On the review of paragraph 1 of Article 40 of the Land Code of the Republic of Kazakhstan dated June 20, 2003 for compliance with the Constitution of the Republic of Kazakhstan
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated January 30, 2025 No. 64-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., Musin K.S., Nurmukhanova B.M., Ongarbaev E.A., Podoprigora R.A. and Udartseva S.F., with the participation of representatives:
the subject of the appeal is Zhumabekova D.E. – lawyer Sizintseva S.V.,
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 – Director of the Department of Legislation Suleimenov D.A.,
Ministry of Agriculture of the Republic of Kazakhstan – Deputy Chairman of the Committee on Land Management Alpamyshov A.Zh.,
The Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Deputy Head of the Department of Legislation Tasbolatov Zh.S.,
Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,
Institute of Legislation and Legal Information of the Republic of Kazakhstan – D.B. Tebaev, Acting Head of the Department of Legislative Effectiveness Analysis.,
Institute of Parliamentarism – Executive Director Kanatov A.K.,
Republican Notary Chamber – Executive Director Ryspekova G.O.,
considered in an open meeting the appeal of D.E. Zhumabekova on verification of compliance with the Constitution of the Republic of Kazakhstan, paragraph 1 of Article 40 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 appeal for verification of compliance with Article 14, paragraph 2 of Article 26 and paragraph 3 of Article 39 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution, Basic Law) of paragraph 1 of Article 40 of the Land Code, according to which the transfer of land use rights by universal succession means the emergence of land use rights the legal successor in case of inheritance by law or in case of reorganization of a legal entity.
It follows from the appeal and the documents attached to it that the applicant is the heir according to the will to the inherited property remaining after the death of his spouse. According to the certificates of inheritance rights under a will issued by a notary, the inherited property consists of a half share of the right to temporary paid (long-term, short-term) land use (lease) for a period of 40 and 49 years for four land plots, divisible, with the intended purpose for farming.
By the decision of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the Supreme Court) dated November 8, 2023, judicial acts of local courts were canceled with a new decision on partial satisfaction of the claim of the peasant farm. The Supreme Court stated that the disputed land plots were provided to the peasant farm by the local executive body, therefore, the right of land use for these plots belongs to its members. The subject of the appeal is the heir according to the will and is not part of the peasant farm, accordingly, based on the provisions of paragraph 1 of Article 40 of the Land Code, the court concluded that it was impossible for the applicant to transfer land use rights through universal succession.
According to the subject of the appeal, such a restriction does not comply with one of the fundamental principles of private law – "everything is allowed that is not directly prohibited by law." It is inconsistent with the interpretation of other norms of the Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994 (hereinafter referred to as the Civil Code) and the Land Code, which provide for the possibility of transferring land use rights to heirs both by law and by will, and directly contradicts the norms of the Constitution.
In accordance with paragraph 1 of Article 45 and paragraph 2 of Article 50 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 notes that, upon appeals from citizens, it verifies the constitutionality of normative legal acts directly affecting their rights and freedoms enshrined in the Constitution, and only in the part specified in the appeal. Accordingly, this rule of law is subject to verification only within the limits of the transfer of land use rights in the order of universal succession to inheritance by law.
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. Public and private property are recognized and equally protected in the Republic of Kazakhstan. Property is binding, and its use must simultaneously serve the public good. The subjects and objects of ownership, the scope and limits of the exercise of their rights by the owners, and the guarantees of their protection are determined by law. 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 (article 6 of the Constitution).
The Constitutional Control Body previously gave an official interpretation to paragraphs 2 and 3 of Article 6 and sub-paragraphs 1) and 2) of paragraph 3 of Article 61 of the Constitution, indicating that the legal regime of ownership, the scope and limits of the exercise by the owner of his powers are regulated by law. The constitutional provisions establish the general mandatory principles of land relations in the Republic of Kazakhstan, which are regulated by laws based on them and legislative acts of equal legal force to them (normative resolutions of the Constitutional Council of the Republic of Kazakhstan dated November 3, 1999 No. 19/2 and April 13, 2000 No. 2/2).
Human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, are guaranteed in accordance with the Constitution, and determine the content and application of laws and other normative legal acts (paragraphs 1 and 2 of Article 12 of the Constitution).
Citizens of the Republic of Kazakhstan may have any legally acquired property in private ownership. Property, including the right of inheritance, is guaranteed by law (paragraphs 1 and 2 of article 26 of the Basic Law).
