On the review of the constitutionality of paragraph 5 of Article 47 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" on the recommendation of the Specialized Interdistrict Juvenile Court of the Karaganda region

Regulatory Resolution of the Constitutional Council of the Republic of Kazakhstan dated April 10, 2018 No. 3

     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 E.A. Azimova,

     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 G.B. Akkuova,

     Representative of the Prosecutor General's Office of the Republic of Kazakhstan – Deputy Prosecutor General of the Republic of Kazakhstan M.M. Akhmetzhanov,

     representative of the National Commission for Women and Family and Demographic Policy under the President of the Republic of Kazakhstan - member of the National Commission for Women and Family and Demographic Policy under the President of the Republic of Kazakhstan, Deputy of the Senate of the Parliament of the Republic of Kazakhstan S.M. Aitpayeva,

     Representative of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan – Chairman of the Committee on Labor, Social Protection and Migration A.A. Sarbasov,

     Representative of the Ministry of Education and Science of the Republic of Kazakhstan – Chairman of the Committee for the Protection of Children's Rights N.A. Orshubekov,

      Representative of the Commissioner for Human Rights in the Republic of Kazakhstan – Head of the National Center for Human Rights S.Zh. Ospanov

      In an open session, he considered the submission of the Specialized Interdistrict Juvenile Court of the Karaganda region on the recognition of paragraph 5 of Article 47 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" as unconstitutional.

     Having listened to the report of the speaker, member of the Constitutional Council of the Republic of Kazakhstan U. Shapak, speeches of the meeting participants, Director of the Public Foundation "Pravo" O.V. Ryl, expert professor of the L.N. Gumilyov Eurasian National University A.M. Nurmagambetov; having read the conclusions of experts: B.A. Dzhandarbek – Associate Professor of the Kazakh-American University, M.Zhaskairat – Professors of E.A. Buketov Karaganda State University; having studied the conclusions of the Republican State-owned Enterprise "National Scientific, Practical, Educational and Wellness Center "Bobek", the Commissioner for Children's Rights in the Republic of Kazakhstan, the Representative Office of the United Nations Children's Fund in the Republic of Kazakhstan, Al-Farabi Kazakh National University, L.N. Gumilyov Eurasian National University, Karaganda State University named after Ye.A. Buketov, KAZGUU University Joint-Stock Company, Caspian University, the State Institution Institute of Legislation of the Republic of Kazakhstan and the Public Foundation Ana Uyi, as well as other materials of constitutional proceedings, having analyzed the legislation and practice of individual foreign countries, the Constitutional Council of the Republic of Kazakhstan

      installed:

      On March 12, 2018, the Constitutional Council of the Republic of Kazakhstan received a submission from the Specialized Interdistrict Juvenile Court of the Karaganda region on the recognition of paragraph 5 of Article 47 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code) as unconstitutional.

     It follows from the submission that the said court is considering a civil case on the claim of Zhanakbaeva A.A. to Zhakesh E.T. for establishing paternity, collecting alimony for the maintenance of a child and monetary expenses for their maintenance during the prenatal period and until the child reaches the age of three.

      The disputing parties are not legally married. Ye.T. Zhakesh voluntarily did not recognize his paternity in relation to the child and does not provide financial support to the child and his mother. Therefore, the plaintiff appealed to the court with the specified claims with reference to paragraph 5 of Article 47 of the Code. She insists on being provided with maintenance by the defendant until the common child reaches the age of three, by analogy with articles 147 and 148 of the Code.

      Having examined the materials of the civil case, the interdistrict court found infringement of human and civil rights enshrined in the Constitution of the Republic of Kazakhstan in connection with the contradiction of paragraph 5 of Article 47 of the Code, paragraph 2 of Article 14 and paragraphs 1 and 2 of Article 27 of the Constitution of the Republic of Kazakhstan.

      Therefore, the court, in accordance with article 78 of the Constitution, suspended the civil case and appealed to the Constitutional Council with a motion declaring unconstitutional paragraph 5 of Article 47 of the Code regarding the limitation of the period of financial support for a woman who gave birth to a child out of wedlock, prenatal and postpartum periods.

     When verifying the constitutionality of paragraph 5 of Article 47 of the Code, the Constitutional Council proceeds from the following.

