KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE ANDR PROSPERITY UDC 342 LBC 67.400.1 К 26

Published under the program «Improving the Competitiveness of the Field of Culture and Art, Preserving, Studying and Popularizing ’s Cultural Heritage and Improving the Effectiveness of Archives Implementation», under the sub-program «Acquisition, Publication, and Dissemination of Socially Important Literature» of the Language Policy Committee of the Ministry of Culture and Sports of the Republic of Kazakhstan.

К 26 Kazakhstan way: constitutionalism, person, peace and prosperity / Collection of articles. Executive editor and author of the introduction Doctor of law, professor K.A. Mami – Nur-Sultan, 2020 – 384 p.

ISBN 978-601-7918-29-3

Proposed by the First President of the Republic of Kazakhstan – Elbasy N.A. Nazarbayev and adopted by the people of Kazakhstan, the current Constitution of the Republic of Kazakhstan opened the way for truly epoch- making changes in the country’s modern history. They were accompanied by fundamental changes in the political, economic, cultural and other spheres, modernization of the spiritual life of society and revision of the system of values. Being the embodiment of the will of the people, the Constitution over the years has become a powerful political and legal tool for consolidating the people of Kazakhstan into a Single Nation. This book contains articles reflecting the assessment by foreign experts of the role and significance of the Constitution of the Republic of Kazakhstan in the construction of modern Kazakhstan statehood, the processes of approval of the country’s standards of democracy, the principles of the rule of law and constitutionalism. The author’s team includes representatives of authoritative international organizations, heads of constitutional control bodies, well-known foreign state and public figures, and world-famous scientists. The publication will be useful for those involved in politics, legislation and law enforcement, legal practitioners, scientists and the general public.

UDC 342 LBC 67.400.1

ISBN 978-601-7918-29-3 © Constitutional Council of the Republic of Kazakhstan, 2020 © LLP Delovoi Mir Astana, 2020 © All rights reserved DEDICATED TO THE TWENTY-FIFTH ANNIVERSARY OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN 4 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY INTRODUCTION

n August 30, 2020 the 25th anniversary of the Constitution of the Republic of Kazakhstan is celebrated. The anniversary of the basic legal document – is the auspicious event in the life of the people of Kazakhstan. OThe Constitution, having finally determined the priorities and the form of the sovereign Kazakhstan, having incorporated the best legal traditions of the country and universal values, became a foundation creating new statehood, peace and confident upstream growth. The initiated by the First President of the Republic – Elbasy N.A. Nazarbayev and adopted by the people of Kazakhstan at the republican referendum, Constitution laid the legal basis for the comprehensive and consistent establishment of the Republic of Kazakhstan as the democratic, secular, legal and social state, the highest values of which are a person, his rights and freedoms. A quarter of a century in accordance with long-term policy documents huge work has been made on unleashing the potential of the Basic Law in all spheres of life, which have been reformed and are developing in the light of modern trends. As a result, the state, society, and every citizen of the country have changed. The high tempos of development, modernization of the system of the state management, globalization, the modern challenges, entailing the transformation in economy, politics, ideology, social sphere and other factors caused the conduction in Kazakhstan the constitutional reforms in 1998, 2007, 2017. INTRODUCTION 5

Each of them opened a new logical stage on the path of consistent development of society and state, creating a political and legal basis for comprehensive transformations in order to achieve the high goals set initially in the Strategy «Kazakhstan-2030», and after its implementation, in the Strategy «Kazakhstan-2050». The modern constitutional model of the Republic of Kazakhstan is based on progressive international experience in the development of constitutionalism, the establishment of the ideas of the rule of law, democratic governance and the protection of human and civil rights and freedoms. The regular stage in the evolution of Kazakhstan constitutionalism began in 2019. In 2019 the significant events took place in the Republic. The first process of smooth transmission of the supreme power has been made, the extraordinary presidential elections, on the results of which K. Tokayev has been elected a President of the Republic of Kazakhstan were hold. The transmission of the powers of the President of the state, amendments to the Constitution and the election of a new President of the state took place in a strict accordance with the requirements of the Constitution and Constitutional law of the Republic of Kazakhstan «On elections in the Republic of Kazakhstan». At present, the huge work is being accomplished on transformation of the political system, further democratization of the society, improving of the law-enforcement system and the principles of state management. By word and deed the power formula of the Head of state is being implemented gradually: strong plenipotentiary President, influential capable Parliament and accountable to people Government. Kazakhstan continues to purposefully pursue the course of faithful adherence to the letter and spirit of the Basic Law, which was declared at the dawn of independence. The activities of the Constitutional Council also contribute to improving the effectiveness of such state policy, the efforts of which are aimed at ensuring the strict implementation of the creative potential and requirements of the Basic Law in the current law and practice of its implementation. All this allows us to speak about the stability and irreversibility of the process of formation of a strong legal state in Kazakhstan, which is firmly set on the path of respect for individual rights and freedoms, the supremacy of the Constitution, and solving the most important issues of public life by democratic methods. The results achieved are positively evaluated both within the country and abroad. The international community perceives Kazakhstan as an equal, responsible and reliable partner, whose opinion is listened to at the highest level. The presidency of Kazakhstan in the United Nations Security Council, the election of the country’s Constitutional Council as the Chairman of the Eurasian Association of constitutional control bodies and the Association of Asian constitutional courts and equivalent institutions are clear evidence. This book includes the opinions and judgements of the eminent foreign state and public figures, and also acknowledged foreign scientists about the Constitution of the Republic of Kazakhstan and practice of its implementation, the extent of their correspondence to the universal international standards and, of course, their recommendations on actual issues of the further evolution of the national legal system. The present publication continues the book «Kazakhstan trend: from totalitarianism to democratic and legal state (view from the outside)». We express gratitude to each of the authors for the presented articles, comments and feedbacks, which make a major contribution to development of the world constitutionalism.

