RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of April 13, 2000 No. 2/2

About official interpretation of Item 3 of article 6 of the Constitution of the Republic of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the chairman Kim Yu. A., members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A. E., Kotova A. K., Omarkhanova K. A. and Shopina V. D. with participation of the representative of the subject of the address - the deputy of Parliament of the Republic of Kazakhstan Esimkhanov S. O. - considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of article 6 of the Constitution of the Republic of Kazakhstan.

Having studied the available materials, having heard speakers - members of the Constitutional Council of Kotov A. K. and Omarkhanova K. A., speeches of the representative of the subject of the address and invited, and also having studied the conclusion of the independent specialist - the chairman of expert and methodical council of Forming of Tax Culture fund, Candidate of Law Sciences Porokhov E. V., the Constitutional Council of the Republic of Kazakhstan established:

On March 14, 2000 in the Constitutional Council of the Republic of Kazakhstan the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Item 3 of article 6 of the Constitution arrived. Acceptance on January 12, 2000 by the Government of the Republic of Kazakhstan of the resolution N53 "About some questions of the Aksess Industries, INK. company which to Athlete Aksess Komir limited liability partnership established number of the privileges connected with registration of the right of permanent land use, collection of payment for use of the earth and for environmental pollution was the cause for the address. According to deputies, transfer of Bogatyr Aksess Komir LLP of the rights to the parcel of land on which there is property (real estate) of the Aksess Industries, INK. company will not be approved with requirements of Items 1 and 3 of article 6 of the Constitution of the republic. They consider that the above-mentioned government act breaks the land use right mode established by the law and based on the Constitution.

Deputies of Parliament in the address ask to give interpretation of Item 3 of Article 6 and other regulations of the Constitution of the Republic of Kazakhstan in relation to the specified situation.

1. The constitutional Council does not connect official interpretation of the relevant standards of the Constitution with assessment of constitutionality and legality of the order of the Government of the republic of January 12, 2000 N 53, as it does not enter its competence.

At the same time, in view of that legal regulation of the relations of property and land relations in Kazakhstan follows from the general beginnings and regulations of the Constitution of the republic and the relevant laws and legal acts equal to them based on them on legal force which application is interconnected and extends to all public relations and situations such, Constitutional Advice finds it possible to give systematic interpretation of Item 3 of Article 6 and other integrated Constitution regulations.

2. By Item 3 of article 6 of the Constitution it is determined that "the earth and its subsoil, waters, plant and animal life, other natural resources are in state-owned property. The earth can be also in private property on the bases, conditions and in the limits established by the law". This constitutional provision means that the legal regime of property, condition and limits of implementation of its competences by the owner (business entity) in relation to the earth as to object of this regulation of the Constitution, are determined by the law or the legal act of equal legal force. Such act in relation to the relations of legal regulation which became subject of the address is the Presidential decree of the Republic of Kazakhstan which is valid the law, "About the earth" of December 22, 1995 N2717.

The legal act "About the Earth" is based on the general beginnings of the Constitution for development of the relations of property in Kazakhstan as that:

"the property obliges, use of it shall serve at the same time the public benefit" (Item 2 of Article 6) and "implementation of rights and freedoms of man and citizen shall not violate the rights and freedoms of other persons..." (Item 5 of Article 12). It concretizes these provisions as inadmissibility of abuse of land entitlements: "implementation by subjects of land relations of the rights belonging to them shall not do harm to the earth as natural object, the surrounding environment, and also the rights and lawful interests of other persons" (Article 9 of the Presidential decree of the Republic of Kazakhstan, the valid law, "About the earth").

In Item 3 of article 6 of the Constitution it is necessary to understand set of the social and legal premises enshrined in the above-mentioned legal act providing legitimacy of specific decisions of executive bodies concerning land use concerning business entities and physical persons as the conditions established by the law for legal regimes of land use.

The condition of Article 18 of the Presidential decree of the Republic of Kazakhstan, the valid law, "About the earth" - about inseparability from each other the rights to the parcel of land and the rights to the buildings located on it or constructions, in particular, concerns to those. This condition means legal prohibition on alienation or provision of the parcel of land separately from the immovable property located on it, than the constitutional principle of the public benefit of property and civil responsibility of single business entity is provided.

