Normative resolution of the Constitutional Court No. 30-NP of the Republic of Kazakhstan dated September 25, 2023 "On reviewing for Compliance with the Constitution of the Republic of Kazakhstan Article 13 of the Law of the Republic of Kazakhstan dated December 18, 1992 "On Social Protection of Citizens Affected by Nuclear Tests at the Semipalatinsk Nuclear Test Site"

 

IN THE NAME OF THE REPUBLIC OF KAZAKHSTAN

 

The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Kydyrbaeva A.K., Nurmukhanova B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of:

the subject of the appeal is Asylgaziev B.A.

representatives:

The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,

Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,

Ministry of Health of the Republic of Kazakhstan – Vice Minister Dudnik V.Yu.,

Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan – Vice Minister Ospanova E.D.,

Ministry of Ecology and Natural Resources of the Republic of Kazakhstan – Vice Minister M.T. Oshurbayeva,

Ministry of Energy of the Republic of Kazakhstan – Director of the Department of Atomic Energy and Industry Sergazina G.E.,

Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Head of the sector of the Department of Legislation Battalov A.K.,  

Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,  

National Nuclear Center of the Republic of Kazakhstan – A.O. Aidarkhanov, Director of the branch of the Institute of Radiation Safety and Ecology.,

Non–profit Joint-stock Company "Semey Medical University" - Acting Director of the Scientific Research Institute of Radiation Medicine and Ecology Tokanov A.M.,

In an open meeting, I considered the appeal of B.A. Asylgaziev on checking for compliance with the Constitution of the Republic of Kazakhstan, Article 13 of the Law of the Republic of Kazakhstan dated December 18, 1992 "On Social Protection of citizens affected by nuclear tests at the Semipalatinsk Nuclear Test Site" (hereinafter – the Law).

Having listened to the speaker, judge of the Constitutional Court of the Republic of Kazakhstan Podoprigora R.A. and the participants of the meeting, having studied the expert opinions: Doctor of Law, Professor Khamzina Zh.A., Doctor of Philosophy (PhD) in the specialty "Jurisprudence" Khasenov M.H. and other materials of constitutional proceedings, having analyzed international experience, legislation of the Republic of Kazakhstan and individual foreign countries, Constitutional Court of the Republic of Kazakhstan

 

installed:

 

The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) has received an application for consideration of compliance with Article 14 of the Constitution of the Republic of Kazakhstan and Article 13 of the Law.

This article provides for measures to provide social support to citizens affected by nuclear tests and living in territories exposed to radioactive fallout in the form of pension allowances, additional wages and additional paid leave.

The subject of the appeal previously lived in one of these territories and is a person who suffered as a result of the tests, which is confirmed by the certificate issued to him. Currently, he does not live in the specified territory.  

The applicant considers that article 13 of the Law does not comply with article 14 of the Constitution on equality of all before the law and the courts (paragraph 1) and non-discrimination (paragraph 2).

Article 13 of the Law was applied by the courts of first and appellate instances in civil proceedings (District Court No. 2 of the Almaly district of Almaty, decision of November 1, 2022, and the judicial board for Civil Cases of the Almaty City Court, decision of December 27, 2022) when refusing to satisfy the applicant's claims for the recovery of a salary supplement. and the payment of additional work leave.

When verifying the constitutionality of Article 13 of the Law, the Constitutional Court proceeds from the following.

In accordance with paragraph 1 of article 1 of the Constitution, the Republic of Kazakhstan asserts itself to be a democratic, secular, legal and social state, the highest values of which are man, his life, rights and freedoms. This norm is fundamental for the entire legal system of Kazakhstan, which determines the content of laws and other regulatory legal acts.

An integral principle of the rule of law is the constitutional principle of equality of all before the law and the courts and the prohibition of discrimination. It operates in all spheres of society, including the part of it related to the implementation of the functions of the welfare State.  

Earlier, the Constitutional Council of the Republic of Kazakhstan noted that the Constitutional provision that the Republic of Kazakhstan claims to be a social state means Kazakhstan's intention to develop as a state that undertakes to mitigate social inequality by creating conditions for a decent life for its citizens and free personal development adequate to the capabilities of the state (Resolution No. 18/2 of December 21, 2001).

This provision also means that the Republic of Kazakhstan provides support primarily to socially vulnerable segments of the population, persons in need of special social services, low-income individuals, as well as other persons who, due to certain circumstances, require state assistance. The recipients of such assistance are also citizens who have suffered as a result of natural and man-made emergencies, adverse environmental conditions, environmental emergencies or environmental disasters.

The territories of Semipalatinsk and the areas adjacent to the Semipalatinsk Nuclear Test site (hereinafter referred to as the Semipalatinsk test site) of the Pavlodar, East Kazakhstan and Karaganda regions (in the 1992 administrative division with subsequent changes) are recognized as one of the environmental disaster zones in Kazakhstan. The preamble of the Law notes that nuclear tests conducted over 40 years at the Semipalatinsk test site caused irreparable damage to human health and the environment, and caused an increase in the general morbidity and mortality of the population.