К.Mami, The Chairman of the Constitutional Council of the Republic of Kazakhstan I PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 8 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Lord WOOLF Chairman of the Court of the «Astana» International Financial Center WHEN INTRODUCING CONSTITUTIONAL CHANGE RECOGNISING THE NEED TO CATER FOR COMPLYING WITH THE RULE OF LAW

am grateful to contribute a short article for this publication which is being published to commemorate the 25th anniversary of the Constitution of the Republic of Kazakhstan. I am pleased to do this because for nearly three years now I have been engaged together with Christopher Campbell-HoltI to oversee the establishment of a Common Law Court in Nur-Sultan. That court has now been created and it is ready to play its allocated role as a dispute resolution centre primarily for the newly established Astana International Financial Centre (AIFC). It is partnered by the International Arbitration Centre (IAC). I am now Chief Justice of the Court and Barbara Dohmann, QC is the Chairman of the IAC. Christopher Campbell Holt is the PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 9

Chief Executive and Registrar of both bodies. Although both bodies are independent of each other, they have a common purpose in helping to ensure justice for those who are involved in or with the AIFC as required by the rule of law. This is fulfilling the vision of the First President, His Excellency, . The Governor, Dr. Kairat Kelimbetov, has overall responsibility for the whole project and in his Foreword to “A Vision of the AIFC Court” he admirably summarises its objectives in the following paragraphs: “Over the past years the Republic of Kazakhstan has engaged in numerous reforms aimed at diversification of the national economy and encouragement of foreign direct investments. A key driving role in constant institutional improvement and implementation of the “National Strategy – 2050” adopted by the President of the Republic of Kazakhstan, is played by The Plan of The Nation “100 Concrete Steps”. To date, one of the prominent achievements became the official launch of the AIFC aimed at reinforcing the growth of the economy, developing financial and ancillary services, and attracting regional and international investment. The primary objective of the AIFC is to establish a leading international financial centre aimed at development of capital markets, asset management, private banking, Islamic finance, financial technologies, and green finance. One of the main areas for development of these key directions is the dispute resolution system of the AIFC. Benchmarked against standards of leading international financial centres, the AIFC Court and the IAC provide a trustworthy, transparent and fair forum for resolving cases efficiently. The AIFC Court meets the expectations of the international business community by ensuring predictability of legal protection in a timely manner. “The existence of the rule of law is critical to the wellbeing of any society and its absence is a significant disadvantage to many aspects of a society. Such a centre will only succeed if the international community has confidence that justice provided will be effective and efficient. This means that the judges of the Court that are provided are undoubtedly impartial and fully qualified to administer and provide justice in the sphere in which the Court operates. As I have previously said, they are “among the most experienced 10 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY and distinguished judges from the common law world with global reputations for absolute independence, impartiality, integrity, and incorruptibility.” The ingredients of the rule of law are easy to state but difficult to achieve, especially if the timescale for their provision is limited. It helps if there is respect for the rule of law in the country in which justice is provided. While this may not at the time have been obvious, in the case of Nur-Sultan there were reasons why achieving recognition of the observance of rule of law in a newly-established court might not have been as difficult as would be expected, even if the court in question would not be operating in accord with the existing and traditional legal system of Kazakhstan. What was proposed is clearly not in accord with the original Constitution we are now celebrating. The terms of that Constitution had envisaged the traditional justice system of Kazakhstan, culminating in a Supreme Court. The court which the President envisaged was that referred to in the national strategy adopted by Kazakhstan in the Plan for the Nation (“A Hundred Concrete Steps”). It was aimed at reinforcing the growth of the economy and developing financial ancillary services, including attracting regional and international investment. It was to be based on the Common Law, it is quite alien to the model referred to in the original Constitution. There was therefore no alternative but to amend the Constitution to accommodate what is now proposed. Fortunately, the original Constitution contained a wide power in Article 91 to amend the Constitution so that the project could proceed. This was accepted and after appropriate consultation, a supplementary Constitution on the AIFC dated 7 December 2015 was passed into law. This was followed by specific amendments in March 2017. The intention was to ensure that Nur-Sultan, formerly known as Astana, would become a totally modern capital city and the successor to Almaty, with a thriving international commercial centre capable of serving not only Kazakhstan but the whole of the Eurasia region. Such a development must have at its core a first-class dispute resolution system to meet the needs of those who it is designed to support. The Court has to meet the expectations of the international business community by ensuring predictable legal protection in a timely manner. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 11

