Information regarding regulatory decision of the Constitutional Court
(№ 69-RD of 16 April 2025)
The Constitutional Court of the Republic of Kazakhstan considered an appeal on verification of the conformity with the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) of the second part of paragraph 14 of article 43-1 of the Land code of the Republic of Kazakhstan of 20 June 2003 (hereinafter referred to as the Land Code). According to the specified norm, within the framework of the tender for granting the right of temporary paid land use (lease) for running a peasant or farm enterprise, agricultural production, persons participating in the tender are given an advantage in the form of additional points in case if they reside for at least 5 years in the district, city, village where the land plot is located.
After moving to another region and changing his permanent place of residence, the appellant took part in a tender for a land plot for which he had previously obtained the right to lease and continued to use it. According to the results of the tender, another person who received advantage points was recognized as the winner. The appellant challenged the results of the tender in court. Satisfaction of his lawsuit was denied with reference to the specified norm.
On appellant’s opinion, this provision of the Code limits his constitutional rights of free movement throughout the territory of the Republic of Kazakhstan and free choice of a place of residence, to freedom of entrepreneurial activity, non-discrimination on the grounds of place of residence (paragraph 1 of article 21, paragraph 4 of article 26 and paragraph 2 of article 14 of the Constitution).
The Constitutional Court pointed out that the State exercises the right of ownership of land and its resources on behalf of the people, and the points distribution system provided by the Code does not prevent the realization of the constitutional rights indicated by the appellant.
At the same time, the preferential right to receive a plot of land for running a peasant or farm enterprise is granted to citizens residing in a certain area on the condition that such an enterprise is run on the basis of their personal labor participation, and if they have special agricultural knowledge and qualifications, and practical experience in agriculture.
Thus, the criterion in question and the established requirements for the implementation of the preferential right to receive a land plot by local residents are enshrined in other norms of the Code, which indicates to the State policy being pursued in order to achieve social justice, further improve of the norms of land legislation, create favorable socio-economic conditions by stimulating employment of persons residing in a certain area, and satisfying the need for pasture lands in the conditions of competition for limited natural resources.
In this regard, in the opinion of the Constitutional Court, the sublegislative normative legal act regulating the issues of organizing and conducting a tender should be clarified by bringing it into compliance with the norms of article 43-1 and the second part of paragraph 1 of article 101 of the Code.
Based on the results of the review, the Constitutional Court recognized as consistent with the Constitution the second part of paragraph 14 of article 43-1 of the Code and at the same time recommended that the Ministry of Agriculture take measures to improve the legal regulation provided by the sublegislative act, taking into account the legal positions set out in the regulatory decision of the Constitutional Court.