Comments to article 2. The application of legal norms in civil proceedings that prevail under the Civil Procedure Code of the Republic of Kazakhstan
1. The Constitution of the Republic of Kazakhstan has the highest legal force and direct effect on the entire territory of the Republic. In the event of a conflict between the norms of this Code and the Constitution of the Republic of Kazakhstan, the provisions of the Constitution shall apply.
2. In the event of a conflict between the norms of this Code and the Constitutional Law of the Republic of Kazakhstan, the provisions of the Constitutional Law shall apply. In the event of a conflict between the norms of this Code and other laws, the provisions of this Code shall apply.
3. International treaties ratified by the Republic of Kazakhstan have priority over this Code and are applied directly, except in cases where it follows from an international treaty that its application requires the publication of a law.
1. The Constitution has established the most important principles of judicial procedure in the Republic of Kazakhstan. The Basic Law contains norms of the most general nature, defining the basic principles of the organization and operation of the judicial system, some functional principles of justice, as well as the right to judicial protection. The Constitution expresses the principle of equality of all before the law and the court, the principle of independence and constancy of judges and their subordination to the law, the principle of transparency, and the competitiveness of the parties. The second part of article 4 of the Constitution contains the most important constitutional provision stating that the Constitution has supreme legal force throughout the Republic.
The provision on supreme legal force and direct action enshrined in the Constitution means that all constitutional norms have supremacy over laws and by-laws, which means that courts must be guided by the Constitution when adjudicating cases. In case of a conflict with the norms of the CPC Constitution, the provisions of the Constitution apply.
2. The next in legal importance is the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan", which establishes norms detailing constitutional provisions on certain principles of judicial proceedings, the structure of the judicial system, the status of judges, as well as regulating issues of material and social security. In case of a conflict between the norms of the CPC and the Constitutional Law, the provisions of the Constitutional Law apply.
The detailed regulation of the process of administration of justice in civil cases is contained in the CPC, therefore, the norms of laws and other normative legal acts in case of conflict with the norms of the CPC have no legal force and do not entail consequences.
3. The Republic of Kazakhstan is a party to multilateral and bilateral international treaties, conventions, and agreements on the provision of legal assistance, which have been ratified by the Republic of Kazakhstan. According to the Constitution, they are an integral part of the Republic's legal system. Consequently, if these treaties establish other rules of judicial procedure, the rules of an international treaty apply, except in cases where it follows from an international treaty that a law is required for its application.
In practice, questions arise about the application of the rules contained in the normative resolutions of the Constitutional Council and the Supreme Court. According to article 4 of the Constitution, the normative resolutions of the Constitutional Council and the Supreme Court are the current law in the Republic of Kazakhstan. In accordance with the Law "On Legal Acts", the normative resolutions of the Constitutional Council and the Supreme Courts are outside the hierarchy of regulatory legal acts established by this law.
Within the meaning of the Law "On Legal Acts", the normative resolutions of the Constitutional Council and the Supreme Court are not independent normative legal acts regulating separate legal relations. They should be considered as valid legal acts through which the Constitutional Council and the Supreme Court explain certain norms of the legislation of the Republic of Kazakhstan.
Consequently, they should be applied in conjunction with the relevant normative legal act, which is the object of clarification, specification and detail in the activities of the Constitutional Council and the Supreme Court. Additional Comment Article 1 of the CPC regulates the priority of legal norms in civil proceedings. Constitutional laws are adopted in order to implement the norms stipulated directly in the Constitution. The supremacy of the norms of the Constitution and constitutional laws over the norms of international treaties is established by the Constitution.
The priority of constitutional norms over international treaties is explained in the normative resolution of the Supreme Court No. 1 dated July 10, 2008 "On the application of norms of international treaties of the Republic of Kazakhstan". In accordance with this resolution, in the event of a conflict between constitutional provisions and ratified (or non-ratified) international treaties to which the Republic of Kazakhstan is a party, priority in application belongs to constitutional norms.
A number of resolutions of the Constitutional Council interpret the priority of the Constitution. Resolution No. 6/2 of May 7, 2001 "On the submission of the Kyzylorda Regional Court on the recognition of the unconstitutional parts of the second paragraph 6.12 of Article 6 of the Lease Agreement for the Baikonur complex, Articles 5 and 11 of the Agreement on Cooperation of Law Enforcement Agencies in Ensuring Law and Order in the territory of the Baikonur complex" confirms the principle of the supremacy of the Constitution on the territory of the Republic, indicates the obligation compliance of international treaties with it. Resolution No. 2 dated May 18, 2006 "On the official interpretation of subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan" (as amended on September 24, 2008) states that if an international treaty of the Republic of Kazakhstan or its individual provisions are recognized in accordance with the established procedure as contradicting the Constitution, which has the highest legal force according to paragraph 2 of Article 4 of the Basic Law. in the territory of the Republic, such an agreement, in whole or in part, recognized as inconsistent with the Constitution, is not subject to execution.