There were earlier models to help determine what was needed provided by Dubai, Singapore, Qatar, Hong Kong and Abu Dhabi. They were each carefully considered before deciding upon the model which should be adopted for Nur-Sultan to ensure that the system for the AIFC would meet the requirements of the rule of law. The Centre had to be entirely independent of the Executive and its judges appropriately equipped to resolve the classes of disputes which could be expected to come before the Court. They had to be qualified to apply the rules of procedure established for the Court and experienced in conducting litigation in accord with the latest Common Law principles. In addition, English would be the language of the Court. The eight judges in addition to myself who were selected are of sufficient quality to be described by the Governor as a “dream team”. Among their other qualities they each had previous experience of trying commercial cases in the High Court of England and Wales. Of further assistance was that for the EXPO 2017 a series of excellent buildings had been constructed which after the exhibition were available to be used for the AIFC Court and Arbitration Centre. For this purpose they required modification, but this has been carried out and they are now ideal for their intended use. On Tuesday 9 July 2019 both the Court and Arbitration Centre were officially opened by Kassym-Jomart Tokayev, the Second President of Kazakhstan. The fact that changes had to be made to the Constitution to enable the Court and the IAC to be established has underlined the democratic integrity of these novel institutions of Kazakhstan. The amendments have gone through the democratic processes in order to become law. This emphasises the acceptability of the reforms. This is also demonstrated by the close relationship that has been developed between the judiciary of the Supreme Court and AIFC Court. Although the AIFC Court and the IAC have been established, there was bound to be a lapse of time before a caseload could be established. The time lapse has enabled the IT and E systems which are required for the successful operation of the court and IAC to be fully installed after being carefully tested. 12 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

During the interim period when the Judges are not required to spend the majority of their time deciding cases, good use has been made of their experience to promote the education of students and other young lawyers. Their enthusiasm for the lectures, moots and mock trials involving the judges has been inspiring. It can be justifiably claimed that the introduction of these specialist bodies has been a valuable lesson as to the importance of the rule of law. The fact that the court has extremely wide rights of audience so that all lawyers with a professional or advocacy practice certificate anywhere around the world are able to register with the AIFC Court will expose Kazakhstan students and lawyers to developments from many other jurisdictions. I have no doubt that with the passage of time the Court and IAC will become testimony to the total commitment of the Republic of Kazakhstan and its legal institutions to the rule of law. They will be its standard bearer. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 13

Walter SCHWIMMER Secretary General of the Council of Europe (1999-2004), Deputy Chairman of the Dialogue of Civilizations Research Institute, Consultant on International Relations and European Affairs, Doctor of law 25TH ANNIVERSARY OF THE CONSTITUTION OF KAZAKHSTAN – SHOWING THE WAY TO A STRONG AND PLURALISTIC DEMOCRACY

hen the people of Kazakhstan adopted in a referendum on August 20, 1995, less than 4 years after gaining independence, it was an important step for the country. It drew the final line under a past of suppression and determination from outside. ItW was a document of self-determination of the Kazakh people and should show the way for the future of the country. It was also a document of transition after 70 years of Soviet rule in Kazakhstan. Many things were absolutely new. A free and independent civil society with active non-governmental organisations based on the freedom of association, speech and opinion did not exist in the and 14 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY the same applies for political parties and media. Four years in a country in transition were certainly too short for the emergence of such cornerstones of a pluralist democracy. So, when the new constitution granted fundamental rights to these institutions that was more a programme for the (medium term) future rather than already achieved results. Looking to the outstanding role that was played by the first president of the country, Nursultan Nazarbayev, for the independence, the positioning of the new republic in the international community and his ambition to lead the country into a bright future with peace and prosperity this is certainly mirrored in the 1995 Constitution. As a consequence, the constitution provides not only a presidential system but expects the incumbent to “determine the main direction of domestic and foreign policy”1. That restricts certainly the scope of other constitutional bodies such as government and parliament. It goes further than the position of the head of state in other presidential regimes and can be understood with regard to the transition and its needs. The more it was exactly important for the sake of the future of the nation that the new constitution was based on the principles of democracy, secularity, legality and social cohesion. These aims and the will to comply in particular with European standards and best practices were underlined by the fact that Kazakhstan became full member of the Council of Europe’s partial agreement “European Commission for Democracy through Law” - better known as the Venice Commission. The role of the Venice Commission is to provide legal advice to its member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law2. In addition, many articles are dedicated to human rights and their guaranty and recognition by the constitution as stipulated in Art.123. As a member of the United Nations the Republic of Kazakhstan is also committed to the Universal Declaration of Human Rights4. The Universal Declaration of Human Rights therefore can and will serve as reference text for the interpretation of

