On the review of compliance with the Constitution of the Republic of Kazakhstan of the second part of paragraph 14 of Article 43-1 of the Land Code of the Republic of Kazakhstan dated June 20, 2003
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated April 16, 2025 No. 69-NP.
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., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A. and Udartseva S.F., with the participation of:
The subject of the appeal is S.K. Nauryzbaev and his representative, N.K. Kumarov, a legal consultant.,
representatives:
Ministry of Agriculture of the Republic of Kazakhstan – Deputy Chairman of the Committee on Land Management Alpamyshov A.Zh.,
Ministry of Justice of the Republic of Kazakhstan – Director of the Department of Legislation Suleimenov D.A.,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
National Center for Human Rights – Deputy Head of the Department of Civil and Political Rights S.S. Ormanov.,
National Chamber of Entrepreneurs of the Republic of Kazakhstan "Atameken" – Deputy Chairman of the Board of N.K. Usenova,
Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Chief Consultant of the Department of Legislation Dzhigitekova Zh.N.,
Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,
Academy of Law Enforcement Agencies under the General Prosecutor's Office of the Republic of Kazakhstan – Professor of the Institute of Postgraduate Education of V.V. Khan.,
Institute of Legislation and Legal Information of the Republic of Kazakhstan – Chief Researcher of the Department of Legislative Effectiveness Analysis, Doctor of Law, Professor N.N. Turetsky.,
Institute of Parliamentarism – Executive Director, Candidate of Law, Associate Professor Kanatov A.K.,
considered in an open meeting the appeal of S.K. Nauryzbayev on verification of compliance with the Constitution of the Republic of Kazakhstan of the second part of paragraph 14 of Article 43-1 of the Land Code of the Republic of Kazakhstan dated June 20, 2003 (hereinafter referred to as the Land Code).
Having listened to the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan Eskendirov A.K. and the participants of the meeting, having studied the materials of the constitutional proceedings, having analyzed the norms of the current law of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) received an application for verification of compliance with paragraph 2 of Article 14, paragraph 1 of Article 21 and paragraph 4 of Article 26 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court). – Constitution, Basic Law) of the second part of paragraph 14 of Article 43-1 of the Land Code, according to which persons who have lived in a given area, city, village, or settlement for at least 5 years are given an advantage to agricultural cooperatives in the form of awarding additional points to their bids when receiving a land plot in accordance with the procedure determined by the central authorized body.
It follows from the content of the appeal and the documents attached to it that the subject of the appeal participated in a tender for granting the right to temporary paid land use (lease) for farming or agricultural production in the Zharminsky district of the Abai region. By the protocol of the land Commission (collegial body under the local executive body of the district) dated January 25, 2023, No. 3, following the results of the competition, the winner was recognized as the person whose tender proposal, based on part two of paragraph 14 of Article 43-1 of the Land Code and part two of paragraph 23 of the Rules for Organizing and Conducting a tender for granting the right to temporary paid land use (lease) for conducting peasant or farm enterprises, agricultural production, approved by the order of the Deputy Prime Minister of the Republic of Kazakhstan – Minister of Agriculture of the Republic of Kazakhstan No. 518 dated December 20, 2018 (hereinafter referred to as the Rules), awarded an additional 10 points due to the residence of this person in this area for at least 5 years.
By the decision of the specialized interdistrict administrative Court of the Abai region dated April 12, 2023, upheld by the decision of the judicial board for Administrative cases of the Abai Regional Court dated August 10, 2023 and the decision of the Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated March 12, 2024, the administrative claim of the subject of the appeal to the defendants to challenge the protocol decision was denied. the Land commission.
When verifying the constitutionality of the provision of the Land Code in question in relation to the subject of the appeal, the Constitutional Court proceeds from the following.
1. "The earth and its subsoil, waters, flora and fauna, and other natural resources belong to the people. The State exercises the right of ownership on behalf of the people. Land may also be privately owned on the grounds, conditions and within the limits established by law" (paragraph 3 of article 6 of the Constitution).
