NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN

of July 23, 2024 No. 49-NP

About consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 11) Item 2 of article 91 of the Code of the Republic of Kazakhstan of December 26, 2011 "About scrap (matrimony) and family"

NAME OF THE REPUBLIC OF KAZAKHSTAN

Constitutional court of the Republic of Kazakhstan as a part of the Chairman Azimova E. A., Eskendirov A. K. judges., Zhakipbayeva K. T., Zhatkanbayeva A. E., Kydyrbayeva A. K., Mussina K. S., Nurmukhanova B. M., Ongarbayev E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation:

subject of the address of Akkozha E.M.,

representatives:

The Ministries of Justice of the Republic of Kazakhstan - the vice-minister Mersalimova L. K.,

The Ministries of Public Education of the Republic of Kazakhstan - the vice-chairman of Committee on protection of the rights of children Ovechkina Yu. R.,

The Ministries of Culture and Information of the Republic of Kazakhstan - the vice-chairman of Committee on cases of youth and family Mukhtarova N. A.,

The Prosecutor General's Office of the Republic of Kazakhstan - the adviser to the Attorney-General Adamov T. B.,

The national center for human rights - the head of department of enhancement of the legislation Beisov B. M.,

The office of the Majilis of Parliament of the Republic of Kazakhstan - the main consultant of Department of the legislation Isametov B. S.,

The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,

Judicial administration of the Republic of Kazakhstan - the main consultant of legal department Shamishev A. A.,

Public fund "ANA UY _" - the lawyer Akhmetova G. S.,

the expert - PhD, the associated law professor of Eurasian technological university Azhigulova H. K.,

considered in open session the address of Akkozha E.M. about check on compliance of the Constitution of the Republic of Kazakhstan (further - the Constitution) the subitem 11) of Item 2 of article 91 of the Code of the Republic of Kazakhstan of December 26, 2011 "About scrap (matrimony) and family" (further - the Code).

Having heard the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Kydyrbayeva A. K. and participants of meeting, having studied materials of the constitutional production, having analyzed the law in force of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan

established:

In the Constitutional Court of the Republic of Kazakhstan (further - the Constitutional Court) the address about consideration on compliance to article 14 of the Constitution of the subitem 11) of Item 2 of article 91 of the Code arrived.

Follows from contents of the address and the documents attached to it that on October 26, 2023 public institution "Department of formation of the city of Semey" with reference to the specified regulation refused to the applicant registration as person wishing to adopt the orphan child.

According to the subitem 11) of Item 2 of article 91 of the Code the males who are not consisting in the registered scrap (matrimony), except as specified the actual education of the child at least three years in connection with the death of mother or deprivation of its parent rights cannot be adoptive parents.

The subject of the address considers that the given regulation of the Code is discrimination and contradicts article 14 of the Constitution according to which nobody can be exposed to any discrimination on the basis of floor. With respect thereto he pays attention that for the women who are not consisting in the registered scrap, the similar prohibition is not established.

By consideration of question of compliance of the Constitution of the above-stated provision of article 91 of the Code the Constitutional Court proceeds from the following.

1. According to Item 1 of article 27 of the Constitution scrap and family, motherhood, paternity and the childhood are under protection of the state and are among fundamental constitutional values.

The constitutional principle of support and protection of scrap and family which is the cornerstone of legal regulation of the matrimonial relations determines priority of family education of children, care of their development and welfare. The child has the rights to education by the parents, ensuring interests, all-round development, respect of human dignity, to know the parents, on accommodation, joint with them, except as specified, when it contradicts its interests (articles 21 and 25 of the Law of the Republic of Kazakhstan of August 8, 2002 "About the child's rights in the Republic of Kazakhstan").

The Republic of Kazakhstan ratified the resolution of the Supreme Council of the Republic of Kazakhstan of June 8, 1994 the Convention on the Rights of the Child (it is accepted by the resolution No. 44/25 of the General Assembly of the United Nations (further - the UN) of November 20, 1989) (further - the Convention). The convention, recognizing that the child for complete and harmonious development of his personality needs to grow in family environment, in the atmosphere of happiness, love and understanding, determines that in all actions concerning children irrespective of, they are undertaken by the public or private institutions dealing with issues of social security, courts administrative or legislature, the first-priority attention is paid to the best ensuring interests of the child.

The child who temporarily or is constantly deprived of the family environment or who in its own best interests cannot remain in such environment has the right to special protection and the help provided by the state including to its adoption. The State Parties recognizing and (or) resolving adoption provide that the best interests of the child were considered in paramount procedure (articles 20 and 21 of the Convention).

2. Care of children and their education are the natural right and obligation of parents (Item 2 of article 27 of the Constitution). At the same time, in view of possible life situations when the child loses biological parents and becomes the orphan and also when he remains without care of parents, the legislator entered different forms of protection of the rights and interests of such children at the level of the law.

According to article 116 of the Code as such forms are provided transfer of orphan children, children without parental support, on education in family (adoption, guardianship or custody, patronage, foster home), and in the absence of such opportunity - in the organizations of all types for orphan children, children without parental support.

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