ADDRESS of the Constitutional Court on the State of Constitutional Legality in the Republic of Kazakhstan

This Address of the Constitutional Court of the Republic of Kazakhstan on the State of Constitutional Legality in the Republic of Kazakhstan in 2023 has been prepared for the purposes of the implementation of subpara. 6) of Art. 53 of the Constitution of the Republic of Kazakhstan.

Unofficial translation ADDRESS of the Constitutional Court on the State of Constitutional Legality in the Republic of Kazakhstan (Announced at a Joint Session of the Parliament Chambers of the Republic of Kazakhstan on 21st of June) This Address of the Constitutional Court of the Republic of Kazakhstan on the State of Constitutional Legality in the Republic of Kazakhstan in 2023 has been prepared for the purposes of the implementation of subpara. 6) of Art. 53 of the Constitution of the Republic of Kazakhstan. The constitutional reform initiated in the country has created the necessary legislative conditions for the continuation of democratic development, the protection of human rights and the strengthening of the rule of law. The filling the law and the practice of its application with constitutionally binding content guarantees the formation of a culture of respect for the law and trust in state power, constitutional legality and order. The establishment of constitutional legality pursues the tasks of fulfilling all the obligations assumed by the State, maintaining the stability of observance of the rights and obligations of citizens, providing everyone with the opportunity to exercise the right to judicial protection, proportionality of the restriction of human and civil rights and freedoms, constitutional and legal responsibility of the State to the individual in case of improper fulfillment of the obligations assumed. Ensuring constitutional legality in the Republic of Kazakhstan is an indispensable condition for the stable development and strengthening of its Statehood. The Basic Law creates the constitutional and legal basis for the democratization and legal discipline of State bodies, the enhancement of the social role and the expansion of the duties of the State, and the comprehensive protection of human rights and freedoms. The constitutional guidelines and values determined by the results of the republican referendum have been logically and consistently reflected in legislative and other normative legal acts. In 2023, the activities were continued on the legal modernization of society and the State, further strengthening the constitutional rule of law in the country. The re-establishment of the Constitutional Court and the empowerment of citizens with the right to apply for verification of the constitutionality of a law or other normative legal act that was applied in a particular case with their participation are important means of achieving the supremacy of the Constitution. The right of a citizen, the Prosecutor General and the Commissioner for Human Rights to appeal to the Constitutional Court has expanded the possibilities of constitutional control. The strengthening of the powers of the Parliament and its Chambers, the introduction of a majoritarian electoral system contributed to the intensification of the work of deputies in initiating important bills and considering topical issues of the country's development. New principles for the formation of Maslikhats at all levels have made it possible to increase the degree of expression of the will of the population in local government. The adopted laws on the development of the public administration system, the redistribution of powers between its levels have concretized the competence of State bodies, strengthened the independence and responsibility of their heads. The election of Akims of certain districts and cities of regional significance contributed to the development of initiative at the local level, expanded the participation of citizens in the political process and the possibilities of their influence on government officials. The formula ‘Strong regions – strong country’ is filled with new content. The participation of citizens in the management of State affairs is realized in such modern and popular forms of expression of public initiative as public control and petitions. For the benefit of the present and future generations of Kazakh citizens, in order to ensure the rule of law and social justice, the Republic of Kazakhstan continues to work in accordance with the adopted Law «On the return of illegally acquired assets to the State». In addition, the Social Code is the result of the codification of the country's social legislation and the modernization of the social insurance system with the participation of the State, the employer and the citizen, as well as the introduction of social prevention and digitalization of the social sphere. The constitutional guarantee of child protection was confirmed by the adoption of a law on mandatory payments to children from the National Fund. The constant attention of the State in the law-making process to human rights mechanisms and the system for the protection of human and civil rights and freedoms is further strengthened by the adoption by the Head of State of an action plan in the field of human