NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of May 28, 2007 No. 5

About official interpretation of Item 3 of Article 26 and Item 1 of article 39 of the Constitution of the Republic of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Rogov I. I., members of council of Abishev H. A., Baltabayeva K. Zh., Belorukova N. V., Bychkova of Page F., Nurmagambetova A.M., Stamkulova U. M. with participation:

representatives of the subject of the address - deputies of the Majilis of Parliament of the Republic of Kazakhstan of Abishev B. A., Dzhilkishiyeva N. A., Eleubayeva U. B., Utegenova A. T.;

the representative of the Senate of Parliament of the Republic of Kazakhstan - the deputy of the Senate of Parliament of the Republic of Kazakhstan Aytakhanov K. A.;

the representative of the Government of the Republic of Kazakhstan - the vice-Minister of Justice of the Republic of Kazakhstan Nugmanov S. P.;

the representative of the Supreme Court of the Republic of Kazakhstan - the judge of the Supreme Court of the Republic of Kazakhstan Borisov V. M.;

representative of the Prosecutor General's Office of the Republic Kazakhstannachalnika Departamenta on supervision of legality of activities of state bodies of the Prosecutor General's Office of the Republic of Kazakhstan Kravchenko A. N.;

Commissioner for Human Rights in the Republic of Kazakhstan Baykadamov B. K.;

the representative of the Agency of the Republic of Kazakhstan on management of land resources - the vice-chairman of the Agency of the Republic of Kazakhstan on management of land resources Sizov A. P.;

chief executive of Public fund "Charter for Human Rights" Turmagambetova Zh. U.

considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of Article 26 and Item 1 of article 39 of the Constitution of the Republic of Kazakhstan.

Having researched materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional Council Stamkulov U. M., speeches of representatives of the subject of the address and participants of meeting, and also having studied the expert opinion - the doctor of jurisprudence, the leading researcher of Research institution of private law in case of the Kazakh humanitarian and legal university Ilyasova K. M., the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of Article 26 and Item 1 of article 39 of the Constitution of the Republic of Kazakhstan arrived on April 17, 2007.

The subject of the address asks to answer the following questions: "-what is understood as "exceptional cases" in the context of Item 3 of article 26 of the Constitution and by what signs they shall be characterized, in view of the legal line item of the Constitutional Council stated in the resolution of July 1, 2005 that for the democratic, secular, constitutional and social state the supreme values are the person, his life, the rights and freedoms and that there is for the state of more important task, than no care of the person, its material welfare?

- whether carry the limits of restriction of rights and freedoms of man and citizen stated in Item 1 of Article 39 to the Constitution the exhaustive nature determining contents of the laws regarding exceptional cases for property compulsory acquisition for the state needs?

- whether regulations of Item 3 of Article 26 and Item 1 of article 39 of the Constitution are legal obstacle for establishment in the Land code of the Republic of Kazakhstan of each of exceptional cases for compulsory acquisition of the parcel of land for the state needs:

1) international obligation;

2) provision of lands for needs of defense, especially protected natural territories, improving, recreational and historical and cultural appointment;

3) detection and mining of minerals (except popular);

4) construction of roads, power lines, communication lines, bulk distribution lines, engineering and communication networks public of settlements, and also other objects having the state value in the absence of other options of possible placement of these objects;

5) demolition of the hazardous and shabby dwelling threatening with collapse (collapse);

6) execution of master plans of the cities and other settlements".

During the meeting of the Constitutional Council representatives of the subject of the address according to the subitem 4) of Item 2 of article 21 of the Constitutional Law of the Republic of Kazakhstan of December 29, 1995 declared to No. 2737 the oral petition with request "the Constitutional Council of the Republic of Kazakhstan" to explain: whether execution of master plans of the cities and other settlements belongs to exceptional cases, stipulated in Item 3 articles 26 of the Constitution of the Republic of Kazakhstan?

Having analyzed regulations of the Constitution of the Republic of Kazakhstan and materials according to the considered address, the Constitutional Council proceeds from the following.

1. Consideration of Parliament of the Republic of Kazakhstan of the bill of the Republic of Kazakhstan by the Majilis "About modification and amendments in the Land code of the Republic of Kazakhstan", the list of exceptional cases of property compulsory acquisition providing establishment gave to the state needs rise for the appeal to the Constitutional Council. In this regard deputies believe necessary to determine nature of exceptional cases of property compulsory acquisition for the state needs established by the law and also limits of restriction of the rights of the owner and land user.

Competence of the Constitutional Council does not include interpretation of the laws and check of constitutionality of bills. Therefore the Constitutional Council considers impossible interpretation of regulations of Item 3 of Article 26 and Item 1 of article 39 of the Constitution of the deputies of exceptional cases who are rather listed in the address for compulsory acquisition of the parcel of land for the state needs as to interpretation would be subject Article 84 of the Land code of the Republic of Kazakhstan of June 20, 2003 to No. 442-II, and also regulations of this Article in the new edition stated in the bill of the Republic of Kazakhstan "About modification and amendments in the Land code of the Republic of Kazakhstan".

The constitutional Council repeatedly gave interpretation of regulations of Item 3 of Article 26, including, in interrelation with regulations of Item 1 of article 39 of the Constitution of the Republic. In resolutions of the Constitutional Council of the Republic of Kazakhstan of July 9, 2001 No. 12/2 "About constitutionality of the Law of the Republic of Kazakhstan "About introduction of unfaithfulness some legal acts of the Republic of Kazakhstan", accepted by Parliament of the Republic of Kazakhstan on June 26, 2001", of June 10, 2003 No. 8 "About compliance of the Constitution of the Republic of Kazakhstan of the Land code of the Republic of Kazakhstan" and of July 1, 2005 "About official interpretation of Item 3 of article 26 of the Constitution of the Republic of Kazakhstan" in relation to subject of the address are opened No. 4 content and sense of provisions of the specified constitutional regulations.

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