On the application of the norms of international treaties of the Republic of Kazakhstan
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008 No. 1.
The international treaties and other obligations of the Republic corresponding to the Constitution are an integral part of the current law in the Republic of Kazakhstan.
International treaties play a significant role in ensuring judicial protection of the rights, freedoms and legitimate interests of citizens and organizations, therefore, in necessary cases, courts are obliged to follow the norms of international law within the jurisdiction of the Republic of Kazakhstan.
In order to ensure the correct and uniform application of the norms of international treaties of the Republic of Kazakhstan, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides :
The rights and freedoms of man and citizen established by the Constitution of the Republic of Kazakhstan and the norms of international law recognized by the Republic of Kazakhstan are recognized and guaranteed in the Republic of Kazakhstan.
According to paragraph 2 of article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms.
The Republic of Kazakhstan undertakes to ensure the protection of rights and freedoms for all persons located on its territory and under its jurisdiction in accordance with the Constitution and accepted international obligations.
According to subparagraph 6) of Article 1 of the Law of the Republic of Kazakhstan "On International Treaties of the Republic of Kazakhstan" dated May 30, 2005, an international treaty of the Republic of Kazakhstan should be understood as an international agreement concluded by the Republic of Kazakhstan with a foreign state (foreign States) or with an international organization (international organizations) in writing and regulated by international law, regardless of, such an agreement is contained in one document or in several related documents, and also regardless of its specific name (for example, a treaty, convention, pact, agreement, etc.).
International agreements concluded on behalf of the Republic of Kazakhstan are interstate agreements, on behalf of the Government of the Republic of Kazakhstan - intergovernmental agreements, on behalf of central executive bodies, as well as government bodies directly subordinate and accountable to the President of the Republic of Kazakhstan - interdepartmental agreements.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
International treaties concluded by the Republic of Kazakhstan in accordance with the Constitution of the Republic in accordance with the established procedure and ratified by the Parliament of the Republic of Kazakhstan have priority over its laws (paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan).
The provisions of international treaties that do not require the publication of laws for application are directly applicable in the Republic of Kazakhstan.
In other cases, along with an international treaty, the relevant law adopted to implement the provisions of the ratified international treaty should also be applied.
A number of international treaties of the Republic of Kazakhstan that are not subject to ratification, concluded before the adoption of the Constitution of 1995, are valid and retain priority over the legislation of the Republic, if such priority is directly provided by the laws of the Republic for the relevant areas of legal relations.
If an international treaty concluded by the Republic of Kazakhstan prior to the adoption of the current Constitution establishes rules other than those in the civil legislation of the Republic of Kazakhstan, the rules of the international treaty shall apply.
If an unratified international treaty concluded by the Republic of Kazakhstan after the adoption of the current Constitution establishes rules other than those in civil law, the courts must be guided by the provisions of paragraph 3 of Article 4 of the Constitution, as well as the specified resolutions of the Constitutional Council of the Republic of Kazakhstan. 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.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
When deciding on the possibility of applying the norms of international treaties of the Republic of Kazakhstan, courts should proceed from the fact that an international treaty of the Republic of Kazakhstan enters into force in accordance with the procedure and terms stipulated in the treaty or agreed upon by their parties. In the absence of an agreement, an international treaty enters into force as soon as the consent of all States participating in the negotiations is expressed to be bound by the treaty (article 24 of the Vienna Convention on the Law of Treaties of 1969).
An international treaty is subject to application if the Republic of Kazakhstan has expressed its consent to be bound by an international treaty by signing the treaty, exchanging documents, ratifying the treaty, accepting it, approving it, acceding to the treaty, or by any other means agreed upon by the contracting parties.
According to article 28 of the 1969 Vienna Convention on the Law of Treaties, international treaties are not retroactive unless this is expressly provided for in the treaty. At the same time, the requirements of subparagraph 5) of Article 77 of the Constitution of the Republic of Kazakhstan must be observed.
In accordance with paragraph 2 of the Resolution of the Constitutional Council of the Republic of Kazakhstan "On the official interpretation of subparagraph 7) of Article 54 of the Constitution of the Republic of Kazakhstan" dated May 18, 2006, 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 Parliament of the Republic, are equivalent to international treaties ratified by the Republic of Kazakhstan.
