Information regarding the regulatory resolution of the Constitutional Court
(№ 64 of January 30, 2025)
The Constitutional Court considered a citizen's appeal to verify the constitutionality of paragraph 1 of Article 40 of the Land Code, according to which the right to use land by way of universal legal succession may be transferred only in case of inheritance by law or in case of reorganization of a legal entity. Succession to the right of land use in intestate succession is not provided for by this norm.
The applicant, who applied to the Constitutional Court, was the heiress by will to the inherited property in the form of four land plots with the intended purpose of farming, left after the death of her husband, who was a member of the farm. The heiress herself was not a member of the peasant farm.
Based on the results of the consideration of lower courts' decisions regarding the dispute between her and other heirs on the issue of succession of land use rights, the Supreme Court, on the basis of the said provision of the Land Code, came to the conclusion that it was impossible to transfer land use rights to the applicant by way of universal legal succession in the case of intestate succession.
The citizen believes that the Land Code norm she challenged creates an unjustified distinction between heirs by law and by will, violating her constitutional rights and guarantees enshrined in Article 14, paragraph 2 of Article 26 and paragraph 3 of Article 39 of the Constitution (all are equal before the law and the courts; there shall be no discrimination; property, including the right to inherit, shall be guaranteed by law; in no case shall these rights and freedoms be restricted).
Based on the results of the constitutionality verification of the mentioned norm of the Land Code and analysis of the current law of the Republic of Kazakhstan, the Constitutional Court concluded that the norm of the Land Code is inconsistent with the Constitution in terms of excluding the transfer of land use rights in the case of inheritance by will.
In particular, the Constitutional Court indicated that the transfer of land use rights in intestate succession, based on the legal meaning of paragraph 3 of Article 39 of the Constitution, cannot be restricted under any circumstances. Restricting inheritance by will violates the will of the testator and discriminates against heirs, violates the constitutional principles of equality and legal certainty, and contradicts the provisions on inheritance of property enshrined in the legislation.
On the basis of the above, the Constitutional Court found the provision of paragraph 1 of Article 40 of the Land Code in the part of the words ‘by law’ to be unconstitutional and ruled that the decisions of courts and other law enforcement bodies based on this provision of the Land Code are not subject to enforcement and must be reviewed in accordance with the established procedure.