On the review of the constitutionality of paragraph 5 of Article 27 of the Law of the Republic of Kazakhstan "On Enforcement proceedings and the status of bailiffs" on the recommendation of the Karaganda Regional Court"
Regulatory Resolution of the Constitutional Council of the Republic of Kazakhstan dated July 3, 2018 No. 5.
The Constitutional Council of the Republic of Kazakhstan, consisting of Chairman K.A. Mami, Council members A.K. Daulbaev, V.A. Malinovsky, I.D. Merkel, R.J. Mukashev, A.A. Temerbekov and U. Shapak, with the participation of:
the representative of the subject of the appeal is the chairman of the judicial board for civil cases of the Karaganda Regional Court, J.K. Seidalina,
Representative of the Government of the Republic of Kazakhstan – Deputy Minister of Justice of the Republic of Kazakhstan Zh.B. Yeshmagambetov,
representative of the Senate of the Parliament of the Republic of Kazakhstan – Deputy of the Senate of the Parliament of the Republic of Kazakhstan D.R. Kustavletov,
representative of the Mazhilis of the Parliament of the Republic of Kazakhstan – Deputy of the Mazhilis of the Parliament of the Republic of Kazakhstan A.N. Zhailganova,
representative of the Supreme Court of the Republic of Kazakhstan – Judge of the Supreme Court of the Republic of Kazakhstan M.V. Odintsovo,
Representative of the Prosecutor General's Office of the Republic of Kazakhstan – Deputy Prosecutor General of the Republic of Kazakhstan A.I. Lukin,
Representative of the National Security Committee of the Republic of Kazakhstan – Deputy Chairman of the National Security Committee of the Republic of Kazakhstan M.S. Osipov,
Representative of the Ministry of Internal Affairs of the Republic of Kazakhstan – Deputy Minister of Internal Affairs of the Republic of Kazakhstan R.T. Zhakupov,
Representative of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti–Corruption, Chief of Staff of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption S.K. Akhmetzhanov,
Representative of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan – Acting Deputy Chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan K.B. Zhulmukhambetov
In an open session, he considered the submission of the Karaganda Regional Court on the recognition of paragraph 5 of Article 27 of the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement proceedings and the status of bailiffs" as unconstitutional.
Having listened to the report of the speaker, member of the Constitutional Council of the Republic of Kazakhstan I.D. Merkel, the speeches of the meeting participants, having read the expert opinions: E.B. Abdrasulov, Professor, Director of the Institute for Retraining and Advanced Training of Judges and Judicial System Staff of the Academy of Justice at the Supreme Court of the Republic of Kazakhstan, M.A. Alyonov– Professor at the L.N. Gumilyov Eurasian National University, J.S. Yelyubayeva – Doctor of Law, Professor and S.G. Pen – Director of the Higher School of Law of the KAZGUU University Joint-Stock Company; Having studied the conclusions of Al-Farabi Kazakh National University, L.N. Gumilyov Eurasian National University, E.A. Karaganda State University. Buketov, KAZGUU University Joint-Stock Company, Caspian University, the State Institution Institute of Legislation of the Republic of Kazakhstan, the Republican Chamber of Private Bailiffs of the Republic of Kazakhstan and the National Chamber of Entrepreneurs of the Republic of Kazakhstan Atameken, opinions of members of the Scientific Advisory Council under the Constitutional Council of the Republic of Kazakhstan, as well as other materials of constitutional proceedings, having analyzed the legislation and the practice of certain foreign countries, the Constitutional Council of the Republic of Kazakhstan
installed:
On June 5, 2018, the Constitutional Council of the Republic of Kazakhstan received a submission from the Karaganda Regional Court declaring paragraph 5 of Article 27 of the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law) unconstitutional.
It follows from the submission that the internal affairs bodies of the Karaganda region refuse to execute a court-sanctioned order of a private bailiff to apply a summons to a debtor who evades appearing before him in the framework of enforcement proceedings.
By the decision of the district court No. 2 of the Kazybekbiysky district of Karaganda, adopted at the request of a private bailiff, the refusal was declared illegal and the specified authorities were charged with the obligation to execute the order on the drive.
The State institution "Department of Internal Affairs of the Karaganda region of the Ministry of Internal Affairs of the Republic of Kazakhstan" did not agree with the decision of the court of first instance and appealed it on appeal.
After examining the materials of the civil case, the Karaganda Regional Court concluded that paragraph 5 of Article 27 of the Law, which is applicable in the case, infringes on the rights and freedoms of man and citizen enshrined in the Constitution and contradicts paragraphs 1 and 3 of Article 39 of the Basic Law.