1 Art.40 para 1 of the Constitution of Kazakhstan 2 https://www.venice.coe.int/WebForms/members/countries.aspx?lang=EN 3 Art.12 to Art.24 4 https://www.un.org/en/universal-declaration-human-rights/ PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 15 specific human rights. Kazakhstan demonstrated its readiness for cooperation with UN human rights mechanisms as member of the UN Human Rights Council 2013 to 20155. Kazakhstan is not a member of the Council of Europe despite its geographical situation to some extend is similar to the Council members and Turkey and therefore it cannot become a party to the European Convention on Human Rights. However, would it be possible to use the European Convention and the jurisdiction of the European Court of Human Rights for interpretation too. The constitution that celebrates its 25th anniversary provides the people of Kazakhstan a good frame for the way into a pluralistic parliamentary democracy. What did not exist at the moment of its adoption should now become reality of an open society, strong civil society, with active and free NGOs and a pluralistic political landscape with parties representing the people of Kazakhstan.

5 https://news.un.org/en/story/2014/10/481602 16 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Aslan ABASHIDZE Member of the UN Committee on Economic, Social and Cultural Rights, Head of the Department of international law of the Law Institute of the Peoples’ Friendship University of Russia, Doctor of Law, professor, Honored lawyer of the Russian Federation THE REPUBLIC OF KAZAKHSTAN IS AN EXAMPLE OF PROGRESSIVE SUCCESSFUL DEVELOPMENT IN DOMESTIC AND FOREIGN POLICY

he Republic of Kazakhstan (ROK) is distinguished among the former Soviet republics by its progressive state-building, combining national and cultural specifics, mastering the best world experience, and active foreign policy implemented after independence. TThe government of ROK with a population of over 18 million people, which holds the 9th place in the world for its territory, almost 60% of which is desert / semi-desert, with no direct access to the ocean, however, have achieved remarkable performance in many fields of domestic and foreign policy, the economy and social sphere, a clear indicator of which is the high birth rate at a relatively low mortality rate with a simultaneous increase in the life PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 17 expectancy of the population. The Republic of Kazakhstan is an example of progressive successful development in domestic and foreign policy. Multi-ethnic and multi-confessional society, with about 130 ethnic groups, more than 70% Muslims, 25% Christians, live in harmony, the government at all levels pursues a reasonable policy based on the promotion of national cultural diversity, support and development of tolerance. In Kazakhstan, there are mosques and orthodox churches, catholic churches and jewish synagogues, protestant and buddhist temples. Therefore, it is quite natural that the country’s capital has become a permanent venue for Congresses of leaders of world and traditional , which is a significant contribution of Kazakhstan to the global dialogue of civilizations and strengthening relations between confessions. One of the specifics of public administration is the introduction ofthe structure of direct democracy in the power system in the person of the Assembly of people of Kazakhstan, endowed with a constitutional status, the main task of which is to ensure effective interaction of state bodies, organizations and civil society institutions in the field of inter-ethnic relations, creating favorable conditions for further strengthening of public consent and national unity 6. Today, the Assembly assists state bodies in countering manifestations of extremism and radicalism in society, and in forming a political and legal culture of citizens based on democratic norms. The Assembly ensures the integration of efforts of ethno-cultural associations, helps to revive, preserve and develop national cultures, languages and traditions of the people of Kazakhstan7. One of the most important directions of state policy in Kazakhstan is to create favorable conditions for the development of civil society institutions (political parties, trade unions and other public associations), which play a crucial role in the process of implementing the mechanism of democracy. Currently, more than 27 thousand public associations are registered in Kazakhstan as full-fledged subjects of social processes taking place in the

