kazruseng
Officially interpretetions of the standarts

















Resolution No. 10 of 30th January 2003 the Constitutional Council of the Republic of Kazakhstan

Concerning the Official Interpretation of Paragraph 4 of Article 52, Paragraph 5 of Article 71, paragraph 2 of Article 79, Paragraph 3 of Article 83 and Paragraph 2 of Article 15 of the Republic of Kazakhstan Constitution

The Constitutional Council of the Republic of Kazakhstan represented by Chairman Yu. A. Khitrin, Council Members Kh. A. Abishev, K. Zh. Baltabaev, S. F. Bychkova, S. F. Esenzhanov, A. K. Kotov, and K. A. Omarkhanov, with the participation of: representative of the petitioner, Republic Parliament Mazhilis Deputy S. A. Abdrakhmanov, Republic Parliament Mazhilis Deputies E. A. Abylkasymov, V. Ya. Zemlyanov, V. N. Kotovich, Judge of the Supreme Court of the Republic Zh. H. Baishev, Deputy Attorney General of the Republic, A. K. Daulbaev, Member of the Central Electoral Commission of the Republic V. K. Foos, Vice Minister of Justice of the Republic R. Sh. Shamsutdinov, experts: I. Sh. Borchashvily, head of the chair for criminal law and criminology of the B. Beysenov Karaganda Law Institute of the Ministry of Internal Affairs of the Republic, doctor of legal science, professor M. Ch. Kogamov, head of the Financial Police Academy, professor, has considered in its open session a petition from the group of deputies of the Republic of Kazakhstan Parliament for the official interpretation of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79, paragraph 3 of Article 83 and paragraph 2 of Article 15 of the Republic of Kazakhstan Constitution.
Upon examining the materials available, hearing the speaker the member of the Constitutional Council Kh. A. Abishev, speeches of the representative of petitioners and members of the session, the Constitutional Council of the Republic of Kazakhstan established the following:
That a group of deputies of the Republic Parliament petitioned to the Constitutional Council of the Republic of Kazakhstan for the official interpretation of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79, paragraph 3 of Article 83 and paragraph 2 of Article 15 of the Republic of Kazakhstan Constitution. The petitioner requests to explain the rules of said Articles of the Constitution from the point of view of the following questions:
1. Should one understand the words "grave crimes" used in the provisions of the Constitution, as the gravest category of crimes in the Criminal Code which is in effect at present.
2. Should one understand the words "especially grave crimes" used in paragraph 2 of Article 15 of the Constitution as a category of crimes from amongst grave crimes for the commission of which the capital punishment the death penalty may be prescribed in accordance with the current Criminal Code.
3. Do said provisions of the Constitution provide for the obligatory approval of relevant authorities in the case of changes in the assessment of acts of the person whose inviolability is fixed by the Constitution, who was previously held responsible through the criminal procedure and detained on charges of committing a grave crime.
In interpreting the rules of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79, paragraph 3 of Article 83 and paragraph 2 of Article 15 of the Republic of the Kazakhstan Constitution, the Constitutional Council of the Republic of Kazakhstan, in respect of the questions set in the petition, emanates from the following.
1. It ensues from the rules of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79, paragraph 3 of Article 83 and paragraph 2 of Article 15 of the Constitution, that crimes are subdivided into grave and especially grave crimes. The classification and definition of said categories are within the scope of cirminal laws.
It follows from the above constitutional rules that of the categories mentioned therein, especially grave crimes represent of the greatest degree of public danger.
The provisions of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79 and paragraph 3 of Article 83 of the Constitution establish that the approval of the relevant state authorities for the application of detention, performance of bringing, prescription of administrative punishment measures which are imposed through the judicial procedure, holding responsible through the criminal procedure is not required in the case of commission of a grave crime.
The mentioning of the "grave crime" category should be understood as establishing of a level of public danger with regard to a crime, meaning that in the case of commission by a person of crimes of a lesser gravity than grave crimes, the approval of the relevant authorities is obligatory and vice versa, it is not required in all cases of commission of grave crimes and maximum gravity crimes which are especially grave crimes.
2. In interpreting paragraph 2 of Article 15 of the Constitution one should emanate from its meaning and the context of that provision in the structure of the Constitution.
In paragraph 2 of Article 15 placed in Section II of the Constitution "Individual and Citizen" it is specified that no one has the right to arbitrarily deprive an individual of his life. The death penalty is established by the law as an exceptional measure of punishment for especially grave crimes with the granting to the sentenced individual of the right to petition for amnesty.
The provision on the exceptional measure of punishment should be recognised as restrictive one, since it only applies to especially grave crimes, and not to crimes of other degrees of gravity. Specific compositions of grave crimes for which the death penalty may be prescribed, are defined by the criminal laws. In that respect, for especially grave crimes the law may establish other punishments aside from the death penalty.
3. In the case of changes in the re-assessment of an act from a grave or especially grave crime to a crime of a lesser degree, committed by a person whose inviolability is fised in the Constitution, in whose regard no approval was sought from the relevant state authorities, the compliance with the rules concerning the procedure for deprivation of inviolability in the case of detention and holding responsible through the criminal procedure should be deemed obligatory by virtue of requirements of paragrah 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79 and paragraph 3 of Article 83 of the Constitution.
The Constitutional Council believes that the procedure for the application of detention and the meaning of "holding responsible through the criminal procedure" as well as regulation of issues associated therewith are subject to regulation by the law.
On the basis of the above and guided by subparagraph 4) of paragraph 1 of Article 72 of the Republic of Kazakhstan Constitution, Article 1, subparagraph 1) of paragraph 3 of Article 17, Articles 31-33 and 37, subparagraph 2) of paragraph 1 of Article 41 of the Edict of the President of the Republic of Kazakhstan, having the force of a constitutional law, "Concerning the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan, with regard to the subject matter of the petition resolves as follows:
1. That the paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79, paragraph 3 of Article 83 and paragrap h2 of Article 15 of the Republic of Kazakhstan Constitution contains the categories "grave crimes" and "espeically grave crimes". It ensues from the provisions of the Republic of Kazakhstan Constitution, that by the nature and degree of public danger, especially grave crimes are the most dangerous.
The categorisation of crimes is within the scope of the criminal laws.
2. That the paragraph 2 of Article 15 of the Republic of Kazakhstan Constitution with regard to "death penalty is established by the law as an exceptional measure of punishment for especially grave crimes" should be understood as a restriction for the legislative establishment of death penalty, which is provided for in cases of especially grave crimes, and not for other crimes of a lesser gravity. In this respect, the law may provide other punishments, aside from death penalty, for grave crimes.
3. That the procedure for deprivation of unviolability, as established in paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79 and paragraph 3 of Article 83 of the Republic of Kazakhstan Constitution, also envisages its observance in the case of re-assessment of acts of a person where the compliance with said constitutional requirements is required in cases of detention and holding responsible through the criminal procedure.
It ensues from the meaning of rules of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79 and paragraph 3 of Article 83, that the definition of the procedure for the application of detention and the meaning of "holding responsible through the criminal procedure" is within the scope of regulation of the law.
4. That in accordance with paragraph 3 of Article 74 of the Republic of Kazakhstan Constitution, a resolution shall enter into force from the date of its adoption and it shall not be subject to appeal, it shall be obligatory in the entire territory of the Republic, and it shall be final, notwithstanding the case specified by paragraph 4 of Article 73 of the Republic of Kazakhstan Constitution.
5. That this Resolution shall be published in the Kazakh and Russian languages in official publications of the Republic.


Chairman of the Constitutional
Council of the Republic of Kazakhstan
Yu. Khitrin
 
back   top   main home