The court's discretion is justified by the following arguments:
In accordance with paragraph 3 of article 39 of the Constitution, in no case are the rights and freedoms of man and citizen provided for in paragraph 1 of Article 16 of the Basic Law subject to restriction.;
In fact, a private bailiff is given the authority of government agencies that have the right to use force.;
The law does not contain a definition of the drive and does not clearly regulate the procedure and purposes of its application.;
The possibility of bringing a debtor to a bailiff does not achieve the goals of executing a judicial act, and its legal uncertainty creates conditions for abuses and violations of constitutional human rights.
In addition, the court's submission indicates that there are gaps and contradictions in the current legislation.
In this regard, the Karaganda Regional Court, in accordance with article 78 of the Constitution, suspended the civil case and appealed to the Constitutional Council with a motion declaring paragraph 5 of article 27 of the Law unconstitutional.
When verifying the constitutionality of paragraph 5 of Article 27 of the Law, the Constitutional Council 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.
Ensuring the rule of law, public order and security, and the rights and freedoms of citizens is one of the important areas of government activity carried out in the public interest.
By granting everyone the right to defend their rights and freedoms in all ways that do not contradict the law, the Constitution emphasizes the right to judicial protection. Judicial power is exercised on behalf of the Republic of Kazakhstan and has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic. Decisions, verdicts and other court rulings are binding throughout the Republic (paragraphs 1 and 2 of Article 13, paragraphs 1 and 3 of Article 76).
The Constitutional Council has repeatedly noted that the right to judicial protection means the right of any person and citizen to apply to the court for protection and restoration of violated rights and freedoms. This right is exercised on the basis and in accordance with the procedure established by law. The binding force of judicial acts presupposes the obligation of the circumstances established by the court, their legal assessment and the prescriptions specified in judicial acts, as well as the mandatory execution of legal acts of the courts by all state bodies and their officials, individuals and legal entities (normative resolutions No. 7/2 of March 29, 1999, No. 5 of December 7, 2011 and others).
Enforcement of a court decision is a method of judicial protection, which requires the State to take the necessary measures to ensure its implementation. The protection of violated rights cannot be recognized as effective, and the right to judicial protection is fully realized, if the final, effective court decision or act of another authorized body is not executed.
The final decisions of the Constitutional Council emphasized that the elevation of a particular type of rights or freedoms to the constitutional level and the declaration in the Constitution of its guarantee means that the State assumes the obligation to ensure the realization of these rights and freedoms (Normative Resolutions No. 3/2 of March 12, 1999, No. 3 of April 20, 2004, and April 29 2005 No. 3, dated July 1, 2005 No. 4, dated May 28, 2007 No. 5).
These legal positions of the Constitutional Council are also based on the provisions of generally recognized international acts to which the Republic of Kazakhstan is a party.
Thus, the Universal Declaration of Human Rights of December 10, 1948 establishes that everyone has the right to effective restoration of his rights by competent national courts in cases of violation of his fundamental rights granted to him by the Constitution or law (article 8).
The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on December 16, 1966 and ratified by the Law of the Republic of Kazakhstan dated November 28, 2005, stipulates that each State Party to the present Covenant undertakes to ensure that the right to legal protection for any person requiring such protection is established by competent judicial, administrative authorities. or by the legislative authorities or any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial protection (subparagraph (b) of paragraph 3 of article 2).
In addition, in the practice of international human rights organizations, an unjustified delay in the execution of a judicial act is recognized as a violation of the right to judicial protection.
It follows from the above that the State undertakes to create specific legal mechanisms that allow it to adequately protect constitutionally significant values, ensure public order, the rule of law, and effective restoration of rights, including through justice, the establishment of types of responsibility and guarantees for their implementation. According to the Constitution, this falls within the competence of the Parliament, which has the right to issue laws regulating the most important public relations, establishing 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; the basics of the organization and activities of state bodies and local governments, state and military judicial service; issues of the judicial system and judicial proceedings; ensuring the defense and security of the State (sub-paragraphs 1), 3), 6) and 11) of paragraph 3 of Article 61). At the same time, such legislative regulation should be carried out in compliance with the constitutional foundations of the legal status of the individual, the principles of organization and activities of state bodies.
Enforcement proceedings are the final stage of legal proceedings and include not only the procedural activities of the court, but also bailiffs with the authority to enforce judicial and other acts. It is aimed at ensuring real protection of violated rights and legally protected interests of individuals and legal entities, society and the State.