The Republic of Kazakhstan, confirming its purpose as a welfare state, has undertaken obligations to ensure the social protection of citizens affected by prolonged nuclear tests at the Semipalatinsk test site, which is reflected in the Law under consideration.

It classifies territories exposed to radioactive fallout during nuclear tests, establishes the categories and status of citizens affected by such tests, which are subject to the Law, defines the need for environmental rehabilitation of territories and measures to organize medical care for the population.

The Law also establishes specific measures for the social protection of persons affected by nuclear tests. The measures prescribed by law are of a differentiated nature. Thus, the one-time monetary compensation provided for in article 12 of the Law applies to all citizens who lived within the boundaries of environmental disaster zones from 1949 to 1990. The measures provided for in the contested article 13 of the Law apply only to those citizens affected by nuclear tests who currently live in territories designated as radiation risk zones of varying degrees and in territories with preferential socio-economic status. Registration of the place of residence for the provision of appropriate benefits is also provided for in article 14 with respect to women, children, adolescents and their parents and in article 15 of the Law with respect to military personnel and employees of special State bodies.

When the Law was adopted, such a differentiated approach was due to the fact that citizens who lived in the environmental disaster zone at that time continued to be exposed to adverse factors due to earlier tests at the landfill. This, in turn, necessitated additional measures for their social support. Currently, as follows from the arguments and considerations of government agencies and other persons involved in the consideration of the appeal, the radioecological situation in the territories specified in the Law has improved significantly, and only the fact of residence in such territories is not decisive in assessing the harm caused by testing, characterizing living conditions, work, education, etc. The classification of territories into zones of various radiation risks is not as relevant as it was at the time of the adoption of the Law.

At the same time, during the constitutional proceedings, sufficient data were not provided to recognize the territories specified in the Law as completely safe in terms of radiation pollution, and the persons living on them as not affected by negative environmental factors due to such pollution. The radioecological situation is not stable, it is the same in all areas of the area and generally requires careful research and monitoring. According to the Law, these territories are still considered an environmental disaster zone.

From a formal point of view, the provision of additional benefits only to persons affected by nuclear tests who live in an environmental disaster zone may indicate a violation of the principle of equality. However, the constitutional principle of equality cannot be applied without taking into account the various circumstances in which certain categories of citizens find themselves. In this case, a similar circumstance is the place of residence in an environmental disaster area, associated with the continuing adverse effects of the environmental situation on residents.

The affected citizens living in the zones specified in the Law and living outside them were and are at different time intervals to varying degrees in different conditions, which determines the different approach to them in regulatory legal acts. The legislator has the right to establish different levels of protection for persons in such unequal conditions. A differentiated approach to social protection measures and the conditions for their provision is one of the principles of state policy in the field of social protection (Article 3 of the Social Code of the Republic of Kazakhstan dated April 20, 2023).

At the same time, the state pursues a legitimate goal – to support people who are still in a disadvantaged environment and are affected by negative factors compared to other people. The provisions of article 13 of the Law are not intended or have the effect of restricting or otherwise diminishing the rights of others, including those affected by nuclear tests. They are based on reasonable (the need for additional support) and objective (continuing risks for people living in the relevant territories) criteria.

This conclusion corresponds to the provisions of international legal documents. The United Nations Human Rights Committee's general comment No. 18 (1989) states that the enjoyment of rights and freedoms on an equal basis, however, does not necessarily mean equal treatment in any case. The term "discrimination", as used in the International Covenant on Civil and Political Rights (hereinafter – the Covenant), should be understood as meaning any distinction, exclusion, restriction or preference that has the purpose or effect of destroying or diminishing the recognition, use or exercise by all persons, on an equal basis, of all rights and freedoms.

The case law of international courts and human rights bodies has repeatedly pointed out that not every difference in treatment is discriminatory.

The Views of the United Nations Human Rights Committee (including with regard to Kazakhstan), whose competence is recognized by the Republic of Kazakhstan, recall the Committee's jurisprudence, according to which not every distinction based on the grounds listed in article 26 of the Covenant amounts to discrimination if it is based on reasonable and objective criteria and pursues the purpose of which is lawful under the Covenant (CCPR/C/126/D/2311/2013). Similar approaches are observed in the practice of the European Court of Human Rights.

The right of a legislator to apply a differentiated approach in the field of social protection based on various factors (for example, the scale and time of radiation exposure, the level of radiation contamination of territories and its impact on the body, work, service or study in infected territories, and others) is clearly traced in the normative practice of other States faced with the need for social protection of persons exposed to radioactive effects resulting from nuclear tests or man-made nuclear accidents and catastrophes.

Issues similar to the subject of the appeal were considered earlier by the Constitutional Council of the Republic of Kazakhstan in relation to another environmental disaster zone (Resolution No. 3 dated April 29, 2005 "On checking the constitutionality of Article 13 of the Law of the Republic of Kazakhstan "On Social Protection of Citizens Affected by an Environmental disaster in the Aral Sea Region").

