Information regarding the regulatory resolution of the Constitutional Court
(№ 22 of 14 July 2023)
The Constitutional Court of the Republic of Kazakhstan has considered the appeal of a citizen to check the constitutionality of certain provisions of paragraph 5 of Article 34 of the Constitutional Law ‘On the Judicial System and Status of Judges of the Republic of Kazakhstan’ (hereinafter - the Constitutional Law).
According to the said article, the grounds for termination of judges' powers provided for in the subparagraphs of this article shall be recognised as negative motives.
In the opinion of the subject of the appeal, whose powers as a judge were terminated on the basis of a decision of the Commission on the Quality of Justice that he was unfit for his position due to professional unsuitability, prevents him from exercising his constitutional right to freedom of labour, free choice of occupation and profession and thus entails lifelong restrictions on his rights.
The Constitutional Court considers that the legislator's attribution of the decision of the Commission for the Quality of Justice on the judge's ineligibility for office due to professional unsuitability to negative motives for the termination of a judge's powers pursues the stated objectives of assessing the professional performance of a judge and has a purely autonomous meaning. Approaches to personnel and other related issues adopted in the judiciary cannot automatically be applied in the civil service and should not be an unconditional and indefinite barrier to entry into the civil service, which is based on different principles and has its own peculiarities. Differences in approaches to the nature and consequences of certain grounds for termination of powers in different spheres leads to an imbalance in legal regulation and creates conditions for violation of constitutional rights by establishing restrictions that do not meet the principles of necessity, fairness and proportionality.
The Constitutional Court recognized paragraph 5 of Article 34 of the Constitutional Law as being in conformity with the Constitution in the interpretation that the termination of a judge's powers on such a negative motive as inappropriateness for the position held due to professional unsuitability should have legal consequences only within the framework of the Constitutional Law and a citizen dismissed from the position of a judge on this ground may exercise the constitutional right to freedom of labour in other spheres, including in the civil service. Also recommended the Government to submit to the Mazhilis of Parliament a draft law aimed at ensuring proportionality of restrictions on access to different types of public service.