6 Law of the Republic of Kazakhstan «On Assembly of the Republic of Kazakhstan» of October 20, 2008 (with changes and additions for 27.04.2018) // https://online.zakon.kz/Document/?doc_ id=30352401 (Address of January 28, 2020). 7 To the Assembly of the people of Kazakhstan http://www.akorda.kz/ru/national_projects/assambleya- naroda-kazahstana (address of January 28 2020). 18 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY country, actively working in many spheres of society’s life8. The Republic of Kazakhstan, unlike many other former Soviet republics, not only avoided social upheavals and civil strife, it also showed an example of a peaceful transfer of power based on legal and transparent elections for a new President of the country, an evolutionary constitutional change that adequately meets the needs of social development and strengthening of the state system. Indeed, the election of the new President K. Tokayev in June 9, 2019 widely known as the authoritative politician and scientist, having experience as the Minister of foreign affairs, Prime-Minister of the country, Director General of the division of UN in Genève is a significant guarantee of the stable, civilized development of young sovereign country. The current Constitution of the Republic of Kazakhstan, adopted by a referendum on August 30, 1995, doesn’t conceptually and structurally differ from the modern constitutions of many other States. Paragraph 1 of article 1 of the Basic law stipulates that “the Republic of Kazakhstan claims to be a democratic, secular, legal and social state whose highest values are the individual, his life, rights and freedoms”. The Constitution recognizes the highest legal force and direct effect throughout the country. It clearly defines the legal status of international treaties ratified by the Republic of Kazakhstan: they have priority over the legislation of the country. The procedure and conditions of international agreements in Kazakhstan are determined by the country’s legislation. Further amendments and additions to the current Constitution of the Republic of Kazakhstan are entirely focused on improving the political and legal system by, for example, expanding the powers of the Parliament, restricting the limits of the implementation the death penalty, etc. Among the passed stages of the constitutional changes we should emphasize the last, which is according to its scale is equal to the constitutional reform: changes and additions, of 2017 are aimed at the Constitution supremacy ensuring in the national legal system, strengthening of the protection of the constitutional rights and freedoms of a man and citizen,

8 Constitution of the Republic of Kazakhstan. Scientific-practical commentary. – Astana: 2018. – p. 67. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 19 democratic modernization of the presidential form of government by means of clarification of the constitutional status of the President, strengthening of the role, independence and responsibility of the Parliament and Government, redistribution of the powers between the President, Parliament and Government on the basis of the principle of unity and state powers division. This reform has adjusted the constitutional basis of the judicial and law-enforcement system as well. Particularly noteworthy is a significant role in evolutionary and democratic development of Kazakhstan of the President N. Nazarbayev, which was reflected in the legislative procedure: the Constitution defines the status and powers of First President of Kazakhstan - “Leader of the nation”, which, in accordance with the Law “On the Security Council of the Republic of Kazakhstan” of July 5, 2018, for life is headed by the Security Council “because of its historical mission. “The Security Council is a constitutional Agency that coordinates the implementation of unified state policy in the sphere of national security and defence in order to preserve domestic stability, protect the constitutional order, state independence, territorial integrity and national interests in the international arena. Expanded in the result of the reform the list of particularly safeguarded constitutional values is consolidated by the constant steps of the legislative, institutional and other characters. In particular, the constitutional provision of a “social state” is consolidated by the new structure and periodical revaluation and new structure of the subsistence level. An important step in the constitutional reform is to strengthen the institution of constitutional control and increase the responsibility of the Constitutional Council, which also includes former presidents of Kazakhstan for life. The Constitutional Council has the right to decide (in case of a dispute) whether the elections of the President, members of Parliament and the Republican referendum are correct; it considers the laws adopted by the Parliament for their compliance with the Constitution before the President signs them. The Constitutional Council has the right to review international treaties of the Republic of Kazakhstan for compliance with the Constitution before ratification. It also gives an official interpretation of the Constitution, etc.in 20 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY this context, it should be noted that international treaties recognized by this body of constitutional control as inconsistent with the Constitution of the Republic of Kazakhstan cannot be signed and, accordingly, ratified and put into effect. Constitutional changes have considerably strengthened the Institute of the Ombudsman in the Republic of Kazakhstan, which corresponds to the Paris principles of UN. In particular, according to the acting rules the Ombudsman on the representation of the President is being elected and released from office by the Senate, that strengthens its independent status. The Republic of Kazakhstan, whose Constitution contains a whole section (section two) entitled “Man and citizen”, is a party to the main international human rights treaties of the UN system and periodically reports on their implementation to the relevant human rights Treaty bodies (committees): the UN Committee on economic, social and cultural rights, the human rights Committee, the Committee on the elimination of racial discrimination, the Committee on the elimination of discrimination against women, the UN Committee against torture, the Committee on the rights of the child, Committee on enforced disappearances, Committee on the rights of persons with disabilities. The relevant interdepartmental body of the Republic of Kazakhstan pays great attention to the implementation of the recommendations of these human rights Treaty bodies. In this regard, it should be noted that the Republic of Kazakhstan recognizes the competence of the Committee against torture, the human rights Committee, the Committee on the elimination of racial discrimination and the Committee on the elimination of discrimination against women to accept individual complaints of citizens about violations of rights under relevant international treaties, which allows citizens of the Republic of Kazakhstan to apply to international human rights bodies if they exhaust national remedies. Kazakhstan has passed all cycles of the Universal periodic review (UPR), which regularly reviews the implementation of UN member States ‘ obligations and responsibilities in the field of human rights. The Republic of Kazakhstan actively cooperates with the human rights Council (HRC) and the Office of the United Nations high Commissioner for human rights (OHCHR), PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 21 and constantly invites special procedures of the HRC. Kazakhstan is open for cooperation, and it was visited by the special Rapporteur on the independence of judges and lawyers, the special Rapporteur on human rights and terrorism, the special Rapporteur on torture, the Independent expert on minority issues, the special Rapporteur on adequate housing, special Rapporteur on the right to education, the special Rapporteur on freedom of or , the special Rapporteur on the right to freedom of peaceful Assembly and the right to Association, the special Rapporteur on toxic and hazardous wastes, the special Rapporteur on the rights of persons with disabilities, etc. Kazakhstan is known for large-scale initiatives to limit and destroy nuclear weapons, reduce military budgets of States and direct funds for peaceful purposes. In 2017-2018, Kazakhstan was a non-permanent member of the UN Security Council, came up with the idea to establish a global counter- terrorism coalition (network) of states under the auspices of the UN, and as a basis for its creation, it was proposed to develop a Code of conduct for achieving a world free of terrorism. This initiative of Kazakhstan has recorded the interdependence of security, counter-terrorism and development, which is fully correlated with the main elements of the sustainable development goals. Thus, for me, as a citizen of another country who has worked for many years in the UN, Kazakhstan seems as a quite accomplished, dynamically developing state, well-known and predictable in the foreign arena, and in the year of the 25th anniversary of the adoption of the Constitution, I would like to wish further successful development in all areas of domestic and foreign policy. 22 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