rights and the rule of law with the involvement of civil society in this process. I During 2023, the constitutional control body received 5 303 appeals, of which 5 293 were appeals from citizens and 10 appeals from State bodies and officials. Citizens appealed to verify the constitutionality of certain provisions of pension legislation, the Criminal and Criminal Procedure Codes, the Code of Administrative Offenses and Regulatory Resolutions of the Supreme Court. The largest number of citizens' appeals contained a request to cancel or review the decisions of courts of general jurisdiction, to verify the legality of the pre-trial investigation and other actions (inaction) of law enforcement officers. In other words, the subject of such applications was not within the competence of the Constitutional Court, but was subject to consideration in the courts of general jurisdiction or in other State bodies. Nevertheless, some issues raised in the appeals require separate study, namely: determination of improper declaration of property and the procedure for payment (return) of the electoral fee when citizens exercise their passive electoral right; the statute of limitations for the return of the erroneously paid State duty in the courts; the construction of the corpus delicti of a criminal offense expressed in an encroachment on the inviolability of the home; a preclusive period (1 year) for the payment of one-time compensation in case of disability to law enforcement officers; return of the object of smuggled property (undeclared property) to the State revenue if it was legally acquired and possessed; gratuitous receipt of ownership of occupied housing from the State housing stock by citizens raising children with disabilities; conditions of compensation for the cost of a forcibly withdrawn land plot if it cannot be realized; rules for calculating length of service for servicemen when exercising the right to compensation in lieu of privatization of housing, e.g., credit for service in other States, and others. As practice has shown, citizens who have applied to the Constitutional Court often have not been able to use the available legal instruments in a timely manner due to the lack of necessary awareness of existing human rights institutions or distrust in them. In this vein, it is advisable for the Government and authorized State bodies, within their competence, to intensify legal explanatory work in order to raise citizens' awareness of all existing legal mechanisms for protecting their rights and to ensure regular monitoring of the quality of this activity. Citizens' appeals to verify the constitutionality of normative legal acts must meet all the criteria of admissibility directly established by the constitutional law, and contain a legally clearly formulated and substantiated position. In order to comply with this requirement, conditions have been created for regular legal consultations and explanatory work, and the provision of qualified legal assistance. A special role in achieving this goal is played by lawyers and legal consultants who have the right to represent citizens in the Constitutional Court. At the same time, the State obligation enshrined in the constitutional law to provide guaranteed legal assistance to socially vulnerable groups of citizens when they apply to check the constitutionality of normative legal acts or certain provisions thereof should be given a logical conclusion at the level of sectoral law. In practical terms, the Constitutional Court actively interacts with the professional legal community and takes measures to increase the legal awareness of citizens about the conditions for applying to the Constitutional Court, including through the provision of consulting services at the Citizens' Reception Center and the introduction of information and communication technologies. Particular attention is paid to the transparency of constitutional proceedings and timely mandatory informing of the general public about the final decisions of the Constitutional Court. They have been made available to the international legal and expert community by posting them on the CODICES database of the European Commission for Democracy through Law of the Council of Europe (Venice Commission). The website of the Constitutional Court contains information on the cases considered on the appeals accepted for constitutional proceedings. In general, the Constitutional Court aims to further ensure information transparency and accessibility of its work. The understanding by society, public authorities and citizens of the importance of observing and implementing constitutional norms and principles serves as a guarantee of constitutional legality and sustainable development of society. II The examined in constitutional proceedings cases were related to different fields of law. The review included norms of constitutional laws such as «On Elections in the Republic of Kazakhstan», «On the Judicial System and Status of Judges of the Republic of Kazakhstan»; the Criminal, Criminal Procedure, and Criminal Executive Codes, the Labor Code, the Code of Administrative Offenses, the Administrative Procedure and Process Code, the Code «On Taxes and Other Mandatory Payments to the Budget» (Tax Code), the Civil Code; laws «On Public Service in the Republic of Kazakhstan», «On Military Service and Status of Military Personnel», «On Combating Corruption» and specific provisions of Regulatory Resolutions of the Supreme Court. In the past year, the Constitutional Court issued 38 Regulatory Resolutions, which are universally binding across the entire territory of the country, final, and not subject to appeal. Twenty-four norms of laws were recognized constitutional, twelve were recognized in conformity with the Constitution as interpreted by the Constitutional Court, and eight were found inconsistent with the Basic Law. The constitutionally enshrined rights and freedoms of individuals and citizens define the content of laws and other regulatory legal acts. Key approaches to developing regulatory legal acts include: maintaining a balance of interests among citizens, society, and the State; ensuring the effectiveness of State bodies and preventing abuse of law in legal regulation; reasonableness and prohibition of discrimination in the differentiation of citizens' rights; ensuring semantic consistency of laws in Kazakh and Russian languages; formal clarity and legal precision of legal norms, preventing arbitrary interpretation; eliminating legislative gaps that hinder the realization of human rights. The outlined constitutional requirements and principles are not always observed by participants in the law-making process. The Constitutional Court has repeatedly noted that the grounds and limits of restrictive measures must meet the requirements of Para. 1 of Art. 39 of the Constitution, which States, «Human and civil rights and freedoms may be restricted only by laws and only to the extent necessary for the protection of the constitutional order, public order, human rights and freedoms, public health, and morality». While adopting such laws, the legislator should proceed from the constitutional limits of permissible restriction of human and civil rights and freedoms, without distorting the essence of constitutional rights and freedoms and not introducing restrictions that do not align with constitutionally defined goals. Any legislative restrictions on human rights and freedoms should be adequate to legally justified aims and meet the requirements of justice, proportionality, and commensurability. Inter-branch differentiation of responsibility for identical or similar acts is also based on the premise that criminal, administrative, and other measures of impact, their nature, and the severity of their consequences should correspond to the gravity of the committed offense, and meet the requirements of mutual consistency of substantively related norms of different branches (Regulatory Resolutions 2023: dated February 22 № 3, March 6 № 4, March 27 № 6, April 21 № 11, May 18 № 14-NP, June 13 № 19-NP, December 26 № 38-NP and others). Based on these positions, the Constitutional Court found unconstitutional: legislative restrictions imposed on candidates for various types of public service; prohibition on the exercise of the right to entrepreneurial activity for persons equated with those authorized to perform State functions, which does not pursue constitutional objectives (subpara.s 6) and 14) of para. 3 of Art. 16 of the Law of the Republic of Kazakhstan «On Public Service of the Republic of Kazakhstan», Art. 13 of the Law of the Republic of Kazakhstan «On Combating Corruption», subpara. 11) of para. 2 of Art. 38 of the Law of the Republic of Kazakhstan «On Military Service and Status of Military Personnel», and subpara. 9) of para. 2 of Art. 6 of the Law of the Republic of Kazakhstan «On Law Enforcement Service»). Considering the mission of public service, the State has the right to establish rules for citizens entering and serving in public service, including requirements for candidates and corresponding restrictions, to ensure the effectiveness of the State apparatus, increase public trust, and prevent abuse of authority. When establishing prohibitions on entering public service, it is necessary to ensure the proportionality of legal restrictions arising from disciplinary, administrative, and criminal liability measures for offenses against the interests of public service and State administration. The restriction on the right to entrepreneurial activity for persons equated with those authorized to perform State functions should be determined by the goals of protecting the constitutional order, public order, human rights and freedoms, public health, and morality. Restrictions should be differentiated and conditioned by the nature of official duties, aimed at preventing the use of powers for personal, group, and other non-official interests. Therefore, it is advisable to consider adopting a regulatory legal act governing the transfer of property to trust management (Regulatory Resolution of the Constitutional Court № 19-NP of June 13, 2023). Due to deficiency in legal regulation, contradictions between codes and sectoral laws, and the identification of legal inaccuracies and semantic inconsistencies in the texts in Kazakh and Russian languages, the provisions of Art. 482 of the Criminal Procedure Code of the Republic of Kazakhstan regarding the consideration of complaints by convicts were found unconstitutional (Regulatory