The Law defines the tasks of enforcement proceedings, which are the mandatory and timely adoption of measures aimed at the enforcement of enforcement documents issued on the basis of court decisions, rulings, orders and rulings in civil and administrative cases, sentences and rulings in criminal cases regarding property penalties, as well as decisions of other authorities (Article 2).
These tasks are the same for both public and private bailiffs, who generally follow the same legal regime for enforcement proceedings, with certain exceptions provided for by law.
The legal mechanism of compulsory enforcement is activated in the event of the debtor's refusal to voluntarily fulfill the requirements contained in a judicial or other act and is a guarantee against their non-fulfillment or improper fulfillment.
The execution of enforcement documents as a function of a public-law nature implies the need to create an effective legal procedure for its implementation with adequate tools to influence debtors and other participants in enforcement proceedings who evade the conscientious performance of their duties. These tools may involve restrictions on certain constitutional rights of citizens.
By its legal nature, a summons is a measure to ensure the proceedings in a case, which consists in forcibly transferring (delivering) a person to an authorized body, official or other person to draw up a protocol, ensure timely and correct consideration of the case, execution of the decision taken in the case and other purposes established by law. As an enforcement action, it is aimed at creating conditions for the application of measures of compulsory enforcement of judicial and other acts requiring the direct participation of the debtor, forcing a person to fulfill the obligations imposed on him, as well as ensuring the application of liability measures established by law.
The use of a drive in enforcement proceedings affects the constitutional rights of a person to personal freedom, free movement and free choice of residence, and others (paragraph 1 of article 16, article 21, paragraph 1 of Article 25 of the Constitution). These rights may be restricted in accordance with the procedure and conditions established by the Constitution. According to paragraph 1 of article 39 of the Basic Law, human and civil rights and freedoms may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals. As the Constitutional Council has repeatedly explained, any legislative restrictions on human rights and freedoms must be adequate to legitimately justified goals and meet the requirements of fairness, proportionality and proportionality (Normative Resolutions No. 2 of February 27, 2008, No. 5 of August 20, 2009, No. 1 of December 14, 2016, and others). Based on this position, the Constitutional Council believes that the use of a drive in enforcement proceedings is justified if the commission of an enforcement action is impossible without the participation of a person who evades the appearance of a bailiff.
With regard to everyone's right to personal freedom (paragraph 1 of Article 16 of the Constitution), the Constitutional Council, in its regulatory resolution No. 2 dated April 13, 2012, clarified that it belongs to everyone from birth, is recognized as absolute and inalienable, and in accordance with paragraph 3 of Article 39 of the Basic Law, it is one of the rights and freedoms that are not subject to restriction in which cases, with the exception of those established by the norms of the Constitution itself. As noted by the Constitutional Council, a measure of coercion, expressed in a short-term, no more than seventy-two hours, restriction of a person's personal freedom in order to prevent an offense or ensure proceedings in criminal, civil and administrative cases, as well as the application of other coercive measures, and carried out by authorized state bodies, officials and other persons on the basis and in accordance with the procedure The concept of "detention" in the constitutional and legal meaning is covered by the law. Consequently, the provisions of paragraph 2 of article 16 of the Constitution must also be respected in the legislative regulation of the procedure for the implementation of the drive.
It follows from the above that the use of a drive in the framework of enforcement proceedings against persons who evade appearing before a bailiff is aimed at ensuring the enforcement of court decisions and acts of other state bodies and officials, and does not violate the constitutional rights of citizens participating in enforcement proceedings.
As one of the guarantees for the protection of the rights of a person being brought, it is provided that the court authorizes the bailiff's decision on the choice of this measure.
The Constitutional Council considers that judicial control in the procedure for authorizing a drive should not be limited to establishing only formal conditions for its use. In this process, the court's activities involve a thorough review of the grounds, legality and validity of the application of the drive with a study of all the circumstances of the case (proper notification, lack of valid reasons for non-appearance, facts indicating evasion of the person and others).
Thus, in its content, paragraph 5 of Article 27 of the Law does not contradict paragraph 2 of article 16, paragraphs 1 and 3 of Article 39 of the Basic Law, as it pursues constitutionally significant goals of protecting public order, protecting human rights and freedoms, including the right to judicial protection, as well as ensuring the fulfillment of their duties by participants in the executive production facilities.
Recognizing the constitutionality of paragraph 5 of Article 27 of the Law, the Constitutional Council draws attention to the significant shortcomings of the current legislation regulating the use of force.
