On the review of compliance with the Constitution of the Republic of Kazakhstan of the second part of Article 102 of the Administrative Procedural Code of the Republic of Kazakhstan dated June 29, 2020
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated May 23, 2023 No. 16-NP
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., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of:
the subject of the appeal, V.D. Shchebentovsky, and his representative, lawyer A.T. Temirgaly.,
representatives:
Ministry of Internal Affairs of the Republic of Kazakhstan – Deputy Chairman of the Committee of the Penal Enforcement System Taizhanov D.A.,
Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
Commissioner for Human Rights in the Republic of Kazakhstan – Head of the Department of Legislation Analysis and the national preventive mechanism Seitzhanov S.Zh.,
reviewed in an open meeting on compliance with the Constitution of the Republic of Kazakhstan, part two of Article 102 of the Administrative Procedural Code of the Republic of Kazakhstan dated June 29, 2020 (hereinafter referred to as the APPC) at the request of Shchebentovsky V.D.
Having heard the report of the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan K.S. Musin, having studied the materials of the constitutional proceedings, having analyzed the legislation of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan has received an appeal from Shchebentovsky V.D., in which he requests to consider compliance with paragraph 2 of Article 13, Article 14, paragraph 2 of Article 76 and subparagraph 3) paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, part two of Article 102 of the CPC.
It follows from the appeal that the convicted Shchebentovsky V.D., while serving his sentence in the AP-162/3 institution of the Committee of the Penal System of the Ministry of Internal Affairs of the Republic of Kazakhstan (hereinafter referred to as the Institution), applied on June 2, 2022, according to the verdict of the Yesilsky District Court No. 2 of Astana dated February 2, 2018, in connection with the transfer to preferential terms of serving his sentence. year to the administration of the Institution with an application for the right to free movement outside the protected perimeter for employment purposes. The administration of the Institution refused to satisfy his application.
Shchebentovsky V.D. appealed to the specialized interdistrict administrative court of the Pavlodar region (hereinafter referred to as the SMAS) with a claim against the Institution and Military Unit of the National Guard of the Republic of Kazakhstan No. 6679 (hereinafter referred to as the HC) to challenge the refusal to satisfy his application and compel him to adopt a favorable administrative act.
By the definition of the SMAS dated September 5, 2022, the administrative claim against the Institution and the HC was returned to the plaintiff on the basis of subparagraph 11) of the second part of Article 138 of the CPC (the case is not subject to consideration in administrative proceedings). By the ruling of the Judicial Board for Administrative Cases of the Pavlodar Regional Court dated September 22, 2022, the definition of the SMAS was left unchanged, the appeal was dismissed.
In addition, V.D. Shchebentovsky filed a lawsuit with the SMAS against the commander of the HF demanding that the inaction of the state body be recognized as illegal and forced to commit actions in favor of the plaintiff.
By the definition of the SMAS dated September 12, 2022, the administrative claim against the commander of the HF was returned to the plaintiff on the basis of subparagraph 11) of the second part of Article 138 of the CPC (the case is not subject to consideration in administrative proceedings). By the ruling of the Judicial Board for Administrative Cases of the Pavlodar Regional Court dated October 17, 2022, the definition of the SMAS was left unchanged, the appeal was dismissed.
In accordance with part three of Article 138 of the CPC, the return of a claim under subparagraph 11) of part two of the same article prevents the re-filing of a lawsuit against the same defendant, on the same subject and on the same grounds.
The court recommended V.D. Shchebentovsky to file a complaint with the district court in accordance with Article 482 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC).
According to the author of the appeal, the legal relations that have arisen between him, the administration of the Institution and the HC are of a public-law nature and the unlawful return of lawsuits by the courts violates the rights of citizens enshrined in the Constitution, since the second part of Article 102 of the CPC, as well as other laws of the Republic of Kazakhstan, does not disclose the meaning of the concept of "public-law relations" and this This leads to a loose interpretation of the specified norm.
When considering the constitutionality of the contested norm of the CPC in relation to the subject of the appeal, the Constitutional Court proceeds from the following.
