Information regarding the regulatory resolution of the Constitutional Court
(№ 62 of 24 January 2025)
The Constitutional Court considered an appeal on the verification of compliance with the Constitution of the Republic of Kazakhstan:
The grounds for the appeal were as follows.
In connection with the limiting age (16 March 2023) of her military service, the applicant applied to the commander of the military unit on 2 February and 16 March 2023 with reports for dismissal on the grounds of length of service.
On the basis of the ruling on the qualification of the suspect's act received against her on 10 March 2023, she was placed at the disposal of the unit commander, and after the entry of the guilty verdict into legal force, she was dismissed for negative reasons. During the period of being at the disposal of the unit commander, she was not paid her allowance.
In the applicant's view, the said norms infringe her constitutional rights to receive pension payments for length of service and monetary allowance (salary) while at the disposal of the unit commander.
Having studied all the materials and legislation, the Constitutional Court stated that, according to the Law, extension of the term of military service of a serviceman who has reached the age limit is possible only upon his report. Without the serviceman's will, an increase in the age limit for military service is permissible only in periods of mobilisation, martial law or wartime (paragraphs 2 and 3 of Article 25 of the Act). The Law itself does not provide for other grounds for increasing the age limit for military service and extending the period of military service.
Being at the disposal of a commander (superior) in connection with the issuance of a ruling on the qualification of the suspect's act until the final judgement on the criminal case is rendered concerns only a serviceman not in a military position. At the same time, as the Constitutional Court emphasised, the legislator did not establish this provision as a basis for increasing the limiting age of a serviceman's military service or extending the term of military service.
Based on these findings and in order to clarify the legal meaning, the Constitutional Court gave a normative and legal interpretation of the norm of the Law, which is in line with the Constitution.
Regarding the restriction at the level of an order on the payment of allowances to servicemen during periods of military service in non-military positions, the Constitutional Court noted that the Law does not provide for such a restriction. Its establishment at the subordinate level does not comply with the Constitution, which provides for the right to remuneration for labour, guarantees of minimum wages, pensions, social security on legitimate grounds and limitations of rights only by laws.
Thus, following the verification, the Constitutional Court ruled that the second part of paragraph 26 and paragraph 30 of the Rules for the Payment of Monetary Allowances approved by the Order of the Minister of Defence are not in conformity with the Constitution.