NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of December 7, 2011 No. 5

About check of constitutionality of Item 1 of article 44 of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310-III "About state registration of the rights to real estate" according to the appeal of district court No. 2 of Kazybekbiysky district of the city of Karaganda of the Karaganda region

The constitutional council of the Republic of Kazakhstan as a part of the chairman Rogov I. I., members of council Belorukov N. V., Zhailganova A. N., 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 S. B. Akylbaya,

the representative of the Government of the Republic of Kazakhstan – the vice-Minister of Justice of the Republic of Kazakhstan Amanbayev A. T.,

the representative of the Supreme Court of the Republic of Kazakhstan – the judge of the Supreme Court of the Republic of Kazakhstan of JSC-kuovoy G. B.,

the representative of the Prosecutor General's Office of the Republic of Kazakhstan – the deputy attorney general of the Republic of Kazakhstan Sekishev A. A.

considered in open session idea of district court No. 2 of Kazybekbiysky district of the city of Karaganda of the Karaganda region of recognition unconstitutional Item 1 of article 44 of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310-III "About state registration of the rights to real estate".

Having studied materials of the constitutional production, having heard the message of the speaker – the member of the Constitutional council Stamkulov U. M., performance of participants of meeting, having studied expert opinions: academician of National academy of Sciences of the Republic of Kazakhstan, doctor of jurisprudence, professor, director of Nauchnoissledovatelsky institute of private law of the Kazakh humanitarian and legal university Suleymenov M. K. and the doctor of jurisprudence, the head of the department of civil process and labor right of law department of Eurasian national university of L. N. Gumileva Alenova M. A., Constitutional council of the Republic of Kazakhstan

established:

In the Constitutional council of the Republic of Kazakhstan idea of district court No. 2 of Kazybekbiysky district of the city of Karaganda of the Karaganda region of recognition unconstitutional Item 1 of article 44 of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310-III "About state registration of the rights to real estate" on November 16, 2011 arrived.

Follows from representation that in production of district court No. 2 of Kazybekbiysky district of the city of Karaganda of the Karaganda region (further – court) there is civil case in Onayev Zh. K. claim. to department of justice across the Karaganda region. The refusal of registering body in state registration of the right to share in the apartment in connection with availability of encumbrances (pledge and arrest) which exclude state registration of the right or other subject to state registration, according to the subitem 4) of Item 1 of article 31 of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310-III "About state registration of the rights to real estate" became the basis for appeal to the court.

Having researched materials of civil case and having heard explanations of the parties, the court saw "infringement of the rights of man and citizen affirmed by the Constitution of the Republic of Kazakhstan, and also contradiction of Item 1 of article 44 of the Law of the Republic of Kazakhstan of July 26, 2007 No. 310-III "About state registration of the rights to real estate to" Item 3 of article 76 of the Constitution of the Republic of Kazakhstan".

In the representation the court specified that "application of article 44 of the Law calls into question finality, imperativeness and all-obligation of court resolutions as the main form of protection of constitutional rights and obligations of man and citizen as allows registering bodies not to register emergence of the rights to real estate established by court resolutions".

With respect thereto the court according to article 78 of the Constitution suspended production on civil case and No. 310-III "About state registration of the rights to real estate" addressed to the Constitutional council with idea of recognition unconstitutional Item 1 of article 44 of the Law of the Republic of Kazakhstan of July 26, 2007 (further – the Law).

When checking constitutionality of Item 1 of article 44 of the Law the Constitutional council proceeds from the following.

1. The constitution of the Republic of Kazakhstan provides that citizens of the republic can have in private property any legally acquired property (Item 1 of Article 26).

"The principles and regulations of the Constitution proclaim and fix property right guarantees at all stages of its origin, change and termination, extend to all procedures of pronouncement of relevant decisions by state bodies and officials, providing stable and forward development of society and state, firmness of rights and freedoms of man and citizen" (the normative resolution of the Constitutional council of April 23, 2008 No. 4).

In the resolution of the Constitutional council of November 3, 1999 to No. 19/2 it is also specified that for the benefit of the state the property right can be limited to the law. The property right is not absolute and can be limited both in the field of the civil relations, and in the public sphere (the resolution of July 1, 2005 No. 4); in the law the exhaustive list of the bases which availability does possible such restrictions (the normative resolution of August 20, 2009 to No. 5) shall be determined.

The bases and limits of ownership limitation, and also their nature are established by regulation of Item 1 of article 39 of the Constitution according to which "human rights and freedoms can be limited only to the laws and only in that measure in what it is necessary for the purpose of protection of the constitutional system, protection of public order, human rights and freedoms, health and morality of the population".

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