Other legal criterion of determination of possible legal regime of land use for specific type of business entities is the condition provided in Article 40 of the Presidential decree of the Republic of Kazakhstan, the valid law, "About the earth" about impossibility of provision of the right of permanent land use to foreign land users. Therefore, only the right of temporary land use under lease of the parcel of land with the corresponding rent for the earth can be granted to them.

Exit out of the limits set by the Constitution and based on its provisions by the legal act "About the Earth" and also non-compliance with the specific conditions of provision of the rights of land use provided by the last to business entities or physical persons from the executive body performing normative regulation of land relations bylaws means exceeding of legal boundaries of impact on these relations. As a result it attracts violation of the mode of constitutionality. According to Item 1 of article 4 of the Constitution the laws and other regulatory legal acts which are not corresponding to it are not the law in force of the Republic of Kazakhstan. In Item 3 of article 69 of the Constitution it is determined that the orders of the Government and orders of the Prime Minister shall not contradict the Constitution, legal acts, decrees and orders of the President of the republic.

3. According to Item 1 of article 6 of the Constitution "the Republic of Kazakhstan are recognized and are similarly protected the state-owned and private property". The resolution of normative nature of November 3, 1999 N19/2 gave the Constitutional Advice of the Republic of Kazakhstan to this provision official interpretation. In relation to the situation specified in the address it means that the state guarantees equal legal opportunities of protection and recovery of the violated rights not only to subjects of both patterns of ownership, but also and in the relations among themselves of business entities of one pattern of ownership and one type of economic activity. In the specific legal relationship permitted or allowed for them by the legislation, such business entities shall submit to the same legal regime.

Based on stated and the subitem 4) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan and being guided by the subitem 1) of Item 3 of Article 17, Articles 32, of 33, 37 and the subitem 2) of Item 1 of Article 41 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan decides:

1. Item 3 of article 6 of the Constitution of the Republic of Kazakhstan in relation to subject of the address should be understood so that these constitutional provisions establish the general obligatory beginnings of land legal relationship in the Republic of Kazakhstan which are regulated by the laws based on them and equal to them on legal force legal acts. Disaggregation of their regulations bylaws is possible only on the bases, conditions and in the limits established by these laws and equal it on legal force legal acts.

2. According to Item 3 of article 74 of the Constitution of the Republic of Kazakhstan the resolution becomes effective from the date of its acceptance, is obligatory in all territory of the republic, final and to appeal is not subject taking into account case, stipulated in Item 4 articles 73 of the Constitution of the Republic of Kazakhstan.

3. Publish this resolution in the Kazakh and Russian languages in official republican printing publications.

Due to the adoption of the resolution of the Constitutional Council of RK the department of government information made the following explanation.

Attracts attention that in the course of adoption of the resolution the Constitutional Council specified that it does not connect official interpretation of the relevant standards of the Constitution with assessment of constitutionality and legality of the order of the Government of January 12, 2000 N 53, as it does not enter its competence. In particular, in descriptive part of the resolution by the Constitutional Council it is specified the sequence and legitimacy of decisions of executive bodies which owing to requirements of Article 18 of the Presidential decree of the Republic of Kazakhstan, the valid law, "About the earth" provide inseparability from each other the rights to the parcel of land and the rights to the buildings located on it or constructions.

The assets of Bogatyr and Stepnoy coal mines acquired according to the privatization purchase and sale agreement the American company "Aksess Industries, INK." are inseparably linked with the earth and are subject to registration as it stipulated in Item the first the above-stated order of the Government. The company determined the legal successor Bogatyr Aksess Komir LLP that is allowed by conditions of the privatization agreement and which according to the submitted documents is national land user" the Constitutional Council according to article 40 of the above-named Decree reasonably specified N impossibility provision of the right of permanent land use to foreign land users. For the same reason the order of the Government ensuring registration of the right of land use not on, the foreign investor is entrusted to the akim, and on the national land user which Bogatyr Aksess Komir LLP is.

The government of the Republic of Kazakhstan intends to observe all earlier undertaken obligations under the signed contracts with foreign investors and to solve the arising problems taking into account interests of the region.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info