George PAPUASHVILI Chairman of the Constitutional Court of Georgia (2006-2016), International adviser, professor THE RULE OF LAW REFORMS IN THE REPUBLIC OF KAZAKHSTAN AS A CORNERSTONE OF MODERN CONSTITUTIONAL STATE

n 2020 the Republic of Kazakhstan marks the 25th anniversary of its Constitution, which is a high time to look back and reflect on its achievements spurred by the process of constitutional transformation. The Constitution provides the basis that underpins the legal system in Kazakhstan.I Article 1 of the Constitution proclaims the state “as a democratic, secular, legal and social state whose highest values are a person, his life, rights, and freedoms”. This very constitutional provision has served as a precept for the legal transformation that came about in Kazakhstan in the past decades. For the purposes of the presented article, the emphasis will be given to the PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 23 international cooperation with the Council of Europe’s consultative body – the Venice Commission (the European Commission for Democracy through Law) and other international organisations and thereby also, to the willingness of the Kazakh authorities to reform and aspire to the best international practice. These efforts have produced results that are impressive and set an example in the region. It is widely argued that the rule of law reforms in states undergoing transformation largely contributes to the democratisation and economic development. In particular, it is essential for sustainable economic development to adopt predictable and enforceable laws for contract enforcement and foreign investment, whereas the protection of human rights and mechanisms holding government accountable are inherent in a democracy. The level of cooperation with the Venice Commission as illustrated below has spurred changes that positively influenced the rule of law standards in the country. It should be stressed that as a member and then expert of the Venice Commission working with Kazakh authorities I witnessed a strong motivation and willingness to cooperate with the Commission from different relevant counterparts. Notably, I would stress the active role in effective collaboration of the Member of the Venice Commission and former Chairman of the Constitutional Council – Igor Rogov; Zhakip Asanov, Chairman of the Supreme Court (also in his former position of Prosecutor general); Talgat Donakov, Chairman of High Judicial Council (also in his former position of Deputy head of Administration of President); Kairat Mami, Chairman of the Constitutional Council (also in his former position of Chairman of the Supreme Court); Marat Beketaev, Minister of Justice and others. Also, it is important to mention that during my tenure as President of the Constitutional Court of Georgia, we were able to forge wonderful cooperation with the Constitutional Council of Kazakhstan. The latter represented then by its Chairman and my dear colleague, a member of the Venice Commission Igor Rogov has always remained willing to organise international conferences and various academic or educational events. I have actively participated in these activities similar to the representatives of the Constitutional Council of Kazakhstan, who have constantly honoured us with their visits. I am delighted 24 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY that this cooperation between our two institutions continues successfully by the current Chairman of the Constitutional Council Kairat Mami. It is also worth mentioning that as an International Expert and legal reform advisor I have been participating in different World Bank supporting reforms with Ministry of Justice, which demonstrate strong motivation and aspiration of the Minister Beketaev and his team to pursue effective administrative reforms in line with rule of law Constitutional principles.