Resolution № 29-NP of September 25, 2023). The absence of the convict's ability to use lawyer services in filing complaints to protect the rights and interests of such a person at the stage of execution of the sentence cannot be considered a peculiarity of the criminal process, as it limits the protection of an individual, their life, rights, and freedoms guaranteed by the Constitution. Until the necessary amendments are made, the relevant norms of the Constitution and the Law of the Republic of Kazakhstan «On Advocacy and Legal Assistance» shall be directly applied. The constitutional proceedings revealed non-compliance with the principle of separation of State power into legislative, executive, and judicial branches and their interaction using a system of checks and balances. The Constitutional Court indicated that explanations on judicial practice should not contradict the Constitution, laws, and other supreme State bodies' competence, particularly the legislature, nor contain norms restricting individuals' rights and freedoms (Regulatory Resolution № 18- NP of June 1, 2023). Following the Constitutional Court's decision, the Supreme Court excluded the imperative requirement for a molecular genetic examination's conclusion attached to a court application in adoption cases of children born out of wedlock. The effectiveness of legal regulation of public relations depends not only on the quality of the existing law but also on the correct interpretation of its provisions. The legislator has endowed the Constitutional Court with the right to adopt this type of decision along with recognizing the law or its individual provisions as constitutional or unconstitutional. This is a feature of Kazakhstan's control over the observance of constitutional legality, providing an opportunity to ensure a uniform understanding of the legal norm and its application in strict accordance with the Basic Law. Such interpretation has been provided in twelve Regulatory Resolutions of the Constitutional Court, concerning: the termination of pension payments for long service; the restrictions related to house arrest as a preventive measure; the involvement of a specialist in criminal proceedings; the demand for criminal case materials during the preliminary consideration of a motion to review judicial acts that have entered into legal force; the review of a case due to newly discovered circumstances in a summary procedure for cases of administrative offenses; the criminal liability for illegal circulation of oil and petroleum products; the participation of a convict in group disobedience, involving self-inflicted injury; the appeals against judicial acts in administrative cases; the restriction on employment in quasi-state sector entities for persons who have committed corruption offenses; the consequences of terminating judges' powers due to professional unsuitability (Regulatory Resolutions 2023: dated March 27 № 5, April 11 № 9, April 28 № 12-NP, May 16 № 13-NP, May 18 № 14-NP, July 14 № 22-NP, July 20 № 24-NP, August 31 № 26-NP, October 6 № 33-NP, December 6 № 37-NP). In several cases, laws' norms reviewed upon citizens' appeals were recognized as constitutional, outlining the legal positions of the Constitutional Court for the adoption of legislative measures to ensure the constitutional rights and freedoms of individuals and citizens. Thus, the Constitutional Court emphasized the necessity of adopting measures for the social protection of citizens affected by nuclear tests at the Semipalatinsk Nuclear Test Site (Regulatory Resolution № 30-NP of September 25, 2023). This implies reviewing both the types of assistance provided and its volumes, sizes, and the list of its recipients. The government is recommended to study and propose new principles and approaches to the social protection of this category of people, considering the current radioecological situation in contaminated areas, as well as social, ecological, demographic, medical, and other factors. In the field of criminal justice, the Constitutional Court clarified that the inability to appeal a decision of an investigative judge after its legality and validity have been checked by a regional or equivalent court cannot be considered a restriction of the right of everyone to judicial protection of their rights and freedoms (Regulatory Resolution № 25-NP of August 17, 2023). Art. 214 of the Criminal Code is overloaded with the enumeration of alternative acts related to illegal entrepreneurial, banking, micro financial, or collector activities, which can be differentiated into separate norms of the criminal law. The definitions of significant damage caused to a citizen, as well as a significant size in the turnover of excisable goods are not harmonized: in the Administrative Offenses Code, it is no more than one thousand monthly calculation indices (clauses 1 and 3 of the notes of Art. 153), while in the Criminal Code, it is two thousand monthly calculation indices or more (clauses 2 and 38 of Art. 3). Based on constitutional principles of justice, further specification of the grounds for judges' disciplinary responsibility is deemed appropriate (Regulatory Resolution № 36-NP of December 6, 2023). The content of the concept of «gross violation of the law» must be