The right of inheritance provided for in paragraph 2 of Article 26 of the Constitution includes, on the one hand, the guaranteed opportunity of the testator to leave his property to persons close to him, including by making a will, and on the other hand, the right of heirs to accept the inheritance and exercise the powers of the owner or other owner obtained in relation to it. Thus, through the institution of inheritance, the interests of the testator, his creditors and heirs are protected, the lifelong will of the person to dispose of the acquired property is realized, the preservation and development of family relations, and legal certainty in civil turnover are ensured. The procedure for exercising the right of inheritance, the scope and limits of its exercise, and guarantees of legal protection are determined by laws. This right is not subject to restriction in any cases by virtue of the requirements of paragraph 3 of Article 39 of the Basic Law.
2. In accordance with paragraph 4 of Article 6 of the Land Code, property relations in the ownership, use and disposal of land plots, as well as transactions with them, are regulated by the civil legislation of the Republic of Kazakhstan, unless otherwise provided by the land, environmental, forest, water legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on subsoil, plant and animal the world, about specially protected natural areas.
Land plots from state-owned lands may be provided for permanent or temporary land use. The right of land use is a property right. The rules on ownership apply to it, since this does not contradict the provisions of the Land Code or the nature of property law. The right of land use may be permanent or temporary, alienable or inalienable, acquired for a fee or free of charge. No one may be deprived of the right to land use except on the grounds established by the Land Code and other legislative acts of the Republic of Kazakhstan (subparagraph 2) of Articles 27, articles 28 and 29 of the Land Code).
The norms of the Civil Code also classify the right of land use as property rights. A person who owns a land plot on the right of land use has the right to demand recognition of his rights, to claim property (land plot) from someone else's illegal possession, including from a bona fide acquirer, to defend his right of ownership against the actions of the owner and to demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession (subparagraph 1) of paragraph 1 of Article 195 and articles 259-261, 264 and 265).
The right of land use arises by: 1) granting land use rights on the basis of acts of state bodies, 2) transfer of land use rights as a result of civil law transactions and other grounds provided for by the legislation of the Republic of Kazakhstan, 3) transfer of land use rights through universal succession as a result of inheritance or reorganization of a legal entity, carried out taking into account the intended purpose of the land (Articles 31 - 33 and 40 of the Land Code).
By virtue of the provisions of paragraphs 1 and 2 of Article 40 of the Land Code, the transfer of land use rights by way of universal succession means that the legal successor has the right to use land when inheriting by law or when reorganizing a legal entity. In the event of the death of a citizen to whom the land plot belongs on the right of long-term temporary land use, the right of land use is inherited in accordance with the procedure provided for by the civil legislation of the Republic of Kazakhstan. Unless otherwise provided by the temporary land use agreement, the right to temporary short-term land use is inherited in the same manner.
Succession is a transfer of rights and obligations from one legal entity to another, which is carried out both by virtue of the provisions of the law and by virtue of an agreement between the parties in a civil contract. In the case of universal succession, all rights and obligations (hereditary or obligatory) are transferred in full from one person (the legal giver) to another person – the legal successor, who takes the place of his legal successor in all legal relations, with the exception of those in which succession is not permitted by law (paragraph 4 of Article 116 and paragraph 2 of Article 1040 of the Civil Code).
In the current legislation of the Republic of Kazakhstan, universal succession is carried out with respect to individuals – upon inheritance and with respect to legal entities – upon their reorganization (Articles 45-48, paragraph 1 of Article 116, paragraph 1 of Article 323, subparagraph 1) of Article 344, Article 965, paragraph 2 of Article 1038 and Article 1081 of the Civil Code, subparagraph 3) of paragraph 1 articles 22, subparagraph 3) of paragraph 1 of Article 31 and paragraph 1 of Article 40 of the Land Code).
Inheritance consists in the transfer of the property of a deceased citizen (testator) to another person (persons) – the heir (heirs). The inheritance of a deceased citizen passes to other persons under the terms of universal succession as a whole and at the same time, unless otherwise provided for in the rules of Section 6 of the Civil Code (on inheritance law) (paragraphs 1 and 2 of Article 1038 of the Civil Code).
