Information regarding the regulatory resolution of the Constitutional Court
(№ 14 dated 18 May 2023)
The Constitutional Court has considered a citizen's appeals concerning the constitutionality of Article 197 of the Criminal Code (hereinafter - the CC).
In accordance with the contested norm of the Criminal Code a person is held criminally liable for transportation, purchase, sale, storage of oil and oil products, as well as oil refining without documents confirming the legality of their origin.
The subject of the appeal was found guilty by the court of committing an offence under paragraph 2) of part four of Article 197 of the Criminal Code and, in his opinion, the legislation does not disclose the concept of a document confirming the legality of the origin of oil and oil products. There is no form, content, approval and issuance procedure. In addition, despite the fact that Article 197 of the Criminal Code is located in the chapter ‘Criminal offences against property’, there are no victims who are owners in criminal cases under this article.
The Constitutional Court considers that the absence of a precise and clear legislative definition of which document acts as a confirmation of the legality of the origin of oil or oil products creates prerequisites for a wide interpretation by the law enforcer and can potentially lead to the violation of the constitutional rights and freedoms of citizens. The disposition of Article 197 of the Criminal Code does not directly trace the task of criminal-law protection of the right of ownership. When committing these acts, harm to the owner or other owner of oil or oil products may not be caused. The legislator has not established a threshold for criminalisation of these acts. Criminal liability under this article may be incurred even in case of committing these acts with insignificant volume of oil or oil products.
The Constitutional Court recognised Article 197 of the CC as being in conformity with the Constitution in the following interpretation: when a person is held criminally liable under this article, documents should be understood to mean documents regulated by law, which testify to the legality of the person's performance of the acts in question and recommended that the Government submit to the Mazhilis of Parliament a draft law on amendments and additions to the Criminal Code no later than six months.