The principle of the supremacy of the Constitution is specified by the Constitutional Council in other resolutions, which define legal positions on certain aspects of the relationship between international law and Kazakh legislation, the place of international treaties in the system of current law, the procedure for their conclusion and application. These include: Resolutions No. 6/2 dated October 28, 1996 "On the official interpretation of paragraph 1 of Article 4 and paragraph 2 of Article 12 of the Constitution of the Republic of Kazakhstan", No. 3 dated March 6, 1997 "On the official interpretation of paragraph 1 of Article 4, paragraph 1 of Article 14, subparagraph 3) of paragraph 3 of Article 77, paragraph 1 of Article 79 and paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan" (as amended on June 18, 2004, No. 7, November 8, 2007, No. 9), dated March 27, 1998, No. 1/2 "On the Appeal of the President of the Republic of Kazakhstan "On compliance with the Constitution of the Republic of the Civil Code of the Republic of Kazakhstan submitted for signature (Special Part), adopted by the Parliament of the Republic of Kazakhstan on February 4, 1998", dated June 15, 2000, No. 8/2 "On the official interpretation of paragraph 4 of Article 92 of the Constitution of the Republic of Kazakhstan", dated October 11, 2000 No. 18/2 "On the official interpretation of paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan", dated December 13, 2001 No. 16-17/3 "On the official interpretation of subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan" (as amended on September 24, 2008), dated May 18, 2006 No. 2 "On the official interpretation of subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan" (as amended on September 24, 2008).
Resolution of the Constitutional Council of May 18, 2006 No. 2 "On the official interpretation of subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan" (as amended on 09/24/2008) states the following:1). Subparagraph 7) of article 54 of the Constitution, as applied to the subject of the appeal, means that the Basic Law of the Republic attaches special importance to ratification as a way of expressing the State's consent to be bound by an international treaty; 2). acts of the Republic of Kazakhstan on ratification of international treaties and acts of the Republic of Kazakhstan on accession to international treaties are equivalent in their legal force and legal consequences. In this regard, international treaties, the binding nature of which for Kazakhstan is established by normative legal acts on accession to international treaties adopted by the highest representative body of the Republic exercising legislative functions (the Supreme Council, Parliament) and decrees of the President of the Republic of Kazakhstan having the force of law, are equated to international treaties ratified by the Republic of Kazakhstan; 3). The non-ratified international treaties of the Republic of Kazakhstan do not have priority over the laws of the Republic and must be executed to the extent that they do not conflict with the laws of the Republic. In case of a conflict between them, the parties to the agreements have the opportunity, in accordance with the Law of May 30, 2005 No. 54-III "On International Treaties of the Republic of Kazakhstan", as well as the norms of international law, to resolve it through conciliation procedures and other measures to overcome the conflict. The legislator, in accordance with paragraph 3 of Article 3, paragraph 3 of Article 61 and paragraph 8 of Article 62 of the Constitution, has the right, by adopting a law, to establish an order ensuring the fulfillment of the international obligations assumed by the Republic, determining the ratio of laws and non-ratified international treaties of the Republic of Kazakhstan; 4). If an international treaty of the Republic of Kazakhstan or its individual provisions are recognized as contrary to the Constitution in accordance with the established procedure, such an agreement or its relevant provisions are not subject to execution.
Resolution of the Constitutional Council of October 11, 2000 No. 18/2 "On the official interpretation of paragraph 3 of Article 4 of the Constitution" states that:1) paragraph 3 of Article 4 of the Constitution should be understood as follows: international treaties concluded by the Republic in accordance with the Constitution, in accordance with the procedure established by law and ratified by Parliament through the adoption of the relevant law have precedence over the legislation of the Republic; 2) international treaties that did not provide for ratification as conditions for entry into force, concluded before the adoption of the Constitution of 1995 year, They are valid and retain priority over the legislation of the Republic, if such priority for these international treaties is directly provided for by the laws of the Republic regulating the relevant spheres of legal relations.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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