THE CONSTITUTIONAL COUNCIL ADOPTED A DECISION ON THE APPEAL OF THE PRESIDENT OF THE REPUBLIC
Commentary on the decision of the Constitutional Council
The Constitutional Council adopted a decision on the appeal of the President of the Republic of Kazakhstan Kassym-Jomart Tokayev on consideration for compliance with the Constitution of the Republic of the Law “On amendments and additions to certain legislative acts of the Republic of Kazakhstan on the issues of advocacy and legal assistance”.
While recognizing the constitutionality of the Law, the Constitutional Council nevertheless drew attention to the lack of clarity and inconsistency of some of its provisions with related norms, which may create conditions for their ambiguous understanding and improper application.
Thus, the establishment of exceptions from the obligation to keep the secrecy of a legal consultant by subordinate normative legal acts is recognized as inadmissible. According to the Council, the duty of legal advisers to keep professional secrecy is aimed at ensuring the constitutional rights of their clients to privacy, personal and family secrets and, accordingly, exceptions from it should be regulated only by laws.
The decision noted that it was not possible to establish clearly the procedure for revoking a lawyer’s licence and for terminating his or her membership in the bar association, including following the results of certification, the sequence of these actions.
The Council found inconsistency in the amendments regarding the types of legal assistance provided by lawyers. Issuance of certificates on legal issues is excluded from their list in the relevant law. Meanwhile, in the Penal Execution Code, the right of convicts to obtain such certificates is preserved.
The composition of the Council critically assessed the provisions of the Law providing for the creation of the Republican Collegium of Legal Consultants as a non-profit organization based on voluntary membership of the Chambers of legal consultants.
The Constitutional Council considers that the definition in the law of the lower limit of contributions and other measures is justified if they concern the whole community of legal consultants, improve the quality of their legal assistance and do not create conditions for violation of equality among representatives of one field of activity.
In addition, the law establishes internal contradictions regarding the levels of legal regulation of legal assistance issues. While some norms state that these issues may only be regulated by laws, others permit such regulation by other normative legal acts of lesser legal force.
In the light of the above, the Constitutional Council drew the legislator's attention to the need to take additional measures within the framework of the current legislative process in order to eliminate legal conflicts.
The Constitutional Council emphasized that the right to qualified legal assistance implies that every person, in carrying out legally significant actions, has the possibility of receiving professional assistance from highly qualified lawyers. This right is closely related to the implementation of the right to judicial protection and the principles of justice enshrined in the Basic Law.
In this regard, the State must take the necessary measures of a regulatory, organizational and other nature to create appropriate conditions, both to guarantee the specified right of the individual, and to ensure the effectiveness of persons’ activities called upon to provide qualified legal assistance.
The full text of the resolution of the Constitutional Council is published in the press and on the website of the Council.
https://ksrk.gov.kz/ru/solutions/normativnoe-postanovlenie-konstitucion…