RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of November 21, 1997 No. 19

About refusal in acceptance to production of representation of the judge of Glubokovsky district court of the East Kazakhstan region "About accountability of teenagers aged from fourteen up to sixteen years for hooliganism"

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Yu. A. Kim, members of council U. K. Ikhsanov, V. V. Mamonov, S. N. Sabikenov, S. G. Temirbulatov and V. D. Shopin, having considered in open session representation of the judge of Glubokovsky district court of the East Kazakhstan region K. K. Seitov "About accountability of teenagers aged from fourteen up to sixteen years for hooliganism", having heard the member of council Temirbulatov S. G. of the speaker according to this address and having studied materials, ESTABLISHED:

In the Constitutional Council of the Republic of Kazakhstan on November 18 representation of Glubokovsky district court of the East Kazakhstan region, "About accountability of teenagers aged from fourteen up to sixteen years for hooliganism" of this year arrived. Representation is brought based on materials of the court of criminal case which is in production on minor Vasilenko G. V. accusation, on June 15, 1982 year of birth, in crime execution, the Criminal Code of the republic provided by part 2 of Article 200. Concerning minor Vasilenko G. V. the measure of restraint recognizance not to leave is chosen, and proceeedings are suspended on October 21, 1997 based on article 78 of the Constitution of the Republic of Kazakhstan. From idea of court and determination of suspension of proceeedings it is seen that minor Vasilenko G. V. on February 19, 1997 together with the condemned Atembekova A. D., and on February 24 one beat the injured Nebolzina O. P., having caused her slight injuries. The court considers that Vasilenko G. V. acts under article 200 of part 2 UK of the Kazakh SSR are qualified correctly as the intentional actions which are roughly disturbing the public peace and expressing explicit disrespect for society, differing on the content in special impudence and with causing to the victim of bodily harm and group of persons. However the court considers that in the presence in the legislation of article 175 of the Code of the Kazakh SSR on administrative offenses providing responsibility of teenagers aged from fourteen up to sixteen years for hooliganism "application of the penal statute on this case can lead to infringement of constitutional rights of the citizen Vasilenko G. V., the Constitutions provided p.1 by Art. 39, its not application infringes at the same rights of the victim - the citizen Nebolzina O. P., the Constitutions of the Republic provided by the p. 2 of Art. 13. In such cases, according to Art. 78 of the Constitution of the Republic of Kazakhstan the court shall suspend and address proceeedings to the Constitutional Council with idea of recognition of one of acts unconstitutional."

At the same time, in substantive provisions of representation the judge Seitov K. K. asks to resolve the issue "about illegality of the laws on accountability of teenagers aged from fourteen up to sixteen years for disorderly conduct and hooliganism according to Art. 175 of the Code of the Republic about administrative offenses and according to Art. 200 of h 2 Criminal Codes of Kazakhstan based on Art. 10 of h 2 Criminal Codes of Kazakhstan".

The constitutional Council considers that representation of court cannot be accepted to the constitutional production on the following bases. Representation of court on content is contradictory: its name does not correspond to the main content; in descriptive part it is stated that "application of the penal statute in one case can lead to infringement of constitutional rights of the defendant Vasilenko G. V. and its not application - infringes at the same rights of the victim", and in substantive provisions of representation the question of recognition unconstitutional and parts 2 of article 200 of the Criminal Code and article 175 of the Code of the Kazakh SSR about administrative offenses is put.

Without giving legal treatment on criminal case, the Constitutional Council at the same time believes that court, according to article 78 of the Constitution of the Republic of Kazakhstan having the right to address to the Constitutional Council with representation only if he comes to the conclusion that the specific provision of the law, subject to application on case in point, infringes the Constitutions affirmed in the relevant article at human rights and freedoms, the citizen. At the same time in representation of court articles of the Constitution to which there does not correspond the law which is subject to application or other regulatory legal act shall be called.

In representation of court it is mistakenly specified that application of the penal statute can lead to infringement of constitutional rights of the defendant Vasilenko G. V., the Constitutions of the Republic provided by part 1 of Article 39 as this constitutional regulation does not affirm any specific rights or freedoms of man and citizen.

According to 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" the Constitutional Council considers appeals of courts about recognition of the act unconstitutional 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.

Besides, representation of court is signed by the inadequate subject: according to Item 3 of Article 22 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", representation of court shall be signed by its chairman.

Owing to the stated circumstances representation of court "about accountability of teenagers aged from fourteen up to sixteen years for hooliganism" the Constitutional Council cannot be accepted to production and is considered in essence.

Based on subitem provisions 1) of the article 25, of article 33 and Item 1 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 of the Republic of Kazakhstan DECIDED:

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