NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of February 27, 2008 No. 2

About check of constitutionality of parts one and the fourth article 361 of the Criminal Code of Kazakhstan according to the appeal of Kapshagaysky city court of Almaty region

The constitutional council of the Republic of Kazakhstan as a part of the chairman Rogov I. I., members of council Belorukov N. V., Malinovsky V. A., Nurmagambetova A. M., Stamkulova U. M., with participation:

the representative of the Senate of Parliament of the Republic of Kazakhstan - the deputy of the Senate of Parliament of the Republic of Kazakhstan Amirov I. A.,

the representative of the Majilis of Parliament of the Republic of Kazakhstan - the deputy of the Majilis of Parliament of the Republic of Kazakhstan of the Turkish N.N.,

representatives of the Government of the Republic of Kazakhstan - the Minister of Justice of the Republic of Kazakhstan Baliyeva Z. Ya. and vice-Minister of Justice of the Republic of Kazakhstan Kustavletov D. R.,

the representative of the Supreme Court of the Republic of Kazakhstan - the chairman of board on criminal cases of the Supreme Court of the Republic of Kazakhstan Zhukenov A. T.,

representative of the Prosecutor General's Office of the Republic Kazakhstanzamestitelya of the Attorney-General of the Republic of Kazakhstan Daulbayev A. K.,

representative of the Ministry of Internal Affairs of the Republic of the Kazakhstanvitse-Minister of Internal Affairs of the Republic of Kazakhstan Shpekbayev A. Zh.,

the representative of the Commissioner for Human Rights in the Republic of Kazakhstan - the head of the National center for human rights of Kalyuzhny V.A,

the representative of the Union of lawyers of Kazakhstan - the president of the Union of lawyers of Kazakhstan Tugela A.K.,

considered in open session idea of Kapshagaysky city court of Almaty region of recognition unconstitutional parts one and the fourth article 361 of the Criminal Code of Kazakhstan.

Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional council Belorukov N. In, performances of participants of meeting and the expert - the doctor of jurisprudence, professor Matiukhin A. A., having studied expert opinions - the academician of National academy of Sciences of the Republic of Kazakhstan, the doctor of jurisprudence, professor Zimanov of Page Z. and academician of National academy of Sciences of the Republic of Kazakhstan, doctor of jurisprudence, professor Sapargaliyev G. With, and also with the conclusion of spetsialistadoktor of jurisprudence, professor Kairzhanov E. I., Constitutional council of the Republic of Kazakhstan

established:

In the Constitutional council of the Republic of Kazakhstan idea of Kapshagaysky city court of Almaty region of recognition unconstitutional parts one and the fourth article 361 of the Criminal Code of Kazakhstan providing criminal liability for making of the act of mutilation group of persons, containing in the organizations providing isolation from society for the purpose of destabilization of normal activities of organizations or hindrance of legal activities of staff of organizations and also for the same acts made by group of persons by previous concert or using violence, life-threatening and health arrived on January 28, 2008.

Follows from representation that in production of Kapshagaysky city court there is criminal case on accusation of group of persons in crime execution, the Criminal Code of Kazakhstan provided by part four of Article 361. During legal proceedings of protection by the party the petition for the appeal to the Constitutional council with idea of recognition of the unconstitutional regulation of the Criminal Code of Kazakhstan establishing criminal liability for making of the act of mutilation group of persons, containing in the organizations providing isolation from society for the purpose of destabilization of normal activities of organizations or hindrance of legal activities of staff of organizations was declared. According to authors of the petition, acts of mutilation are protection method condemned the rights and freedoms from wrongful acts of administration of organization and are caused by their right to recognition of legal personality and free expression of the opinion.

With respect thereto, the court according to article 78 of the Constitution of the Republic of Kazakhstan suspended criminal proceeding and addressed to the Constitutional council with representation "recognize the inappropriate Constitution of the Republic of Kazakhstan part one and part the fourth article 361 of the Criminal Code of Kazakhstan in relation to responsibility for making of the act of mutilation (in edition of the Law of the Republic of Kazakhstan of 26.03.07 No. 240)".

When checking constitutionality of parts one and the fourth article 361 of the Criminal Code of Kazakhstan of July 16, 1997 No. 167-I (in edition of the Law of the Republic of Kazakhstan of March 26, 2007 No. 240-III "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning criminal executive system") the Constitutional council proceeds from the following.

1. The Republic of Kazakhstan approves itself by the democratic, secular, constitutional and social state which supreme values are the person, his life of the right and freedoms (Item 1 of article 1 of the Constitution) that witnesses about priority for the state of universal values (the resolution of the Constitutional council of December 21, 2001 No. 18/2 and of July 13, 2006 No. 4) and means that the state ". to the .neena has more important task, than care of the person..." (the resolution of the Constitutional council of May 28, 2007 No. 5).

According to Items 1 and 2 of Article 12 of the Fundamental law "in the Republic of Kazakhstan human rights and freedoms according to the Constitution are recognized and guaranteed", "human rights and freedoms belong to everyone from the birth, are recognized absolute and inaliennable, determine content and application of the laws and other regulatory legal acts". Follows from content of these regulations that human rights and freedoms are guaranteed by the state in the limits set by the Constitution and regulatory legal acts corresponding to it and are fundamental in case of development and adoption of the laws and other regulatory legal acts establishing conditions and procedure of these rights and freedoms (resolutions of the Constitutional council of October 28, 1996 No. 6/2 and of April 18, 2007 No. 4).

The provisions proclaimed the Constitution connected with the attitude of the state towards the person serve as premises of the solution of all aspects of legal regulation of the status of man and citizen in the republic. Recognition by the Fundamental law of the person, its rights and freedoms the supreme value is the fundamental principle of the constitutional system forming basis constitutionally of organized society and giving everyone the possibility which is legally acknowledged and protected by the state to choose options of own behavior within the law.

Guaranteeing to the person the right to legal personality recognition, the Constitution allocates it with opportunity to protect the rights and freedoms by all methods which are not contradicting the law (Item 1 of Article 13).

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