In accordance with paragraph 1 of Article 1 of the Constitution, the Republic of Kazakhstan asserts itself ... as a social state, the highest values of which are man, his life, rights and freedoms.

     It follows from the content of the said provision of Section I that Kazakhstan intends to develop as a state that undertakes to create conditions for a decent life for its citizens and the free development of the individual, adequate to the capabilities of the state. It is disclosed in various provisions of the Basic Law of the country, such as: citizens are guaranteed social security by age, in case of illness, disability, loss of breadwinner and for other legitimate reasons, the creation of additional forms of social security and charity are encouraged (article 28); State protection of marriage and family, motherhood, fatherhood and childhood (paragraph 1 of Article 27) (normative resolutions of the Constitutional Council of December 21, 2001, No. 18/2, April 20, 2004, No. 3).

      The final decisions of the Constitutional Council have repeatedly stressed that the elevation of a particular type of rights or freedoms to the constitutional level and the declaration of its guarantee in the Constitution means that the State assumes the responsibility to ensure the implementation of these rights and freedoms. Recognizing them as the highest value implies that the state has no more important task than taking care of a person and his material well-being. The State is obliged to create all conditions depending on it for a decent human existence (Normative Resolutions No. 3/2 of March 12, 1999, No. 3 of April 20, 2004, No. 3 of April 29, 2005, No. 4 of July 1, 2005, No. 5 of May 28, 2007).

According to the Constitution, motherhood and childhood, as well as marriage, family, and fatherhood are protected by the State (article 27, paragraph 1).

      The normative resolution of the Constitutional Council of May 18, 2015 No. 3 clarified that these provisions of the Constitution lay down the socio-economic and political-legal foundations of a comprehensive system of child protection, as an inviolable constitutional value, for the subsequent consolidation and regulation in sectoral legislation of the special legal status of children, their rights and freedoms, guarantees of their implementation.

     Taking care of children and their upbringing is the natural right and duty of parents (paragraph 2 of article 27 of the Constitution).

     As a constitutional provision, it implies the conscientious performance of parental functions and, in interaction with the noted constitutional norms, determines the emergence of special legal relations, the content of which is the duties of parents and the corresponding rights of children, and assumes that the infringement of the rights of the child is incompatible with the very nature of this social value.

     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 established that motherhood and infancy give the right to special care and assistance. All children born in or out of wedlock must enjoy the same social protection (article 25, paragraph 2).

      The International Covenant on Economic, Social and Cultural Rights, adopted by the United Nations General Assembly on December 16, 1966 and ratified by the Law of the Republic of Kazakhstan dated November 21, 2005 No. 87, stipulates that special protection should be provided to mothers for a reasonable period before and after childbirth. Special protection and assistance measures should be taken for all children and adolescents, without discrimination of any kind based on family origin or other grounds (paragraphs 2 and 3 of article 10).

      According to the Convention on the Rights of the Child (adopted by the United Nations General Assembly on November 20, 1989, ratified by Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994 No. 77-XIII) The new priority is given to the best interests of the child. The Participating States recognize the right of every child to a standard of living adequate for the physical, mental, spiritual, moral and social development of the child (art. 3, para. 1, art. 27, para. 1).

The Constitution and the legislation of the Republic of Kazakhstan based on it and international legal acts are based on the equality of the rights of children, regardless of their origin, the status of the child, his parents and any other circumstances. The updated Law of the Republic of Kazakhstan dated August 8, 2002 No. 345 "On the Rights of the Child in the Republic of Kazakhstan" establishes the principle of equal rights of children, equal and comprehensive protection of children born both in and out of marriage (article 4).

      Thus, regarding the subject of the court's appeal, the Constitutional Council believes that the constitutional goals of the social policy of the Republic of Kazakhstan arising from articles 1, 12 and 27 of the Basic Law are interrelated, complex and aimed at creating conditions that guarantee the full-fledged physical, moral, spiritual and mental development of children, including through state support for the family, motherhood and childhood, as well as ensuring that parents fulfill their responsibilities for the care and upbringing of children.

In order to specify the above provisions of the Constitution and international legal acts, the Code establishes the principles of marriage and family legislation (paragraph 2 of article 2). On their basis, the rights and obligations, property and personal non-property relations between family members are determined: spouses, parents and children, and in cases and within the limits provided for by the marriage and family legislation of the Republic of Kazakhstan, also between other relatives and other persons (subparagraph 1) of Article 3 of the Code).