The Constitutional Court shares the position of the Constitutional Council, expressed in this resolution, that:

It is the responsibility of the State to recognize and ensure the right to compensation for harm to health, which follows from articles 1, 12, 28, 29 and 31 of the Basic Law. The facts of living in an environmental disaster zone and causing harm to the health of citizens who find themselves in such a zone determine the emergence of constitutional and legal relations between the state and citizens, within which the latter are guaranteed social compensation and benefits for the harm caused or for the risk of causing it. At the same time, the legislator has the right to determine the specific types and conditions of their receipt, as well as to differentiate the rights of citizens according to socially justified criteria.;

differentiation of social compensation and benefits for citizens according to various criteria, including place of residence and loss of health, is associated with the different nature of human exposure to harmful environmental factors and its consequences, and is socially justified, justified and acceptable.;

The different level of social protection of persons living in an environmental disaster zone and those who have left it does not discriminate against the latter on the basis of their place of residence, since a socially determined approach to the protection of these categories of the population does not limit (or detract from) their constitutional rights. The basis of this difference is not the place of residence itself in the geographical sense of the word, but the impact on human health of an unfavorable living environment.

At the same time, the social risks in the case of those affected by an environmental disaster in the Aral Sea region are more related to natural and climatic factors, while the social risks in the case of those affected by nuclear tests are due to man-made impacts. The consequences caused by radioactive contamination depend not only on the place of residence, but to a large extent on the radiation dose received and the associated harm, and are characterized by long–term effects, which should be taken into account when organizing social protection and appropriate legal regulation. The Constitutional Court notes the existence in foreign legislation of such an approach, when the provision of social support measures to persons affected by nuclear tests or nuclear and radiation accidents is based on the person receiving a certain dose of radiation and harm from such exposure.            

The State continues to pay attention to issues related to the former Semipalatinsk training ground. This is evidenced by the adoption of the Law of the Republic of Kazakhstan dated July 5, 2023 "On the Semipalatinsk Nuclear Safety Zone", which provides for new approaches to ensuring nuclear and radiation safety in the Republic of Kazakhstan, as well as to the rehabilitation of the landfill territory. The issues of benefits provided to victims of nuclear tests are also regulated by the Code of the Republic of Kazakhstan dated December 25, 2017 "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), the Social Code of the Republic of Kazakhstan dated April 20, 2023, the Law of the Republic of Kazakhstan dated April 16, 1997 "On Housing Relations", other laws and by-laws and regulations.

Kazakhstan has corresponding obligations under international treaties. According to paragraph 1 of article 6 of the Treaty on the Prohibition of Nuclear Weapons dated July 7, 2017, ratified by the Law of the Republic of Kazakhstan dated July 3, 2019, each State Party, in accordance with applicable norms of international humanitarian and human rights law, appropriately provides assistance to persons under its jurisdiction affected by the use or testing of nuclear weapons. taking into account age and gender factors, without discrimination, including medical care, rehabilitation and psychological support, as well as ensures social and economic integration.

The Constitutional Court notes that the legislator, in a number of positions, gradually reduced the level of social guarantees for persons affected by nuclear tests, which was reflected in the transition to calculating payments in conjunction with the monthly calculation index (instead of the minimum wage), excluding provisions on additional payment for scholarships and other benefits.    

A large number of citizens living in an environmental disaster zone are outside the scope of certain provisions of article 13 of the Law.: individual entrepreneurs, individuals engaged in private practice, and independent workers.

In addition, the burden of payments provided for in article 13 of the Law is borne not only by the State, but also to a significant extent by non–state employers, which, based on the content of the article, indicates a disproportionate distribution of responsibility for providing social support to affected citizens.

The Constitutional Court notes the inconsistency of some provisions of the Law (Articles 2, 10, 12-15), which makes it impossible to accurately identify the recipients of social protection, which leads to different law enforcement practices.

Taking into account the continuing negative consequences of the operation of the Semipalatinsk test site, the Constitutional Court considers it necessary to strengthen social protection measures for citizens affected by nuclear tests (including the descendants of these citizens), which will correspond to the characteristics of the welfare state proclaimed in the Constitution, as well as contribute to the implementation of constitutional provisions on the right to social security, the right to health, and environmental protection. an environment conducive to life and health (articles 28, 29 and 31 of the Constitution). Strengthening social protection measures involves expanding both the types of assistance provided, as well as its volume, size, and recipients.

New principles and approaches for the social protection of affected citizens should be studied and proposed, taking into account the current radioecological situation in the infected territories, the medical consequences for the population exposed to ionizing radiation living both in these territories and beyond, as well as social, environmental, demographic, medical and other factors.

Based on the above, guided by paragraph 3 of Article 72 and paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan

Decides:

To recognize article 13 of the Law of the Republic of Kazakhstan "On Social Protection of citizens affected by nuclear tests at the Semipalatinsk Nuclear Test Site" as corresponding to the Constitution of the Republic of Kazakhstan.

To recommend to the Government of the Republic of Kazakhstan to take measures to improve the legislation of the Republic of Kazakhstan on social protection of citizens affected by nuclear tests, taking into account the positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.

This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the Republic, final and not subject to appeal.

To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.

 

The Constitutional Court

Republic of Kazakhstan

 

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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