In accordance with paragraph 4 of Article 4 of the Constitution of the Republic of Kazakhstan and based on the meaning of article 24 of the Law of the Republic of Kazakhstan "On International Treaties of the Republic of Kazakhstan", officially published and effective international treaties of the Republic of Kazakhstan are applied.
Officially unpublished international treaties concerning the rights, freedoms and duties of citizens are not applicable.
Ratified international treaties that have direct effect and do not require the issuance of laws for their application are used as norms of substantive (with the exception of areas of criminal law and administrative law relations) or procedural law in resolving cases, in particular:
when considering civil cases, if international treaties of the Republic of Kazakhstan establish rules other than the law of the Republic of Kazakhstan that regulate relations that have become the subject of judicial review.;
when considering civil and criminal cases, if international treaties of the Republic of Kazakhstan establish rules of judicial procedure other than the civil procedure or criminal procedure laws of the Republic of Kazakhstan.;
when considering civil or criminal cases, if international treaties of the Republic of Kazakhstan regulate relations, including with the participation of foreign persons (for example, when considering cases listed in Articles 416 , 417 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - Civil Procedure Code), on judicial orders from foreign courts on the conduct of certain procedural actions provided for in Article 423 of the Civil Procedure Code, on the execution of decisions of foreign courts and arbitration courts provided for in Article 425 of the Civil Procedure Code, complaints against decisions on extradition of persons accused of committing crimes or convicted by a court of a foreign state in accordance with Chapter 56 of the Criminal Procedure Code of the Republic of Kazakhstan (next is the CPC);
when considering cases of administrative offenses, if international treaties of the Republic of Kazakhstan establish rules of judicial procedure other than those provided for by the legislation on administrative offenses.
In accordance with part one of Article 1 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) and part one of Article 1 of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), criminal and administrative legislation consist exclusively of the relevant codes of the Republic of Kazakhstan. Other laws providing for criminal or administrative liability are subject to application only after their inclusion in these codes.
International legal norms providing for elements of crimes should be applied in cases where the norm of the Criminal Code explicitly establishes the need to apply an international treaty of the Republic of Kazakhstan (for example, Articles 158 and 159 of the Criminal Code).
When considering a case, when the norms of the Criminal Code provide for criminal liability for a crime prohibited by an international treaty of the Republic of Kazakhstan, the court is obliged to examine the content of international agreements of the Republic of Kazakhstan and the norms of the criminal law providing for criminal liability for acts prohibited by an international treaty in order to establish whether all the signs of a criminal offense from an international treaty of the Republic of Kazakhstan are included in criminal law, find out the issue of ratification, effective date, etc.
The interpretation of the norms of international treaties of the Republic of Kazakhstan, including the preamble, annexes, as well as any agreements and documents related to an international treaty, must be carried out by the court in compliance with the rules provided for in articles 31 to 33 of the Vienna Convention on the Law of Treaties of May 23, 1969, based on the subject and purpose of the treaty.
Where necessary, courts should be guided by the norms of The International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR), ratified by Parliament on November 28, 2005, to ensure compliance with the obligations of the Republic of Kazakhstan as a party to the International Covenant.
In accordance with article 14, paragraph 1, of the ICCPR, all persons are equal before the courts and everyone has the right to a fair and public hearing by a court established by law when considering any criminal charge against him or when determining his rights and obligations in any civil proceeding. his cases are before the court and the judge to whose jurisdiction it is assigned by law.
This rule applies not only to courts represented by permanent judges of the Republic of Kazakhstan, but also to judicial proceedings involving jurors.
By virtue of part 1 of article 9 of the ICCPR, everyone has the right to freedom and personal integrity. No one may be subjected to arbitrary arrest or detention. It follows from this that everyone detained on suspicion of committing a crime has the right to appear before a court to assess the legality of the detention and decide on a preventive measure. Therefore, when authorizing an arrest in accordance with the requirements of article 14 of the CPC, it is necessary to assess the validity and legality of the detention of a person on suspicion of committing a crime.
