Information regarding the regulatory resolution of the Constitutional Court
(№ 27 of 31 August 2023)
The Constitutional Court considered a citizen's appeal to check the constitutionality of subparagraph 11) of paragraph 2 of Article 38 of the Law ‘On Military Service and Status of Military Personnel’ (hereinafter - the Law on Military Service) and subparagraph 9) of paragraph 2 of Article 6 of the Law of the Republic of Kazakhstan ‘On Law Enforcement Service’ (hereinafter - the Law on Law Enforcement Service).
According to these articles, a person dismissed for negative reasons is not accepted for military service under a contract, as well as for law enforcement service.
The applicant was dismissed from military service in 2013 for absence from duty without a valid excuse for three or more consecutive hours. The subject of the appeal believes that these norms deprive him of his right to access to military and law enforcement service for life.
The Constitutional Court considers that any legislative restrictions on human rights and freedoms must be adequate, legitimately justified for the purpose and meet the requirements of fairness, proportionality and commensurability. Early termination of military service for negative reasons is also associated with deprivation of social and other guarantees and entails serious general legal consequences; therefore, the grounds for such dismissal of a serviceman should not be any, but substantial violations of the law, clearly indicating the person's non-compliance with the requirements of military service. Absence from duty without a valid excuse for three or more consecutive hours in one working day, unlike military service and service in special State bodies, is not recognised as a negative motive and, accordingly, it does not prevent the taking up of positions in the law enforcement service or entry into military service.
The Constitutional Court found subparagraph (11) of paragraph 2 of Article 38 of the Military Service Act and subparagraph (9) of paragraph 2 of Article 6 of the Law on Law Enforcement Service to be unconstitutional as regards the establishment of an indefinite ban on entry into military and law enforcement service of persons dismissed from military service for absence from service without a valid excuse for three or more consecutive hours, in connection with the lack of proportionality of this legal restriction and recommended the Government to submit a draft law to the Mazhilis of Parliament no later than six months to bring the legislation in line with the legal positions of the Constitutional Court.