established at the legislative level. Procedural legislation should provide judges with proper legal protection tools, including the right to judicial appeal. Regarding citizens' access to information, the Constitutional Court emphasized that possible legal restrictions should not threaten the existence and purpose of the right to receive information, especially when information and its sources are related to citizens' rights and freedoms, the application of various legal enforcement measures, or issues of high public importance (Regulatory Resolution № 39-NP of December 26, 2023). III The results of the constitutional review are an important legal source for further improvement of national legislation and assessment of the practice of its application. The obligatory forwarding of the Constitutional Court's decisions to the subjects of State power, including the Parliament, the Government, and authorized State bodies, serves as a signal for them to take immediate measures to ensure constitutional legality. Courts and law enforcement bodies should also strictly observe and apply in their practice the final decisions of the constitutional review body. To date, the Parliament has adopted certain amendments and additions to the laws. Other legislative proposals are at the stage of consideration in the Chambers or coordination at the level of the Government, interested State bodies, and organizations. Thus, in implementation of the Constitutional Court's Regulatory Resolution № 3 of February 22, 2023, the limits of State duty have been set and the procedure for its payment in cassation appeals has been clarified, and a deferral of its payment based on a court ruling has been provided for. Regulatory Resolution № 6 of March 27, 2023, revised the conditions of detention for life imprisonment in the Penal Enforcement Code. The recommendations of the Constitutional Court set out in Regulatory Resolution № 8 of April 8, 2023, have been considered in adopting amendments to the Social Code. Amendments were made to the Law of July 20, 2011 «On State Regulation of Production and Turnover of Certain Types of Petroleum Products» in terms of determining the list of documents confirming the legality of the origin of oil and petroleum products. The Parliament is in the final stage of finalizing amendments on the possibility of the participation of a representative in the procedures for consideration of materials in disciplinary proceedings against judges, as well as discussing certain restrictions related to the entry of citizens into certain types of public service. The Constitutional Court in its Regulatory Resolutions recommended the Government, the Supreme Court, the Supreme Judicial Council, and other State bodies to elaborate and amend the existing normative legal acts. These include: elimination of gaps in legislation on the payment of State duty when applying to the court (reduction of the amount, deferment, installment payment, and others); clarification of the competence of State bodies of different levels within the framework of administrative decentralization; strengthening measures to realize the social rights of citizens, including those affected by nuclear tests; improvement of procedures and criteria for evaluating the professional performance of judges; clarification of the legal regulation of the position of a witness with the right to defense; access to the cassation instance regardless of the type of criminal offense and category of crimes; exhaustive definition and differentiation of the elements of criminal offenses related to entrepreneurial, banking (banking operations), microfinance, or collection activities; additional clarification of judicial practice when considering corruption offenses with various forms of manifestation of sham bribery intermediation; adjusting the norms of the Civil Code (Special Part) and the provisions of the relevant Regulatory Resolution of the Supreme Court on compensation for moral damage; differentiation of measures for the prevention of administrative offenses related to driving by intoxicated persons; updating the list of corruption offenses to reflect the goals and objectives of the State anti-corruption policy (Regulatory Resolutions 2023: April 8, № 7 and № 8, April 21, № 10, May 16, № 13-NP, May 22, № 15-NP, July 14, № 21-NP, August 31, № 26-NP, September 25, № 30-NP, October 3, № 31-NP, October 6, № 32-NP, October 27, № 34-NP, November 16, № 35-NP, December 6, № 36-NP). When drafting new normative legal acts, the authorized State bodies should consider the legal positions of the Constitutional Court, formulated since the analysis of the current law in the reasoning part of the normative resolutions, even in case of recognizing certain challenged provisions as following the Constitution. Along with recommendations to improve the current legislation, the practice of the Constitutional Court over a year and a half has shown the need for additional consideration of some issues. 1. The decisions of the Constitutional Court require an adequate response from the authorized State bodies. The simplified procedure for the development of normative legal acts in the Law «On Legal Acts» provides only for acts or their individual provisions recognized as unconstitutional. This mechanism does not apply in the case of recognizing a norm as compliant with the Constitution as interpreted by the Constitutional Court. 