Cooperation with the Venice Commission The Venice Commission has provided significant support to the process of constitutional and legislative changes in the Republic of Kazakhstan. In Resolution of the Parliamentary Assembly 1526 (2006) on the situation in Kazakhstan and its relations with the Council of Europe, the Assembly recognised the importance of Kazakhstan as one of the pillars of stability in the Euro-Asian region and called for co-operation with this country to be stepped up. The work of the Commission includes scrutinising the laws and draft legislation to ensure that ‘European standards’ of democracy are upheld across the world, as well as offering counsel and recommendations when approached for advice. For Kazakhstan, at the request of the Government the Venice Commission develops the legal system, taking into account the generally accepted principles of the European constitutional heritage. Since the beginning of the implementation of the Action Plan - Neighbourhood Cooperation Priorities for Kazakhstan: Cooperation Activities on Council of Europe’s Conventions in Criminal Matters which was successfully implemented in July 2018, Kazakhstan has acceded to three legal documents of the Council of Europe in the field of criminal justice, namely Convention No. 141 (Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime), Convention No. 127 (Convention on Mutual Administrative Assistance in Tax Matters) and its Protocol No. 208 (Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters). In this way, Kazakhstan strengthens its commitment to more active participation in international cooperation in criminal matters and PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 25 harmonizes its criminal justice legislation with European norms. In 2018, Kazakhstan gained an observer status in the Council of Europe European Commission for the efficiency of justice (CEPEJ) and the Consultative Council of European Judges (CCJE). Since 1998, Kazakhstan had observer status and in 2012 became an official member of the Venice Commission. Kazakhstan’s joining the Venice Commission allows the country to adopt a practical experience of Europe in the field of constitutional law, elections and referendums, cooperation with constitutional courts and comparative studies on the democracy application. During this time, at the request of the Kazakh Government, the Venice Commission has repeatedly provided expert and methodological assistance in reforming legal institutions in Kazakhstan by adopting several Opinions on various pieces of legislation of Kazakhstan including: Opinion on the Concept Paper on the reform of the High Judicial Council, adopted by the Venice Commission at its 117th Plenary Session (Venice, 14-15 December 2018); Opinion on the draft Administrative Procedure and Justice Code, adopted at the 116th Plenary Session (Venice, 19 - 20 October 2018); Opinion on the draft amendments to the Constitution of Kazakhstan, adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017); Opinion on the draft law of the Republic of Kazakhstan on administrative procedures, adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017). Opinion on the Draft Code of Judicial Ethic, adopted by the Venice Commission at its 107th Plenary Session (Venice, 10-11 June 2016); Joint Opinion with the OSCE/ODIHR on the constitutional law on the judicial system and status of judges of Kazakhstan adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011); Amicus Curiae on the Interpretation of the Kazakh Constitution concerning the participation in the Customs Union within the Euro-Asian Economic Community for the Constitutional Council of Kazakhstan endorsed by the Venice Commission at its 81st Plenary Session (Venice, 11-12 December 2009); 26 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Opinion on the possible reform of the Ombudsman Institution in Kazakhstan adopted by the Venice Commission at its 71st Plenary Session (Venice, 1-2 June 2007). I, as one of the co-rapporteurs, have had the privilege to act on behalf of the Venice Commission and draft recommendations on such issues as the “Opinion on the Constitutional Reform” and “Opinion on Administrative Procedure and Justice Code”.

Opinion on the draft amendments to the Constitution of Kazakhstan, adopted by the Venice Commission at its 110th Plenary Session (Venice, 10-11 March 2017) The authorities of Kazakhstan requested an opinion of the Venice Commission on the draft law on the constitutional reform. In its Opinion adopted on 11 March 2017, the Venice Commission concluded as follows (paragraph 51): “The proposed constitutional amendments submitted for review represent a step forward in the process of democratization of the state. Revision of the competences of the branches of power and setting up a system of checks and balances is a difficult task. Many aspects of these efforts can only be assessed over time, when practical experience has revealed the most appropriate approach, taking into account historical development and traditions, societal development, the society’s attitude towards the processes around, as well as international developments. But there can be no doubt that the reform goes in the right direction and constitutes a clear step forward. Other steps should follow in the future.” The constitutional reform in Kazakhstan, adopted in March 2017, changed the distribution of powers between the President and other branches of state power. The role of the Parliament was increased and some of the powers previously in the hands of the President were distributed between the Government and Parliament. The Constitutional Council received additional competencies (to examine draft constitutional amendments), which was welcomed by the Venice Commission. In its conclusion, the Commission indicated that the constitutional changes of Kazakhstan represent a step forward in the process of democratisation of PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 27 the state and correspond to the logic of previous constitutional reforms carried out in 1998 and 2007.

Opinion on the draft Administrative Procedure and Justice Code, adopted at the 116th Plenary session (Venice, 19-20 October 2018). The Minister of Justice of the Republic of Kazakhstan requested the opinion of the Venice Commission on the draft Code (CDL-REF(2018)037). In general, the draft Administrative Procedural Procedure Code is commented favourably. In particular, it was noted that the draft law unites a wide range of legal provisions filling a number of existing gaps in national legislation and introducing new mechanisms and procedures representing positive international experience. According to the document, the administrative reform launched in Kazakhstan is stipulated ‘by the authorities’ will to optimize and simplify administrative procedures and this is an important step in establishing clear rules in the field of administrative procedures and administrative justice. According to the Opinion, the examined draft Code (hereinafter, the draft Administrative procedure and justice code) has a broader subject of regulation than was intended by the 2009 Concept. It integrates administrative procedures, as well as administrative court proceedings on resolving disputes in the field of public relations. It was decided to integrate in a single Code both the administrative procedures and administrative court proceedings which is a completely new approach in the legal tradition of Kazakhstan. This represents a major challenge since the text has to provide a solid and sensible legal background for regulating the relations between individuals and public administration and dispute resolution mechanisms in line with the Constitution of Kazakhstan and international standards. According to the Report, the draft could be further improved through a number of adjustments and changes.

