NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of January 15, 2016 No. 1

About right of access to justice and competences of the Supreme Court of the Republic of Kazakhstan on review of court resolutions

Noting need of explanation of the questions arising in practice of application of the legislation on access to justice and competences of the Supreme Court of the Republic of Kazakhstan (further - the Supreme Court) on review of court resolutions and by results of studying of court practice, the plenary session of the Supreme Court

decides:

1. In case of realization of the constitutional principle about the right of everyone to judicial protection of the rights and freedoms it is necessary to recognize explanations of resolutions of the Constitutional Council of the Republic of Kazakhstan (further - the Constitutional Council) of March 29, 1999 No. 7/2 and of December 1, 2003 No. 12 that:

the regulation of Item 2 of article 13 of the Constitution of the Republic of Kazakhstan (further - the Constitution) means the right of any man and citizen to take a legal action behind protection and recovery of the violated rights and freedoms, with realization of this right on basis and according to the procedure, established by the law;

the principle of equality before the law guaranteed by Item 1 of article 14 of the Constitution means that in the laws the specific conditions and circumstances allowing to exercise rights and freedoms of man and citizen are determined;

the right to judicial protection is the constitutional guarantee of rights and freedoms of man and citizen which belongs to the citizen of the Republic of Kazakhstan, the foreigner and the stateless person.

2. Item 3 of article 4 of the Constitution determines that the international agreements ratified by the Republic are law in force component, have priority before the laws and are applied directly, except cases when follows from the international treaty that its application requires the publication of the law. In this regard in case of application of the legislation of the Republic of Kazakhstan regulating the right to access to justice or judicial protection it is necessary to consider the following universally recognized norms and the principles of international law:

each person has the right to effective recovery in the rights by competent domestic courts in cases of violation of its basic rights provided to it by the constitution or the law (Article 8 of the Universal Declaration of Human Rights, is accepted by the resolution 217 A (III) of the United Nations General Assembly of December 10, 1948);

all persons are equal before courts and tribunals, everyone has the right by consideration of any criminal charge brought to him or in case of determination of its rights and obligations in any civil process, to fair and public trial of case by the competent, independent and just trial created based on the law (Item 1 of article 14 of the International Covenant on Civil and Political Rights, New York, on December 16, 1966, is ratified by the Law of the Republic of Kazakhstan of November 28, 2005 No. 91-III, became effective in the Republic of Kazakhstan on April 24, 2006).

3. Justice according to Item 1 of article 75 of the Constitution is performed only by court. The main characteristics of legal mechanism of realization in courts of constitutional right of everyone on judicial protection are this in explanations of the Constitutional Council that:

the right of everyone to judicial protection of the rights and freedoms includes also the right to judicial appeal of actions and decisions which entailed or can entail infringement (violation) of rights and freedoms of man and citizen (resolutions of the Constitutional Council of March 29, 1999 No. 7/2 and of January 24, 2007 No. 1);

submission of the claim in itself to the decision which took legal effect does not attract its obligatory review (the resolution of the Constitutional Council of February 24, 1997 No. 1/2);

the right of everyone to judicial protection is exercised on basis and according to the procedure, established by the law (resolutions of the Constitutional Council of March 29, 1999 No. 7/2 and of November 1, 2000 No. 19/2).

4. According to article 81 of the Constitution, the Supreme Court is the supreme judicial authority on civil, criminal and other cases, cognizable local and other courts, in the cases provided by the law considers the legal cases referred to its cognizance and makes explanations concerning court practice.

Realizing the specified constitutional powers, the Supreme Court provides uniform interpretation and application of the law when implementing legal proceedings.

The uniformity of court practice which is characterized by single approaches to interpretation and application of rules of law by courts is reached not only by means of acceptance by the Supreme Court of the normative resolutions explaining questions of court practice but also as a result of review in cassation procedure for court resolutions of subordinate courts. At the same time the activities of the Supreme Court for review of court resolutions aimed at providing their legality, justification and justice have the determining value for forming of court practice.

5. Achievement of uniformity of court practice is caused by tasks of law enforcement, protection of constitutional rights and freedoms of man and citizen therefore review in cassation procedure is integrated to their high public importance, and also value for development of the right, its uniform interpretation and application.

Proceeding from the specified tasks, are determined by the procedural legislation as the bases of cassation review of court resolutions:

violation of uniformity in interpretation and application of rules of law by courts (the subitem 3) parts 6 of Article 438 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK), the subitem 3) parts six of Article 169 of the Administrative procedural Procedure Code of the Republic of Kazakhstan (further - APPK); the subitem 3) parts five of article 851 of the Code of the Republic of Kazakhstan about administrative offenses (further - the Administrative Code));

threat of heavy irreversible effects for life, human health or for economy and safety of the Republic of Kazakhstan, violation of the rights and legitimate interests of the uncertain group of people or other public interests (subitems 1), 2) parts 6 of Article 438 GPK); subitems 1), 2) parts six of article 169 APPK; subitems 1), 2) parts five of the article 851 Administrative Code;

the wrong application of the criminal and criminal procedure laws which entailed specific miscarriages of justice (part 1 of article 485 Code of Criminal Procedure);

infringement of the state or public concerns, of safety of the state, threat of heavy irreversible effects for life and human health, condemnation to lifelong imprisonment (subitems 1), 2) parts 2 of article 485 Code of Criminal Procedure).

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