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On Official Construction of the Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 5.

Resolution of the Constitutional Council of the Republic of Kazakhstan No. 5, 12 May, 2003

The Constitutional Council of the Republic of Kazakhstan composed of: the Chairman Khitrin Yu.A., members of the Council Abishev Kh.A., Baltabayev K.Zh., Bychkova S.F., Esenzhanov А., Kotov А.К. and Omarkhanov К.А. with the representative of the subject of application - Parliament of the Republic - Senate Deputy Zhumabayev E.Zh., the judge of the Supreme Court of the Republic Baishev Zh.N., Deputy General Prosecutor Daulbayev A.K., member of the Central Election Committee of the Republic Foos V.K., Vice-Minister of Justice of the Republic Raev M.K., have considered the application of the Chairman of the Parliament Senate about the official construction of the Constitution of the Republic, Article 52, Paragraphs 3 and 5 at the open sitting of the Constitutional Council.
Having examined available materials and listened to the reporter - member of the Constitutional Council Kotov A.K., statements of the representative of the subject of application, participants of the sitting and findings of the expert - Candidate of Law, Senior Lecturer of Kazakh Arts and Law University - Kapsalyamov K.Zh., the Constitutional Council of the Republic of Kazakhstan has established:
The Constitutional Council of the Republic of Kazakhstan has accepted for constitutional consideration the application of the Chairman of the Parliament Senate of the Republic of Kazakhstan on the official construction of the Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 4, asking for the following questions to be clarified:
1) What is the difference of the notions "the powers of the deputy shall be terminated" and "the deputy shall be deprived of his mandate" as to their content and legal consequences?
2) Does the Parliament have the right to make a decision to deprive or not to deprive a deputy of his mandate in case there is a valid censure in his respect?
When constructing the Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 5, the Constitutional Council bases itself on the following principles.
1. The Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 5, was construed by the Constitutional Council of the Republic of Kazakhstan in its Resolutions No.7/2, 17 May, 2001, on account of the application of a group of Parliament Deputies and No. 19/2 dated 13 December, 2001 on account of the Chairman of the Parliament Mazhilis of the Republic of Kazakhstan.
They referred to the grounds for termination of the powers of a Parliament Deputy, established by the Constitution, Article 52, Paragraphs 3 and 5, and other grounds arising out of the propositions. The Resolutions remain valid.
However, the questions about the content of notions "the powers of the deputy shall be terminated" and "the deputy shall be deprived of his mandate" applied in the Constitution, Article 52, Paragraphs 3 and 5, and about legal consequences of the resolutions of the Parliament Houses adopted in such cases have not been raised in the aforementioned applications and therefore were not construed in the Resolutions of the Constitutional Council.
According to the content of the Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 5, and of other grounds for loss of deputy's powers arising from other propositions of the Constitution in majority of cases it is invalidation of powers in the form of termination that is dealt with. The constitution apply the term "shall be deprived of his mandate" in respect of the following grounds: being duly convicted by a court of law and the case of establishing permanent residence outside the Republic of Kazakhstan.
Termination of the powers of a Parliament deputy and depriving him of his mandate is carried out by the Parliament House on the basis of the Constitution, Article 52, Paragraphs 3 and 5, Resolutions of the Constitutional Council No. 7/2 dated 17 May, 2001 and No. 19/2 of 13 December, 2001 by the same legal act - a proper Senate or Mazhilis Resolution in respect of a certain deputy.
The resolutions of the Parliament Houses about termination of deputy's powers and depriving a deputy of his mandate differ not in consequences of their passing but in the nature of grounds that resulted in removal from the Parliament House. For the most part loss of deputy's powers in the form of their termination by the resolution of Parliament is the result of objective circumstances.
Loss of deputy's mandate in the form of depriving a deputy of his mandate is the consequence of his guilt, established by the valid sentence of a court of law or the consequence of the fact of establishing permanent residence outside the Republic of Kazakhstan by the deputy, confirmed by the statement of the Central Election Committee.
The breach of the deputy mandate incompatibility rule set forth in Article 52, Paragraph 3 is recognized in the Constitution as a delict of lower guilt degree than that of entailing a sentence in respect of him. As a consequence a Parliament deputy loses his mandate on the basis of the Constitution, Article 52, Paragraph 5.
Like consequences were provided for by the Constitution for a person's establishing permanent residence outside Kazakhstan Republic being elected into Parliament, because as a result of it the steady link with the representative body shall be cut. In the opinion of the Council, in such cases a deputy's neglect of electors' trust and people's interest is detected by the Constitution. Negative attitude of the Constitution to such cases and its purpose to prevent them have resulted in providing by it mandate in Article 52, Paragraph 5, of such a form of deputy's loss of powers as depriving him of his mandate.
Passing of a resolution on depriving a Parliament deputy of his mandate or on termination of powers of a Parliament deputy on proper constitutional grounds shall have the same legal consequences for the deputy - his legal loss of deputy's mandate.
Making decision of a deputy's loss of his powers is referred according to the meaning of Subparagraph 4) of Article 57 of the Constitution to the independent competence of each of the Parliament Houses and is covered by their warrant - "shall terminate the powers of the deputies of Houses…"