The Constitutional Control Body previously gave an official interpretation to paragraph 3 of Article 6 of the Constitution, indicating that the constitutional provisions establish the general mandatory principles of land relations in the Republic of Kazakhstan, which are regulated by laws based on these provisions and legislative acts of equal legal force to them. The right to regulate land relations belongs to the State, which establishes legal regimes for land ownership and turnover. The grounds, conditions and limits within which land can be owned, as well as the definition of the range of its subjects and objects, are established by the legislator. With regard to land relations, such a legislative act is the Land Code, which is aimed at creating favorable legal conditions and guarantees for citizens to exercise their constitutional rights and freedoms in the socio-economic sphere (normative resolutions of the Constitutional Council of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Council) No. 2/2 dated April 13, 2000, No. 4 dated April 23, 2003, and No. 8 dated June 10, 2003).
The Basic Law prohibits discrimination of any kind, including on grounds of origin, social status, place of residence or any other circumstances (article 14, paragraph 2).
The Constitutional Court, in regulatory rulings No. 6 dated March 27, 2023 and No. 21-NP dated July 14, 2023, clarified that equality of all before the law and the court, prescribed by Article 14 of the Constitution, as well as the constitutional provision that no one can be discriminated against on grounds of origin, social, official status. equality of property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances, mean equality of rights and duties of the individual, equal protection of these rights by the State and equal responsibility of the individual before the law. The laws adopted in the rights of persons may not establish differences that do not have an objective and reasonable justification. Under equal conditions, the subjects of law should be in an equal legal position. A different approach to the issue of the limits of restrictions on human and civil rights and freedoms, which does not pursue constitutional and legal goals, would contradict article 39 of the Constitution.
The Constitution guarantees everyone who is lawfully located on the territory of the Republic of Kazakhstan the right to freely move around its territory and freely choose their place of residence, except in cases stipulated by law, as well as the right to freedom of entrepreneurial activity, free use of their property for any legitimate entrepreneurial activity. At the same time, unfair competition is prohibited (paragraph 1 of article 21 and paragraph 4 of article 26).
The Constitutional Control Body, in its normative resolutions, gave an official interpretation of the provisions of paragraph 2 of Article 12 of the Basic Law and formulated the following legal positions: human rights and freedoms proclaimed by the Constitution are fundamental in the development and adoption of laws and other normative legal acts establishing the conditions and procedure for the exercise of these rights and freedoms. The inviolability of human rights and freedoms means that a person cannot be deprived of established rights and freedoms by anyone, including the State, except in cases provided for by the Constitution and laws adopted on its basis. It is in the laws that specific conditions and circumstances are defined that make it possible to realize the rights and freedoms of man and citizen. Laws establishing human rights and freedoms, with the exception of those listed in paragraph 3 of Article 39 of the Constitution, may be amended in accordance with the established procedure by the legislature, based on real socio-economic opportunities. Legislative restrictions on human rights and freedoms must meet constitutionally significant goals and meet the requirements of fairness, reasonableness and proportionality (normative resolutions of the Constitutional Council of October 28, 1996 No. 6/2, March 10, 1999 No. 2/2, February 27, 2008 No. 2, August 20, 2009 No. 5, December 14, 2016 Year No. 1 and regulatory decisions of the Constitutional Court dated March 27, 2023 No. 6, dated May 22, 2023 No. 15-NP).
2. The objectives of the land legislation of the Republic of Kazakhstan are: to establish the grounds, conditions and limits for the emergence, modification and termination of ownership of land and land use rights, the procedure for exercising the rights and obligations of land owners and land users; to regulate land relations in order to ensure the rational use and protection of land, reproduction of soil fertility, conservation and improvement of natural environment, adaptation to climate change; creation of conditions for the equal development of all forms of management; protection of land rights of individuals and legal entities and the state; creation and development of the real estate market; strengthening the rule of law in the field of land relations. The rights of individuals and legal entities in the field of land relations may not be restricted, except in cases expressly provided for by the laws of the Republic of Kazakhstan (Articles 5 and paragraph 5 of Article 6 of the Land Code).