In paragraph 34 of the normative resolution of the Supreme Court of June 29, 2009 No. 5 "On certain issues of the application of inheritance legislation by courts" (hereinafter referred to as NP VS), it is clarified that in the order of universal succession, not only the hereditary property, property and individual non–property rights of the testator, but also his duties, are transferred to the heirs. Therefore, according to Article 1081 of the Civil Code, heirs who have accepted an inheritance are liable for the obligations of the testator as joint debtors within the limits of the value of the property transferred to each heir. An heir who has accepted an inheritance by way of hereditary transmission is liable, within the limits of the value of this property, for the debts of the testator to whom this property belonged, and is not liable with this property for the debts of the heir from whom the right to accept the inheritance has passed to him.
Inheritance is carried out by will and (or) by law. A will is recognized as the expression of a citizen's will to dispose of his property in case of death (Articles 1039 and 1046 of the Civil Code). Inheritance by law takes place when there is no will or does not determine the fate of the entire inheritance, as well as in other cases established by the Civil Code.
The inheritance includes the property belonging to the testator, as well as the rights and obligations, the existence of which does not cease with his death. The inheritance may also include the rights necessary to formalize the testator's property rights that were not formalized during his lifetime, including the right to register them (paragraph 1 of Articles 1040 and Article 1041 of the Civil Code). The right of land use is classified as a property right along with the right of ownership, which means that it is included on an equal basis with other property in the inheritance and inheritance on a general basis.
When exercising hereditary rights, the law does not establish differences in the transfer of individual components of the hereditary mass, depending on the type of inheritance.
The legislator established two types of inheritance grounds: by will and by law, prioritizing inheritance by will based on the voluntary lifetime expression of a citizen's will to dispose of his property, except in cases provided for by the norms of the Civil Code.
If the testator has determined the fate not of the entire inheritance, but of a part of the property, then the remaining unqueathed part is distributed among the heirs according to the law. These heirs include those heirs by law to whom another part of the property was left by will (Article 1049 of the Civil Code). The testator's minor or disabled children, as well as his disabled spouse and parents, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law (mandatory share) (paragraph 1 of Article 1069 of the Civil Code). Other features of the provisions on inheritance are regulated by Section 6 of the Civil Code.
3. For farming or 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. When granting such a right to a land plot, the decision of the local executive body indicates all members of this peasant or farm (paragraphs 1 and 8 of Article 101 of the Land Code).
A peasant or farm is a labor association of persons in which the implementation of individual entrepreneurship is inextricably linked to the use of agricultural land for the production of agricultural products, as well as the processing and marketing of these products. A peasant or farm can take the following forms:: 1) a peasant farm in which entrepreneurial activity is carried out in the form of family entrepreneurship based on common joint ownership; 2) a farm based on the implementation of personal entrepreneurship; 3) a farm organized in the form of a simple partnership on the basis of common shared ownership on the basis of a joint activity agreement. A peasant or farm is established on a voluntary basis and is considered established from the moment of state registration of the right to a land plot, and in cases established by the laws of the Republic of Kazakhstan, after registration as an individual entrepreneur (Articles 41 and 44 of the Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015 (hereinafter referred to as the PC).
The legal regime of ownership of peasant and farm enterprises established in different organizational and legal forms and their members has legal differences and its own characteristics (Article 46 of the PC and Article 224 of the Civil Code).
The property of a peasant farm belongs to its members by right of joint ownership, unless otherwise provided by an agreement between them. The property of a farm organized in the form of a simple partnership on the basis of a joint activity agreement belongs to its members on the right of common shared ownership. The property of a farm based on personal entrepreneurship belongs to the entrepreneur by right of private ownership.
The property relations of the members of a peasant or farm are regulated by the relevant norms of the civil and land legislation of the Republic of Kazakhstan.
Upon the occurrence of grounds for termination of the activities of a peasant or farm (if there is not a single member of the farm, heir or other person willing to continue the activities of the farm, in cases of bankruptcy and termination of private ownership of a land plot or land use rights), the division of common property between the participants in joint ownership, as well as the allocation of a share of one of them may They can be carried out subject to a preliminary determination of the share of each participant in the right to common property. The shared-ownership property may be divided between its participants by agreement between them. The means of production belonging to a peasant or farm are not subject to division upon the withdrawal of one of its members. A participant who has left the farm has the right to receive monetary compensation commensurate with his share in the common ownership of this property (Article 49 of the PC, Articles 218, 221 and 225 of the Civil Code).
The specifics of the legal status and division of a land plot owned jointly or jointly by two or more persons or in their common land use are also regulated by the provisions of articles 53-60 of the Land Code.
