MESSAGE OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of May 29, 2007 No. 01-4/1

About condition of the constitutional legality in the Republic of Kazakhstan

According to the subitem 6) of article 53 of the Constitution of the Republic of Kazakhstan, the annual message to Parliament of the Republic of Kazakhstan about condition of the constitutional legality in the country goes.

For the period, passed after announcement of the previous message, the Constitutional Council of the Republic of Kazakhstan accepts number of normative resolutions according to addresses of the President, Prime Minister, Parliament of the Republic and courts. The constitutional Council considers questions of ensuring constitutional rights and personal freedoms, judicial system and legal proceedings, functioning state and officially used languages.

So, the Constitutional Council in the resolution of April 14, 2006 No. 1 within official interpretation of item 4 of Article 75 of the Fundamental Law, in relation to organization of specialized court of Regional financial center of the city of Almaty, determined concepts and differentiated signs of "special" and "specialized" courts. Follows from the legal line items formulated in the resolution of Council that the specialized court of Regional financial center of the city of Almaty is not special or emergency court which organization, according to the Constitution, is not allowed.

Giving official interpretation of the subitem 7) of Article 54 of the Fundamental Law in the context of legislative regulation of procedure for the conclusion, accomplishment, change and the termination of international treaties of the Republic, the Constitutional Council in the resolution of May 18, 2006 No. 2 determined ratio between the law on ratification of the international treaty and the law on accession to the international treaty which is subject to ratification. The constitutional Council specified that the international agreements of the Republic which underwent procedures both ratifications, and accessions by adoption of the relevant law by Parliament are equivalent on the legal force and consequence in law.

In the resolution of April 18, 2007 No. 4 the Constitutional Council explained that participation of jury members in criminal trial is independent sign of determination of cognizance of criminal cases. With respect thereto variation of the petition of the person accused for consideration of its case by court based on the law with participation of jury members it is necessary to recognize as violation of the constitutional guarantees provided by the subitem 3) of Item 3 of article 77 of the Constitution. Right of the accused (defendant) for consideration of its case by court with participation of jury members treats the sphere of protection of rights and freedoms of man and citizen in criminal trial therefore it can be provided to it not only at stage of pretrial investigation, but also in court, before purpose of the main legal proceedings. As now the law limits possibility of the statement of such petition to limits of pre-judicial criminal proceeding, the Constitutional Council for ensuring additional guarantees of protection of the rights of participants of criminal procedure, and also for the purpose of more complete realization of capacity of court with participation of jury members, recommended to the Government to initiate introduction of the relevant amendments to the existing legal acts.

On representation of the West Kazakhstan regional court, the Constitutional Council are considered on compliance to the Fundamental Law of provision of part one of Article 109 of the Code of penal procedure of the Republic of Kazakhstan which, according to court, limit the right of citizens to appeal judicially of resolutions of bodies of inquiry, investigation, the prosecutor on initiation of legal proceedings. In the resolution of January 24, 2007 No. 1 the Constitutional Council specified that the proceeding decision on initiation of legal proceedings expressed in the form of the resolution is legal basis to start pretrial investigation or inquiry which can entail restriction of rights and freedoms of man and citizen in connection with the subsequent criminal proceeding. In such cases failure to provide to person of possibility of immediate judicial appeal of this proceeding decision interferes with recovery of its rights and freedoms judicially. At the same time, the Constitutional Council noted that absence in the considered Article of the Code of penal procedure of the regulation allowing person to address with the claim to the resolution on initiation of legal proceedings to court is not the basis for recognition of this article of the Code unconstitutional.

The constitutional Council before signing by the President of the Republic Constitutions two laws adopted by Parliament of the country were considered and acknowledged not corresponding.

So, the Law of the Republic of Kazakhstan "About modification and amendments in Criminal procedure and Civil procedural codes of the Republic of Kazakhstan concerning ensuring activities of the Commissioner for Human Rights", accepted by Parliament on June 8, 2006 and considered by the Constitutional Council for the address of the Head of state, allowed possibility of regulation of participation in legal proceedings of the Commissioner for Human Rights not only the law as it is offered the Constitution, but also regulatory legal acts of smaller legal force (the resolution of the Constitutional Council of July 13, 2006 to No. 4).

Checking according to the address of the Prime Minister of the Republic of Kazakhstan constitutionality of the Law of the Republic of Kazakhstan "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning legal profession", accepted by Parliament on November 30, 2006, the Constitutional Council revealed the precepts of law infringing constitutional rights of lawyers as citizens of the Republic, on freedom of work, freedom of associations and on free movement on the territory of the country. Besides, adopting the law with the amendments initiated by deputies providing increase in the public expenditures, the Parliament did not fulfill the requirement of the Constitution about need of receipt of the positive conclusion of the Government, and in the text of the law the discrepancy of editions in the Russian and Kazakh languages was established that made impossible his unambiguous understanding (the resolution of the Constitutional Council of February 14, 2007 No. 2).

For last period with the petition for explanation of some resolutions accepted by earlier Constitutional Council deputies of Parliament and the Government of the Republic addressed.

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