The law does not regulate the order of execution of the drive, the mechanism of application of which in practice is accompanied by serious law-restrictive measures. The following are not legally defined: the time of its implementation; the list of persons who are not subject to prosecution; the circumstances of recognizing the reasons for a person's non-appearance as valid; the possibility of using special means, physical force and weapons; as well as other issues affecting constitutional human rights.
The legislation does not clearly define the subject of the enforcement measure in question, which leads to disputes between government agencies and bailiffs, which ultimately inevitably lead to a decrease in the effectiveness of enforcement proceedings.
Thus, in the Law of the Republic of Kazakhstan dated July 7, 1997 "On Bailiffs", the bringing of persons evading appearance to a bailiff or to the place of execution of enforcement actions is attributed to the competence of a bailiff (subparagraph 8) of paragraph 2 of Article 7). This provision was introduced in accordance with the Law of the Republic of Kazakhstan dated May 5, 2003 "On Amendments and additions to certain Legislative Acts of the Republic of Kazakhstan on enforcement proceedings".
According to the Law of the Republic of Kazakhstan dated April 23, 2014 "On Internal Affairs Bodies of the Republic of Kazakhstan", internal affairs bodies are charged with executing judicial acts, demands of judges, and assisting bailiffs in the enforcement of enforcement documents (subitems 35) and 36) of paragraph 1 of Article 6).
By Order of the Minister of Justice of the Republic of Kazakhstan dated January 20, 2011 No. 18 "On approval of Standard Forms of decisions of private bailiffs", the enforcement of the court-sanctioned bailiff's decision on the drive was entrusted to the internal affairs bodies (Appendix 11).
Unlike the Law, the grounds and procedure for applying a drive are regulated in more detail in the Criminal Procedure Code of the Republic of Kazakhstan (Article 157) and the Law of the Republic of Kazakhstan dated June 30, 2017 "On the Prosecutor's Office" (paragraph 5 of Article 45).
The Constitutional Council believes that State coercion measures in the form of a drive applied in various types of proceedings affect the constitutional rights and freedoms of man and citizen. They have a common legal nature, similar grounds for election, and a mechanism for implementation. Therefore, the procedure for their application and the subject of their implementation should be clearly established by law.
In this regard, the Constitutional Council agrees with the opinion of a number of participants in the constitutional proceedings that appropriate legislative measures are needed in order to prevent human rights violations, ensure proper enforcement of court decisions and other acts, and clearly delineate the powers of State bodies during enforcement proceedings.
In a number of normative resolutions, the Constitutional Council pointed out that the law must meet the requirements of legal accuracy and predictability of consequences, that is, its norms must be formulated with a sufficient degree of clarity and based on understandable criteria that exclude the possibility of arbitrary interpretation of the provisions of the law (February 27, 2008, No. 2, February 11, 2009, No. 1, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009, February 11, 2009 December 7, 2011, No. 5 and others). The principle of the rule of law implies the requirement of formal certainty, clarity and consistency of legal regulation, and mutual consistency of subject-related norms of various industry affiliations.
The Constitutional Council notes that bringing as a security measure in enforcement proceedings does not contradict the Basic Law. However, in the absence of a proper legal mechanism in the laws, it may be accompanied by violations of the constitutional rights and freedoms of man and citizen. Therefore, until the required amendments are made, authorized state bodies, officials and other persons, when applying a drive in the framework of enforcement proceedings, must ensure that citizens' rights and freedoms are respected at a level not lower than the guarantees established in the mentioned legislative acts.
Based on the above, guided by paragraph 2 of Article 72 of the Constitution of the Republic of Kazakhstan, subparagraph 1) paragraph 4 of article 17, articles 31-33, 37, 40 and subparagraph 2) Paragraph 1 of Article 41 of the Constitutional Law of the Republic of Kazakhstan dated December 29, 1995 "On the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan
Decides:
To recognize paragraph 5 of Article 27 of the Law of the Republic of Kazakhstan dated April 2, 2010 "On enforcement proceedings and the status of bailiffs" consistent with the Constitution of the Republic of Kazakhstan.
To recommend to the Government of the Republic of Kazakhstan, in order to prevent infringement of human and civil rights and freedoms, more fully regulate the procedure for conducting a drive and clearly delineate the functions and responsibilities of state bodies in enforcement proceedings, to consider initiating amendments to the Law of the Republic of Kazakhstan dated April 2, 2010 "On Enforcement Proceedings and the Status of Bailiffs" and other legal acts in in accordance with the legal positions of the Constitutional Council contained in this regulatory resolution.
In accordance with paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, the 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 languages in the official republican print media.
Chairman of the Constitutional Council of the Republic of Kazakhstan
K.A. Mami
© 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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