2. Insufficient elaboration of the legal and practical feasibility of legislative proposals, lack of due attention to the conclusions of experts, and forecasting of legal consequences increase the risks of adopting a normative legal act of inadequate quality and, in the worst case, recognizing it as unconstitutional. It seems advisable to include as instruments of legal monitoring of legislation provided for by the Law «On Legal Acts» the verification of the implementation of the decisions of the Constitutional Court and the analysis of judicial practice based on generalizations of the Supreme Court. 3. Close attention should be paid to legal conflicts and their consequences when applying the rules on the retroactive effect of new laws regulating prohibitions, restrictions, benefits, or incentives rather than liability. In its decisions, the Constitutional Court stated that the final and transitional provisions of the examined laws, regulating the procedure of their enactment, do not provide for the retroactive effect of the new requirements. At the same time, it has been clarified that laws adopted by the Parliament may have a retroactive effect if the decision to this effect is stipulated in the law itself or in the decision on its enactment (Regulatory Resolutions of the Constitutional Court of August 31, 2023, № 27-NP, of December 26, 2023, № 38-NP and others). The Law on Legal Acts establishes that the effect of a normative legal act does not extend to relations that arose before its enactment, except in cases where the retroactive effect of a normative legal act or a part thereof is provided for by it or by the act enacting the normative legal act, as well as when the latter eliminates obligations imposed on citizens or improves their situation. Laws imposing new obligations on citizens or worsening their situation shall not have retroactive force. 4. It is necessary to specify the grounds for review of judicial acts in case of adoption of a normative ruling on recognizing a law or other legal act or certain provisions thereof as compliant with the Constitution as interpreted by the Constitutional Court. Art. 63, para. 4 of the Constitutional Law stipulates that if the Constitutional Court adopts such a decision, a different interpretation shall be excluded in its application and its consequences shall be the same as in the case of a decision on unconstitutionality. In this regard, it seems advisable to supplement the procedural codes to include this type of normative ruling of the Constitutional Court in the list of grounds for reopening proceedings on newly discovered circumstances. 5. To recommend to the Supreme Court to include in generalizations of judicial practice an analysis of the application by courts of regulatory resolutions of the Constitutional Court, contributing to the strengthening of legal protection of citizens. Such work is carried out by the Prosecutor's office within the framework of their constitutional powers. Several thousand criminal, civil, and other cases, complaints, and materials on the application of measures of criminal procedural coercion have been analyzed with a view to compliance with and enforcement of the decisions of the Constitutional Court. Based on the results of the analysis, acts of prosecutor's supervision and response were introduced on the following issues: restoration of long-service pensions to former staff members; suppression of facts of illegal bringing to administrative responsibility for engaging in entrepreneurial activities by persons equated to persons authorized to perform State functions; preventing the employment in quasi-State sector entities of persons who have committed a corruption offense and who only apply for managerial positions; acceptance and consideration of complaints by advocates against actions (inaction) and decisions of an institution or body executing punishment, in defense of convicts, and others. 6. The problem of establishing proportionate liability for various types of offenses requires deep study. Under Art. 61, subpara. 1) of para. 3 of the Basic Law, the Parliament has the right to issue laws regulate the most important social relations and establish fundamental principles and norms concerning the legal personality of natural and legal persons, civil rights, freedoms, obligations, and responsibilities. These powers include determining the categories of offenses, unlawfulness (criminality), and punish ability of acts based on the degree of their public danger and the criminogenic situation in the country. At the same time, the scope of the legislator's discretionary powers in these matters should correspond to the constitutional limits of permissible restriction of human and civil rights and freedoms. Thus, the achievement of the task of the supremacy of the Basic Law of Kazakhstan is possible through the balance and parity of interests of the individual, society, and the State, and the application of checks and balances. Ensuring constitutional legality is the mission of every subject of state power, state institution, and official.

Дата публикации

03 сентября 2024