In accordance with subparagraph 1) paragraph 5 of Article 37 and part one of paragraph 1 of Article 101 of the Land Code for conducting peasant or farm farming, land plots are provided to citizens of the Republic of Kazakhstan on the right of temporary paid land use (lease) for a period of 10 to 49 years, unless otherwise provided by paragraph 1-2 of Article 43-1 of the Land Code.
A peasant or farm is based on a labor association of persons inextricably linked to the use of agricultural land for the production of agricultural products (paragraph 1 of Article 41 of the Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015 (hereinafter referred to as the Entrepreneurial Code).
One of the ways in which land use rights arise is to grant this right to a person (citizen or legal entity) directly by the state on the basis of a decision of the Government of the Republic of Kazakhstan or a local executive body of a region, city of republican significance, capital, district, city of regional significance (hereinafter referred to as the local executive body) in accordance with their competence. The decision of the local executive body to grant the right to a land plot is made on the basis of a positive opinion of the land commission and the land management project (subparagraph 12-1) of Article 12, subparagraph 1) of paragraph 1 and subparagraph 1) of paragraph 3 of Article 31, paragraphs 1, 2 and 3 of Article 32 and paragraph 2 of Article 43 of the Land Code).
The provision of state-owned land plots for farming or agricultural production is carried out on the basis of a tender in accordance with the procedure and conditions established by Article 43-1 of the Land Code. An application is submitted for participation in the competition, which includes a competitive offer consisting of: 1) a business plan; 2) obligations under the on-farm land management project and the implementation of measures for the development of agricultural infrastructure; 3) obligations to comply with the requirements of the land legislation of the Republic of Kazakhstan. The obligations and the business plan are an integral part of the agreement on temporary paid land use (lease) of the land plot (subitem 4) of the first part of paragraph 9, paragraphs 10 and 11 of Article 43-1 of the Land Code). The winner of the competition is determined by the land commission on the basis of a comparison of bids by awarding points taking into account the relevant criteria (part one of paragraph 14 of Article 43-1 of the Land Code).
After the decision of the local executive body on granting the right to a land plot by the authorized body for land relations within its competence, lease agreements for a land plot or contracts for temporary gratuitous land use are concluded with land users (subparagraph 13) of Article 12, subparagraph 2) of paragraph 3 of Article 31 and paragraph 3 of Article 32 of the Land Code).
The second part of paragraph 14 of Article 43-1 of the Land Code, as amended by the Law of the Republic of Kazakhstan dated June 30, 2021 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the development of land relations", entered into force on January 1, 2022. This provision provides an advantage in the form of awarding additional points to competitive bids for obtaining a land plot to persons who have lived in a particular locality for at least 5 years, in accordance with the procedure determined by the central authorized body for land management.
Paragraph 23 of the Rules (as amended by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated November 11, 2021 No. 328, effective January 1, 2022) defines a system for evaluating bids by awarding points according to the following criteria: 1) the existence of obligations on the projected volume of investments in thousands of tenge per 1 hectare: on non-irrigated and irrigated arable land (irrigated lands), on pasture and hayfields (from one to twenty points); 2) the fact that people have lived in a certain area for at least 5 years (additional 10 points).
Citizens living in a certain area are given the pre-emptive right to obtain a land plot for farming by virtue of the provisions of another norm (part two of paragraph 1 of Article 101 of the Land Code), according to which this right arises if they manage such a farm on the basis of their personal labor participation, special agricultural knowledge and qualifications., practical experience in agriculture.
The same category of citizens enjoys the preferential right to purchase a land plot of a peasant or farm in the event of termination of its activities, provided that the activity has been carried out for at least five years and the property of this farm has been acquired (part three of paragraph 1 of Article 101 of the Land Code).
Thus, the criterion under consideration and similar requirements for the realization of the preferential right to receive a land plot by local residents are fixed in other norms of the Land Code, which indicates the ongoing state policy in order to achieve social justice, further improve the norms of land legislation, and create favorable socio-economic conditions by stimulating employment of people living in a certain area., to meet the need for pasture lands in the context of competition for limited natural resources.
