the Art. 310 GPK did not receive stipulated in Item 4 articles 73 of the Constitution of the Republic of Kazakhstan of the number of votes necessary for overcoming the Objection. Therefore, the Resolution of the Constitutional Council N1/2 of February 24, 1997 regarding recognition of Article 310 GPK of article 73 of the Constitution, unconstitutional according to regulation of item 4, is considered unaccepted.

Based on stated, being guided by item 4 of article 73 of the Constitution of the Republic of Kazakhstan and Item 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", the Constitutional Council DECIDES:

1. In view of not overcoming the Objection of the President of the Republic of Kazakhstan N. A. Nazarbayev of March 10, 1997 "About the appeal (idea) of Mangystau regional court of recognition of articles 115 and 310 GPK of the Kazakh SSR not corresponding Constitutions" regarding recognition of Article 310 GPK of the Kazakh SSR unconstitutional to consider the Resolution of the Constitutional Council of the Republic of Kazakhstan by N1/2 of February 24, 1997 unaccepted.

2. The resolution of the Constitutional Council of the Republic of Kazakhstan of N1/2 of February 24, 1997, except for recognitions of unconstitutional Article 310 GPK of the Kazakh SSR, comes into effect from the date of its acceptance since February 24, 1997.

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