At the same time, according to part 3 of Article 9 of the ICCPR, every person who is arrested or detained has the right to a trial within a reasonable time or to be released pending trial.
A reasonable time for the completion of the trial presupposes not only compliance with the limits of the time limits of the proceedings established by law, but also the possibility of its completion in a shorter period, based on the specific circumstances of the case under consideration.
When deciding to authorize the arrest of an accused (suspect) as a preventive measure, to extend the period of arrest, and to resolve complaints from the accused about illegal actions by officials conducting pre-trial proceedings, courts should take into account the need to respect the rights of persons in custody provided for in articles 7, 9, and 14 of the ICCPR.
When resolving an application for release from custody or a complaint for an extension of the period of arrest, the court must take into account the provisions of article 7 of the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted by UN General Assembly Resolution 39/46 of December 10, 1984), to which the Republic of Kazakhstan acceded on June 29. in 1998.
In accordance with part 1 of article 10 of the ICCPR, the conditions of detention of the accused must comply with international requirements for respect for the inherent dignity of the human person.
In order to distinguish torture from other types of ill-treatment and punishment, it should be borne in mind that torture is understood as the intentional infliction of physical and (or) mental suffering committed by persons specified in the disposition of article 141-1 of the Criminal Code in order to obtain information or confessions from the tortured person or a third person, or to punish him for an act that he committed or is suspected of commit, as well as intimidate or coerce him or a third party, or for any reason based on discrimination of any kind.
According to established international practice, the signs of torture are: the infliction of severe physical and mental suffering, the presence of direct intent, the purposefulness and intensity of the relevant actions. When qualifying torture, the duration and methods of infliction of suffering, gender, age and condition of the victim should be taken into account.
Cruel and inhuman treatment includes actions aimed at causing physical and mental suffering, which are much less intense than torture and are not associated with prolonged infliction of severe physical pain or mental suffering.
Degrading treatment is defined as treatment that causes the victim to feel fear, anxiety and inferiority, leads to suppression of will, insult and other negative consequences.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
Cooperation in the field of legal assistance between the CIS countries in civil, family and criminal matters is usually carried out in accordance with the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, dated January 22, 1993, as amended on March 28, 1997 - The Minsk Convention), ratified by the resolution of the Supreme Council of the Republic of Kazakhstan dated March 31, 1993, which entered into force on May 19, 1994), the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Chisinau, October 7, 2002), ratified by the Law of the Republic of Kazakhstan dated March 10, 2004, which entered into force entered into force on April 27, 2004 (hereinafter - the Chisinau Convention), the Codes of Civil Procedure (Section 5 of the CPC) and the Code of Criminal Procedure (Chapter 55 of the CPC) and other normative legal acts, international treaties.
In accordance with paragraph 3 of Article 120 of the Chisinau Convention, the Minsk Convention and its Protocol of March 28, 1997 are terminated between the participating States.
At the same time, according to paragraph 4 of Article 120 of the Chisinau Convention, the Minsk Convention applies in relations between the States parties to the Chisinau Convention and the State party to it, for which the Chisinau Convention has not entered into force.
The list of central and other state bodies of the Republic of Kazakhstan authorized to implement the provisions of the Minsk and Kishinev Conventions is defined in the Resolution of the Government of the Republic of Kazakhstan "On measures to implement the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated January 22, 1993 and the Convention on Legal Assistance and Legal Relations in Civil, Family and criminal cases dated October 7, 2002" dated December 31, 2004, with subsequent amendments and additions.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
In case of issues requiring clarification of a technical and legal nature in the application and interpretation of the norms of the international treaty of the Republic of Kazakhstan, acts and decisions of international organizations of which the Republic of Kazakhstan is a member should be used, as well as contact the Ministry of Foreign Affairs of the Republic of Kazakhstan, the Ministry of Justice of the Republic of Kazakhstan, the Prosecutor General's Office of the Republic of Kazakhstan (for example, to clarify the issues related to the duration of the international treaty, the list of States participating in the treaty, the presence or absence of a reservation in an international treaty by the participating countries, judicial practice of applying an international treaty in foreign countries, and others).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
K. Mamie
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
J. Baishev
© 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
President
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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