The Republic of Kazakhstan, asserting itself to be a democratic, secular, legal and social state, proclaims the highest values of man, his life, rights and freedoms (paragraph 1 of Article 1 of the Constitution).
Among other human and civil rights, the Basic Law, in paragraph 2 of article 13, establishes the right of everyone to judicial protection of their rights and freedoms. Emphasizing the absoluteness and inviolability of this right, paragraph 3 of article 39 of the Constitution refers it to rights that are not subject to restriction in any case.
By proclaiming the right of everyone to judicial protection of their rights and freedoms, the Constitution also establishes equal guarantees and equal opportunities for everyone to exercise this right.
The Constitutional Council, in its regulatory resolution No. 7/2 dated March 29, 1999, stated that "paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan, "All are equal before the law and the court," establishes equality of individual rights and duties, equal protection of these rights by the State, and equal responsibility of everyone before the law."
The Constitution establishes legal norms that are fundamental to all legislation. The legal norms of the Constitution are the basis for the formation and development of all normative legal acts regulating constitutional and legal relations. In this regard, the Constitution does not define the procedure for judicial protection, leaving the detailed regulation of these issues at the level of laws.
The Constitutional Council also drew attention to this in its regulatory resolution No. 8/2 of May 5, 1999, stating that "by establishing in paragraph 2 of article 13 the right of a person and citizen to judicial protection of their rights and freedoms, the Constitution of the Republic provides for the possibility of everyone to apply to the court for protection and restoration of violated rights and freedoms. At the same time, the Constitution does not define the procedure for the implementation of this constitutional right. It follows from article 75 and subparagraph 3) of paragraph 3 of article 77 of the Constitution that this mechanism is established in the laws of the Republic regulating the organizational and legal structure of the judicial system and the administration of justice."
In accordance with paragraph 2 of article 75 of the Basic Law, judicial power is exercised through civil, criminal and other forms of legal proceedings established by law.
The Parliament of the Republic of Kazakhstan, in accordance with subparagraphs 1) and 6) of paragraph 3 of Article 61 of the Constitution, has the right to issue laws that regulate the most important public relations, establish fundamental principles and norms concerning the legal personality of individuals and legal entities, civil rights and freedoms, obligations and responsibilities of individuals and legal entities, issues of the judicial system and judicial proceedings.
In accordance with the legislative acts adopted by the Parliament in accordance with the established procedure, criminal (CPC), civil (Code of Civil Procedure), administrative offences (Code of Administrative Offences) and administrative (APPC) proceedings are in force in the Republic of Kazakhstan.
These normative legal acts establish uniform rules of judicial procedure for courts, regardless of their specialization and level, as well as for citizens, regardless of their gender, race, nationality, social, property status and other characteristics, which, at the same time, are specific to each of their forms. The need for such differentiation of procedural norms is determined by the scope of legal regulation and the tasks assigned by the legislator to a particular type of legal proceedings.
The Constitutional Council, in its regulatory resolution No. 3 of March 6, 1997, clarified that "the definition of jurisdiction for different categories of cases by the procedural law takes into account the specific feature, complexity, social significance of cases, and the need to ensure their rapid and effective resolution."
The APPC, as defined by the legislator in article 3, regulates relations related to the implementation of internal administrative procedures of state bodies, administrative procedures, as well as the procedure for administrative legal proceedings.
The APPC establishes the legal capacity and legal capacity in an administrative procedure, the circle of its participants, their rights and obligations, the provisions and stages of internal administrative procedures of state bodies, and the procedure for appealing actions and decisions of administrative bodies.
A separate section of the APPC regulates administrative proceedings, which establish the procedure for judicial proceedings, taking into account the specifics of the "person–state" legal relationship, the rights and obligations of its participants, the specifics of the consideration of certain types of administrative claims, the conditions and procedure for reviewing judicial acts, as well as judicial control measures.
