of January 24, 2025 No. 62-NP
About consideration on compliance of the Constitution of the Republic of Kazakhstan of the subitem 3) Item 5 of article 21 of the Law of the Republic of Kazakhstan of February 16, 2012 "About military service and the status of the military personnel", Item 64 of Rules of passing of military service in the Armed Forces, other troops and military forming of the Republic of Kazakhstan approved by the Presidential decree of the Republic of Kazakhstan of May 25, 2006 No. 124, of part two of Item 26 and Item 30 of Rules of payment of cash allowance, benefits and other payments to the military personnel of the Armed Forces of the Republic of Kazakhstan approved by the order of the Minister of Defence of the Republic of Kazakhstan of June 2, 2017 No. 255
NAME OF THE REPUBLIC OF KAZAKHSTAN
Constitutional court of the Republic of Kazakhstan as a part of the chairman - the vice-chairman Nurmukhanov B. M., Eskendirov A. K. judges., Zhakipbayeva K. T., Zhatkanbayeva A. E., Mussina K. S., Ongarbayeva E. A., Podoprigora R. A., Sarsembayeva E. Zh. and Udartseva of Page F., with participation:
subject of the address Asarbekova R. Zh. and her representative - the lawyer Kyrykbayev E. D.,
representatives:
The Ministries of Defence of the Republic of Kazakhstan - the deputy chief of Legal department Zhaparov N. T.,
Committee of homeland security of the Republic of Kazakhstan - the vice-chairman Naymantayev A. T.,
The Ministries of Internal Affairs of the Republic of Kazakhstan - the first deputy Glavnokomanduyushchego National guard - the chief of General staff Aktanov K. M.,
The Ministries of Justice of the Republic of Kazakhstan - the director of the department of the legislation Suleymenov D. A.,
The Prosecutor General's Office of the Republic of Kazakhstan - the adviser to the Attorney-General Adamov T. B.,
The office of the Majilis of Parliament of the Republic of Kazakhstan - the manager of the sector of Department of the legislation Kulyyasova A. T.,
The office of the Senate of Parliament of the Republic of Kazakhstan - the assistant manager Department of the legislation of Sartayeva N. A.,
considered in open session the address about check on compliance of the Constitution of the Republic of Kazakhstan of the subitem 3) of Item 5 of article 21 of the Law of the Republic of Kazakhstan of February 16, 2012 "About military service and the status of the military personnel" (further - the Law "About Military Service and the Status of the Military Personnel"), Item 64 of Rules of passing of military service in the Armed Forces, other troops and military forming of the Republic of Kazakhstan approved by the Presidential decree of the Republic of Kazakhstan of May 25, 2006 No. 124 (further - Rules of passing of military service), parts two of Item 26 and Item 30 of Rules of payment of cash allowance, benefits and other payments to the military personnel of the Armed Forces of the Republic of Kazakhstan approved by the order of the Minister of Defence of the Republic of Kazakhstan of June 2, 2017 No. 255, No. 15313 registered in the Ministry of Justice of the Republic of Kazakhstan on July 5, 2017 (further - Rules of payment of cash allowance).
Having heard the speaker - the judge of the Constitutional Court of the Republic of Kazakhstan Zhakipbayev K. T. and participants of meeting, having studied materials of the constitutional production and having analyzed regulations of 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 of the Constitution of the Republic of Kazakhstan (further - the Constitution, the Fundamental Law) the subitem 3) of Item 5 of article 21 of the Law "About Military Service and the Status of the Military Personnel", Item 64 of Rules of passing of military service, part two of Item 26 and Item 30 of Rules of payment of cash allowance arrived.
From the address and the materials provided to it follows that the subject of the address addressed the commander of body with official reports about superannuation before age approach of limit of condition on military service twice. However on reaching the specified age she was not dismissed from military service.
Based on the subitem 3) of Item 5 of article 21 of the Law "About Military Service and the Status of the Military Personnel" the subject of the address was enlisted in the order of the commander of part in connection with pronouncement concerning it of the resolution on qualification of act of the suspect and after the introduction of conviction in legal force is dismissed for negative motives. For the period stays at the disposal of the commander of part the cash allowance based on part two of Item 26 and Item 30 of Rules of payment of cash allowance was not paid to her.
Satisfaction of the claim for recognition illegal and cancellation of orders on transfer of the subject of the address to the order of the commander of part and about dismissal by courts it was refused.
According to the subject of the address, the considered precepts of law infringe at its constitutional rights for receipt of retirement benefits for long service and cash allowance (salary) during stay at the disposal of the commander of part.
The subitem 3) of Item 5 of article 21 of the Law "About Military Service and the Status of the Military Personnel" determines that the serviceman passes military service not on military positions in case of stay at the disposal of the commander (chief) in connection with removal concerning the serviceman of the resolution on qualification of act of the suspect or application of measure of restraint on criminal case about crime - before removal of the final decision on criminal case.
According to Item 64 of Rules of passing of military service transfer of the serviceman in the order of the commander (chief) is allowed in cases and for terms which are determined by Item 5 of article 21 of the Law "About Military Service and the Status of the Military Personnel" if other is not established by the Law of the Republic of Kazakhstan of February 13, 2012 "About special state bodies of the Republic of Kazakhstan" (further - the Law "About Special State Bodies").
Questions of payment of cash allowance for the time spent at the disposal of the commander (chief) are regulated in Rules of payment of cash allowance.
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