Information regarding the regulatory resolution of the Constitutional Court
(№ 41 of 19 April 2024)
The Constitutional Court considered the appeal of the Prosecutor General on the official interpretation of paragraph 1 of Article 25 and paragraph 3 of Article 26 of the Constitution of the Republic of Kazakhstan.
The appeal of the Prosecutor General was related to the fact that amendments and additions were made to paragraph 1 of Article 252 of the Code of Civil Procedure and to paragraph 8 of Article 55 of the Act of 2 April 2010 «On Enforcement Proceedings and the Status of Court Enforcement Officers», which imposed on the Prosecutor General a duty to authorise orders of bailiffs to take enforcement actions, including depriving citizens of their homes, which the bailiff could foreclose on if there was insufficient other property to cover the debtor's debts, even though this was not specifically considered by the court.
In the opinion of the subject of the appeal, the introduced procedure of compulsory foreclosure of property with the sanction of a prosecutor allows for the possibility of depriving a natural person of his home and a business entity of its property without a judicial act, which contradicts the provisions of paragraph 1 of Article 25 and paragraph 3 of Article 26 of the Constitution.
The Constitutional Court considers that the Constitution guarantees the general right of everyone to judicial protection of their rights and freedoms, including judicial protection of the right to property, possessions and home. The procedure of approval by the prosecutor of decisions (actions) of a court bailiff should be considered as one of the mechanisms for the protection of the rights and legitimate interests of a person and a citizen in enforcement proceedings. Decisions in enforcement proceedings related to the deprivation of citizens of their homes without their consent must necessarily be taken by a court. The said constitutional power of the court in deciding the issue of deprivation of citizens' housing cannot be transferred to other bodies and officials, including the procurator. The rights of family members living with him, including minors, must be taken into account when a citizen is deprived of his home, especially his only home. In order to maintain the balance of rights and obligations of the participants of legal relations, it is advisable to provide in the Law for a minimum standard of living space, which remains with the debtor and his family members, taking into account minors, incapacitated and disabled persons living with him, when the only dwelling is seized by a court order by a bailiff to cover the debt to creditors.
The Constitutional Court came to the conclusion that the rule contained in paragraph 1 of Article 25 of the Constitution stating that ‘deprivation of housing shall not be permitted except by court decision’, taking into account the constitutional norms on housing, property and ownership, and other human rights and freedoms, must be understood literally. A person may be deprived of his or her home only by a court decision. The authorisation by the prosecutor of a procedure for forced foreclosure of a home does not cancel a court decision, does not replace it and is not equivalent to it.
Regarding paragraph 3 of Article 26 of the Constitution, which provides that ‘no one may be deprived of his property except by court decision’, should be understood as an important constitutional guarantee of the right to property, since deprivation of property in all disputed cases may be made on the basis of a prior court decision or by other means provided for by law, with the possibility of subsequent judicial control over the legality of the alienation of property.
The Constitutional Court recommended to consider issues to improve the legal regulation of the procedure for deprivation of housing.