THE ISSUES OF IMPROVING THE MECHANISM OF REFERRAL OF CASES TO CONSTITUTIONAL COUNCIL BY ORDINARY COURTS

On March 19, 2021, the Chairman of the Constitutional Council Kairat Mami took part in the 126th online plenary session of the Venice Commission of the Council of Europe (hereinafter - the Commission).

Addressing the participants of the session, Kairat Mami said that at present, according to the initiatives of the President of Republic, Kazakhstan is carrying out extensive reforms in the political and legal sphere. Last year, a new law on assemblies was adopted, based on the notification procedure for these activities. Opposition activities have been legally regulated, the number of citizens for the creation of political parties has been halved. At least 30% of the party lists are now youth and women. It is expected that the quota for parties to enter the Parliament will be reduced from 7% to 5%.

The Commission adopted its opinion on the Concept Paper for improving the legal framework of the Constitutional Council. It includes proposals to improve the mechanism for the ordinary courts to appeal to the Council with submissions on the review of the constitutionality of laws.

The Commission’s opinion supported the separate identification in the procedural codes of the parties' motions on referral of cases to the Constitutional Council, the detailed procedure for their consideration by the court, and the establishment of specific grounds for refusal and its appeal to higher instances.

As pointed out by the European expert body, the basis for the court’s application to the Council is not the judge’s conviction that the law is unconstitutional, but the existence of reasonable doubts, which may also be invoked by the parties to the proceedings. The Commission stressed that the implementation of Constitutional Council’s decisions is a prerequisite for ensuring the rule of law. It also drew attention to the importance of the legal positions and arguments of the Constitutional Council, which should guide the ordinary courts and other State bodies.

The Commission also adopted the opinions: on the draft Constitution of Kyrgyzstan; on amendments to the Constitution and the procedure for their adoption of the Russian Federation; on Citizens’ security Law of Spain; on the draft Law on Political Parties of Ukraine; on the draft law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina; on the draft law on the People's Advocate of the Republic of Moldova, etc.

The event also was attended by representatives of Kazakhstan in the Commission - Deputy Executive Director of the Nursultan Nazarbayev Foundation Igor Rogov and Member of the Constitutional Council Unzila Shapak.