The property and the right to a land plot of a peasant or farm are inherited in accordance with the procedure provided for by the laws of the Republic of Kazakhstan (paragraph 5 of Article 46 of the PC).
Article 1082 of the Civil Code establishes the legal feature of inheritance of property left after the death of a member of a peasant or farm: heirs have the right to receive monetary compensation commensurate with their shares in common ownership of this property.
In paragraph 29 of the NP of the Supreme Court, the courts received additional clarification on the application of inheritance legislation (taking into account the specifics of the legal regulation of property rights in the organizational and legal form of this type of farm): on the exclusion from the general rule of the provisions of Article 1082 of the Civil Code, according to which heirs are entitled to receive monetary compensation commensurate with their shares in common ownership of this property, with the exception of opening an inheritance for the property of a farm based on the personal entrepreneurship of the testator. If the agreement on the establishment of a peasant or farm provides for the admission of heirs to membership in such farms, then with the consent of the members of the general meeting of the peasant or farm, the heir of a deceased member of such farm may be admitted to membership within the limits of the hereditary share. The property of a peasant or farm can be divided among the heirs only in case of termination of the activity of such a farm.
Thus, inheritance of the property of a peasant or farm holding the right of ownership of a land plot or the right of land use by an heir who is not a member of this farm is possible only in the following cases:: 1) opening an inheritance for the property of a farm based on the personal entrepreneurship of the testator, or 2) accepting the heir within the limits of the inheritance share as a member of the farm with the consent of the general meeting of the members of the farm. In other cases, heirs are only entitled to receive monetary compensation commensurate with their shares in the common ownership of this property.
4. The Constitution establishes equality of individual rights and duties, equal protection of these rights by the State, and equal responsibility of everyone before the law (article 14, paragraph 1). No one may be discriminated against in any way on the grounds of origin, social, official or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances (paragraph 2 of article 14).
The Constitutional Court, in its regulatory resolution No. 21-NP dated July 14, 2023, stated: "The equality of all before the law and the courts, guaranteed by paragraph 1 of article 14 of the Constitution, means that laws cannot establish differences in the rights of individuals that have no 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 contested norm of the Land Code is inconsistent with the aforementioned constitutional provisions. In a comparative analysis of a number of interrelated norms of the Land Code, the Constitutional Court notes the inequality in the rights of testators and heirs, the existence of discrimination in their implementation, depending on the type of inheritance (by will or by law).
If, in subparagraph 3) of paragraph 1 of Article 22 and subparagraph 3) of paragraph 1 of Article 31 of the Land Code, the legislator reasonably used the definition of "inheritance" as the basis for the transfer of ownership and land use rights through universal succession, without distinguishing on the grounds of inheritance, then in the provisions of paragraph 1 of Article 40 of the same Code, the emergence of land use rights the succession of a legal successor is unreasonably limited to inheritance only "by law." It follows from this that the testator's will to dispose of the right of land use, expressed in the will, remains unfulfilled, and the heirs indicated in the will cannot accept the inheritance left to them, which also violates the right of inheritance stipulated in paragraph 2 of Article 26 of the Basic Law.
The Constitutional Court considers that the legal regulation of the procedure for the implementation of the constitutional right of inheritance should be carried out taking into account the noted provisions of the Constitution, which determine equality in the grounds of inheritance as a condition for the transfer of inheritance in the order of universal succession.
As the Constitutional Court has repeatedly pointed out, legal restrictions may be imposed to protect constitutionally significant values (paragraph 1 of Article 39 of the Basic Law), provided that they must meet the requirements of fairness, reasonableness and proportionality (regulatory Resolutions No. 14-NP of May 18, 2023, No. 20-NP of July 11, 2023, On August 31, 2023, No. 27-NP, dated July 23, 2024, No. 49-NP, dated December 3, 2024, No. 54-NP, and others).
With this understanding of the meaning of these constitutional norms, the provision of paragraph 1 of Article 40 of the Land Code in question regarding the words "by law" is inconsistent with the requirements of the Constitution.
Based on the above, guided by paragraph 3 of Article 72, paragraphs 2 and 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 63 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 the provision of paragraph 1 of Article 40 of the Land Code of the Republic of Kazakhstan in terms of the words "according to the law" as inconsistent with the Constitution of the Republic of Kazakhstan.
2. Decisions of courts and other law enforcement agencies based on the unconstitutional provision of paragraph 1 of Article 40 of the Land Code of the Republic of Kazakhstan are not enforceable and must be reviewed in accordance with the established procedure.
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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