According to Paragraph 4 of Article 24 of a Constitutional Law "About Parliament of the Republic of Kazakhstan and status of its Deputies" in redaction of 6 May, 1999 a Parliament House shall make a decision to terminate deputy's powers or to deprive a deputy of his mandate on account of the statement of the Central Election Committee of the Republic by the majority if votes from the total number of its deputies.
2. In case there is a valid verdict of a court of law in respect of a Parliament deputy, failure by a House to pass a resolution on depriving the deputy of his mandate shall not imply legally making a decision not to deprive him of his deputy's powers
In this respect the Constitution does not allow that such deputy may not be deprived of his mandate by the House at discretion of deputies. The legal incompatibility of the deputy's mandate with a valid verdict of a court of law is unambiguously fixed by the Constitution in Paragraph 5 of Article 52. It runs: "a Parliament deputy shall be deprived of his mandate when a verdict of a court of law in his the Republic of Kazakhstan in his respect comes into force". At the same time it does not matter whether the relative Parliament House gave its consent for convicting the deputy, or such one was not required under the Constitution.
The proposition of Paragraph 5 of Article 52 is of an imperative nature. Reference to the legal fact of entering into force of a verdict of a court of law in respect of a deputy shall result in the unconditional loss of deputy's powers. A deputy shall be deprived of his mandate at the time the verdict of the court of law takes its legal effect. The legal fact of coming into force of a verdict of a court in respect of a deputy shall be grounds for that the House pass a resolution to deprive him of his mandate irrespective of the type if punishment imposed on him for the criminal offence. Imposition by the court of a conditional punishment or of a penalty without imprisonment as well as indemnification of the convict from the responsibility or punishment shall not change the nature of the proposition of Paragraph 5, Article 52, of the Constitution. This proposition does not indicate the type verdict against the deputy which shall be the grounds for depriving him of the mandate. All types of verdicts of courts of law against a deputy are implied by Paragraph 5 of Article 52 of the Constitution.
The judgement of a court is binding on the whole territory of the Republic according to Paragraph 1 of Article 76 of the Constitution. Presumption of truth of the verdict that has taken effect does not depend on separate state authorities or officials. The verdict shall be binding for the Parliament Houses too. By passing a resolution about depriving the deputy of his mandate on the basis of a valid verdict of a court against him a House shall recognize the fact of loss and verify the extinction of the power of deputy. This is required legally for establishing the moment from which the term within which the Central Election Committee of the Republic is obliged to assign the election of a new deputy shall begin (Paragraph 4 of Article 69, Paragraph 4 of Article 85 of the Constitutional Law "On the Elections in the Republic of Kazakhstan" in redaction of 6 May, 1999).
If a House fails to make a decision to deprive a deputy of his mandate, it shall not imply preservation or vindication of deputy's powers in connection with coming into force of a verdict against him.
Evasion of the House from passing of the resolution about depriving the deputy of his mandate on the grounds, specified in the Constitution of the Republic of Kazakhstan, Article 52, Paragraph 5, shall be encumbrance for execution of requirements of Subparagraph 13) of Paragraph 1 of Article 12 of the Constitutional Law "On the Elections in the Republic of Kazakhstan" of calling elections of Parliament deputies instead of those left by the Central Election Committee of the Republic of Kazakhstan.
Thus, the existence of the grounds, specified in the Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 5, and of other grounds for loss of deputy's powers arising out of its regulations shall result in that the Houses of Parliament of the Republic of Kazakhstan pass proper resolutions about termination of the powers of Parliament deputy and about depriving him of his powers according to Resolutions of the Constitutional Council of the Republic of Kazakhstan No. 7/2 dated 17 May, 2001jand No. 19/2 of 13 December 2001..
Therefore, being guided by Subparagraph 4) of Paragraph 1 of Article 72 of the Constitution of the Republic of Kazakhstan and Article 1; Subparagraph 1 of Paragraph 3 of Article 17 and Articles 32 , 33 , 37 and Subparagraph 2) of Paragraph 1 of Article 41 of the Decree of the President of the Republic of Kazakhstan having the force of a Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan" the Constitutional Council of the Republic of Kazakhstan decrees that:
1. "Termination of powers of a Parliament deputy" and "depriving a deputy of his mandate" provided for by the Constitution of the Republic of Kazakhstan, Article 52, Paragraphs 3 and 5, should be understood as loss of deputy's powers by a member of Parliament established by the Basic Law and differing in the nature of the grounds causing them.
The legal consequences of Resolutions of Parliament Houses of the Republic of Kazakhstan concerning these questions shall be the recognition of the deputy's mandate as cancelled, from the moment of which the constitutional term for calling election of a new deputy instead of that left shall begin.
2. Paragraph 5 of Article 52 of the Constitution of the Republic of Kazakhstan should mean that the existence of any verdict of a court of law in respect of a Parliament deputy shall result in that the House shall pass a resolution about depriving him of the mandate according to Paragraph 1 of Article 62 of the Constitution of the Republic of Kazakhstan. Failure to pass such a resolution shall not imply preservation or vindication of the deputy's powers.
3. According to the Constitution of the Republic of Kazakhstan, Article 84, Paragraph 3, the resolution should be effective from the date it was passed, shall be binding on the whole territory of the Republic of Kazakhstan and final taking into account the case specified in the Constitution of the Republic of Kazakhstan, Article 73, Paragraph .
4. This Resolution be published in Kazakh and in Russian languages in official republican printings. The Chairman of the Constitutional Council of the Republic of Kazakhstan.
 
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