Assigning additional points to the bids of local residents does not have a decisive impact on summarizing the overall results of the competition, since the scoring system is largely based on such a key indicator as the projected amount of investments per 1 hectare of land, for which the bid can be awarded from 1 to 20 points. The advantage in question was introduced to create a balance between objective requirements for the participants of the competition and measures of social support for local residents, which is consistent with the principles and objectives of land legislation (sub-paragraphs 2), 5), 6) and 8) of Articles 4 and 5 of the Land Code).
3. The Constitution guarantees the right of everyone who is lawfully on the territory of the Republic of Kazakhstan to freely move around its territory and freely choose their place of residence, except in cases stipulated by law (paragraph 1 of Article 21). The specific conditions and circumstances allowing the exercise of this right are disclosed in the provisions of Article 14 and paragraph 1 of Article 16 of the Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994, according to which a citizen can freely move around the territory of the Republic of Kazakhstan and choose a place of residence, freely leave Kazakhstan and return to its territory, and also engage in any activity that is not prohibited by legislation. The place of residence is the locality where the citizen permanently or predominantly resides.
The provisions of the Law of the Republic of Kazakhstan dated July 22, 2011 "On Population Migration" provide, in particular, for the right of internal migrants to freedom of movement in the territory of the Republic of Kazakhstan and free choice of place of residence, except in cases stipulated by the law of the Republic of Kazakhstan. The forced transfer of individuals from their place of residence or place of temporary stay (residence) is not allowed on grounds not provided for by the law of the Republic of Kazakhstan (paragraph 1 of Article 51).
In the opinion of the Constitutional Court, the competitive advantage of local residents established by the second part of paragraph 14 of Article 43-1 of the Land Code in the form of awarding additional points to their competitive proposals does not prevent the realization of the rights of other citizens participating in the competition guaranteed by paragraph 1 of Article 21 and paragraph 4 of Article 26 of the Constitution for their free movement, free choice of place of residence and does not restrict the right of everyone to freedom of entrepreneurial activity.
The essence of the constitutional provisions on ensuring freedom of entrepreneurial activity is disclosed in the norms of the Entrepreneurial Code, according to which (in relation to the norm under consideration) the interaction of business entities and the state is aimed at creating favorable conditions for the development of entrepreneurship by stimulating business initiative, ensuring freedom and equality of business entities before the law and the court, regardless of the form of ownership and any other circumstances, protection and support in case of unfair competition (paragraph 1 and sub-paragraphs 2), 3), 5) and 13) of paragraph 2 of Article 3, paragraph 1 of Article 5 and Article 6).
With this understanding of the meaning of the constitutional norms given in this regulatory resolution and the related provisions of the laws, the second part of paragraph 14 of Article 43-1 of the Land Code is consistent with the requirements of the Constitution.
In the opinion of the Constitutional Court, the Rules regarding the criteria for evaluating bids and awarding points should be brought into line with the requirements of Article 43-1 and part two of paragraph 1 of Article 101 of the Land Code, which provide for the preferential right of citizens to receive a land plot not only on the basis of their permanent residence in the area. Farming on the basis of personal labor participation, having special agricultural knowledge and qualifications, and having practical experience in agriculture are also criteria for granting such a preferential right. Bids should be evaluated by the land commission not only according to the projected volume of investments, but also according to other criteria – the components of the business plan and obligations (part one of paragraph 10 of Article 43-1 of the Land Code), which are the content of the bid, and subsequently - an integral part of the contract of temporary paid land use (lease) of agricultural land for peasant or farm enterprises, agricultural production (paragraph 11 of Article 43-1 of the Land Code).
Based on the above, guided by paragraph 3 of Article 72, paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62, paragraph 3 of article 64 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:
1. To recognize part two of paragraph 14 of Article 43-1 of the Land Code of the Republic of Kazakhstan as corresponding to the Constitution of the Republic of Kazakhstan.
2. Recommend that the Ministry of Agriculture of the Republic of Kazakhstan consider improving the legal regulation of criteria for evaluating bids and awarding points when summing up the results of a tender for granting the right to temporary paid land use (lease) for farming, agricultural production, taking into account the legal positions of the Constitutional Court of the Republic of Kazakhstan, set out in this regulatory resolution.
3. This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, final and not subject to appeal.
4. 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
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