Article 4 of the CPC provides the meanings of the concepts used in the text of the legislative act. The second part of Article 102 of the CPC, disputed by the applicant, defines that the courts, in the order of administrative proceedings, have jurisdiction over disputes arising from public law relations provided for in this Code.
The absence of the meaning of the concept of "public law relations" in the APPC is not an omission or a flaw in the legislative act, but is due to the very nature of public law. Public law is not an independent branch of law, but is a relatively isolated subsystem formed by branches of law that regulate the power and managerial functions of state and non-state institutions and institutions to ensure the realization of public interest, the work of the mechanism of the state and the protection of the interests of society.
Public law includes components of several branches of law (constitutional (state) law, administrative law, criminal law, tax law, and others), the functional generality and features of which are determined by the subject and methods of regulation, as well as the composition of sources (forms) of law.
In this regard, the meaning of the concept of "public law relations" in certain branches of law may be interpreted differently depending on the types of regulated public relations and, accordingly, have a different expression of norms in relevant laws, which does not allow to formulate its general definition. In turn, such a difference in norms may lead to their arbitrary interpretation, which contradicts the requirements of the Constitution of the Republic and the Constitutional Court on ensuring legal certainty when adopting laws (regulatory resolutions No. 7 of April 8, 2023, No. 14-NP of May 18, 2023, and others).
As noted earlier by the Constitutional Council in its regulatory resolution No. 4 of April 18, 2007, the recognition of a person's right to have his case heard in a court under whose jurisdiction he is assigned by law is one of the guarantees of the right to judicial protection and unhindered access to justice, one of the manifestations of everyone's equality before the law and the court. This guarantee is also contained in paragraph 1 of article 14 of the International Covenant on Civil and Political Rights, adopted by resolution 2200A (XXI) of the United Nations General Assembly on December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005.
Considering the argument of the subject of the appeal about the violation of his right to judicial protection by arbitrarily, without his consent, changing the jurisdiction of the lawsuit filed by him from the administrative to the criminal procedure procedure, the unlawful application by the court of the norms of the CPC instead of the norms of the Criminal Executive Code of the Republic of Kazakhstan (hereinafter - PEC), comparing the norms of law contained in these codes, the Constitutional Court it comes to the following.
In accordance with article 1 of the Criminal Code of Kazakhstan, the penal enforcement legislation consists of the Penal Enforcement Code itself, laws and other regulatory legal acts establishing the procedure and conditions for the execution and serving of sentences and other measures of criminal legal impact imposed by a court verdict that has entered into force.
Meanwhile, the execution of a sentence includes not only serving the sentence imposed by the court, but also issues related to the replacement of the type and regime of punishment, postponement of punishment or early release from punishment, the appointment, extension, modification or termination of compulsory medical measures, the retroactive application of a law or an act on amnesty, and others. legally enforceable.
The stage of execution of the sentence has procedural features. It is carried out mainly through court sessions, in which issues directly related to the implementation of the sentence are considered and resolved, determining the future fate of the convicted person. The activities of the court at the stage of execution of the sentence, as well as at other stages, are based on the common principles of the criminal process and are aimed at achieving the common objectives of criminal proceedings. Such activities are not regulated by the PECS, which, while not being a procedural law, has a highly specialized focus determined by such goals of the penal enforcement legislation of the Republic of Kazakhstan as the restoration of social justice, the correction of convicts, and the prevention of new criminal offenses by both convicts and other persons.
These features lead the legislator to classify the norms on the execution of sentences, including the appeal by convicted persons of actions and decisions of officials of the institution of the penal enforcement system, as part of the criminal procedure legislation regulating the independent stage of criminal proceedings (section 9, chapter 51 of the CPC).
Based on the above, the Constitutional Court considers that the legislator, when adopting the APPC, reasonably excluded the procedures regulated by the criminal procedure legislation of the Republic of Kazakhstan from the list of administrative procedures regulated by the APPC.
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 the second part of Article 102 of the Administrative Procedural Code of the Republic of Kazakhstan as corresponding to the Constitution of the Republic of Kazakhstan.
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.
Constitutional Court of the 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
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