      By virtue of subparagraphs 1) and 7) of paragraph 3 of Article 61 of the Basic Law, the determination of the procedure, conditions and amount of alimony payments by an able-bodied parent to his child or his mother is within the competence of the Parliament of the Republic of Kazakhstan. He is authorized in the sectoral legislation to establish appropriate effective legal mechanisms that guarantee the priority protection of the rights and interests of children and other persons on whom the well-being of the child depends. At the same time, the legislator has the right to determine specific types and conditions for receiving social compensation and benefits, as well as to differentiate citizens' rights according to socially justified criteria (normative resolution of the Constitutional Council of April 29, 2005 No. 3).

      According to paragraph 5 of Article 47 of the Code, if the authenticity of a man's paternity is established, the mother of the child has the right to demand from him in court the appropriate funds for her maintenance during the prenatal and postpartum periods. Upon receipt of such claims, the court is authorized to determine the amount of funds and the frequency of payments based on the financial and marital status and other interests of the parties.

     The Constitutional Council believes that collecting money from the father of a child for the maintenance of a woman, including an unmarried woman, in connection with their conception and birth of a child together, is one of the ways to implement the constitutional provisions on the protection of motherhood and childhood, as well as ensuring the fulfillment of parental responsibilities for the care and upbringing of children.. During the prenatal and subsequent period, during which the formation, birth and development of the baby take place, both the child and his mother, who cares for him, regardless of her marital status, need special protection, including financial support.

     Due to the natural laws of nature, during pregnancy and in the first years of children's life, it is impossible to consider the interests of the child in isolation from his mother. The main guarantor of the child's interests during this period is his mother, who is able to meet the child's initial life needs, and for the mother, the child's needs are paramount and all her efforts are aimed at ensuring proper care for him.

     At this important stage, it is necessary to ensure adequate protection of the rights and legitimate interests of the mother and child, for whom regular maintenance can be one of the main sources of livelihood.

      In turn, this implies the establishment of effective legal mechanisms that would maximize the preservation of the necessary standard of living for both the child and the mother caring for him, who are in a socially vulnerable situation in relation to the male father of the child.

     The legal norm challenged by the court affects the essential interests of the mother and the child, as it establishes, on essentially similar grounds, a lower amount of maintenance for an unmarried woman compared to a married mother. The Code establishes increased measures of financial support from spouses or former spouses in relation to the latter (subparagraph 2) of paragraph 2 of Article 147, subparagraph 1) of paragraph 1 of Article 148 of the Code). It also provides for longer periods for spouses (former spouses) to receive alimony.

     The Constitutional Council considers that the differentiation of a woman's right to receive maintenance from a man during her pregnancy, the birth of a child and later, depending on the presence or absence of marital relations between them, is related to the implementation by the State of its obligations to protect the institution of a family based on marriage.

      Thus, paragraph 5 of article 47 of the Code is not discriminatory and does not contradict paragraph 2 of article 14 and paragraphs 1 and 2 of Article 27 of the Basic Law, as it pursues constitutionally significant values and goals for the protection of marriage and family, motherhood and childhood, as well as the fulfillment of constitutional duties by parents.

Recognizing the constitutionality of paragraph 5 of Article 47 of the Code, the Constitutional Council finds it insufficient to use the constitutional and legal meaning and potential of the Basic Law in the legislative provisions under consideration in coordinating the rights and duties of the father, as well as those in need of special protection of the mother and child.

      In addition, legislation should define the content of the concepts of "prenatal period" and "postpartum period" provided for in paragraph 5 of Article 47 of the Code and their time frames.

      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).

     In this regard, the Constitutional Council agrees with the opinion of a number of participants in the constitutional proceedings that, in order to best ensure the interests of the mother and child, whose rights are affected by the provision in question of paragraph 5 of Article 47 of the Code, appropriate legislative measures are appropriate aimed at maximizing the harmonization of measures of state protection of constitutional values, improving marriage and family legislation and unification of the special terminology used in it.

      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 No. 2737 "On the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan

      Decides:

To recognize paragraph 5 of Article 47 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" as corresponding to the Constitution of the Republic of Kazakhstan.

To recommend to the Government of the Republic of Kazakhstan, in order to better ensure the rights and freedoms of mother and child, to consider initiating amendments to the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage and Family" 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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