Right to Property I was honoured to be an author of one of the articles of the Constitution 28 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of the republic of Kazakhstan on the right to property, article 26 (“Scientific practical commentaries to the Constitution”, published by the fund of the First President of the Republic of Kazakhstan - Elbasy and Ministry of Justice of Kazakhstan, 2018). It is widely accepted that the right of private property has practical economic and prosperity related implications. Strong evidence exists that there is a direct link between property rights and prosperity of the countries. For example, all the countries in the top 10 of the 2010 International Property Rights Index (IPRI) are developed countries with a high GDP per capita.9 On average, countries in the top of the IPRI scale have eight times higher income than the countries in the bottom. This type of link between poverty and the absence or not adequate protection of property rights is also very visible in the World Bank’s 2009 Country performance and Institutional Assessments. Insecure property rights negatively affect economic development.10 The infamous Soviet past provides historical example of the results of the almost nonexistence of the notion of Private property. The first World recognised international Document which stipulates property rights is the Universal Declaration of Human Rights adopted by the United Nations General Assembly in Paris on December 10.11 Drafted by the representatives of different legal and cultural backgrounds it sets out for the first time fundamental human rights to be universally protected. Article 17 of the Declaration gives the guarantees of the property rights – “17. 1) Everyone has the rights to own property alone as well as in association with others. 2) No one shall be arbitrarily deprived of his rights”. European Convention on Human Rights and European Court of Human Rights in Strasbourg recognizes the right to conditions and also recognizes the right of the states to balance the right to peaceful possession of property with public interest. The States have a discretion to limit to some extend this right.12 National authorities have wide margin of appreciation in implementing social and economic policies that have the effect of interfering with the right

9 Available at: http://edoc.vifapol.de/opus/volltexte/2011/2417/pdf/IPRI_2010_152_4S_Internet.pdf 10 Available at: http://siteresources.worldbank.org/EXTCPIA/Resources/cpia_full.pdf 11 Available at: http://www.un.org/en/universal-declaration-human-rights/ 12 See: Harris, O’Boyle, Bates, Buckley, Oxford publishing, 2nd edition 2009, pp. 666-667. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 29 to property.13 The notion of Property rights is strongly embodied in the Kazakhstan Constitution. Provisions of article 26 are directly linked to other principles and articles of the Constitution. Specifically, with article 6, which says that “1. The Republic of Kazakhstan shall recognize and by the same token protect state and private property. 2. Property shall impose obligations, and its use must simultaneously benefit the society. Subjects and objects of ownership, the scope and limits of the rights of proprietors, and guarantees of their protection shall be determined by law. 3. The land and underground resources, waters, flora and fauna, other natural resources shall be owned by the state. The land may also be privately owned on terms, conditions and within the limits established by legislation”. As one may observe some of the provisions provided in article 26 of the Constitution are comparable and synchronised with International norms and practice, especially with European Convention of Human Rights. These Provisions of the Constitution of Kazakhstan also give the guarantees of the protection of property rights only if acquired legally. This is the necessary prerequisite to be protected by the Constitutional and legal mechanisms. The same is stipulated in European and international norms and practice (e.g. “enjoyed peacefully” terminology used in ECHR relevant article). In addition, Article 26.2 of the Constitution of Kazakhstan provides Constitutional protection also to the right of inheritance. This is related both to the right of the person to leave a will and right of the recipient to get the inherited property. This is a very important provision to include such a right at Constitutional level. Again, after negative Soviet legal and practical experience such provisions give more guarantees for all type of property rights including right to inheritance,14 which is one of the cornerstones of the whole concept of ownership. Like International documents article 26 of the Constitution also stipulates that right to property is not absolute. The State has some discretion to

13 Analysing Article e 1 of Protocol N1 the Strasbourg Court uses three rules to condition the right to limit or deprive the right of property. See Monika Carss-Frisk, The Right to Property, Human Rights Handbook, N. 4, Council of Europe 2003 pp. 21-26. 14 See e.g. Bruce L.Benson, The Evolution of Eminent Domain, The Independent Review, v. XII, n. 3, Winter 2008, pp. 423–432. 30 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY interfere in the exercise of this right. There is similar international legislation and practice when such interference is necessary for the public good and interests. However, such interference is bound by very strict Constitutional and legislative boundaries in order not to abuse rights of property. Article 26 provides some of the criteria for the safeguard against abuse, specifically for such interference there should be a) clear legal purpose - just for public use – this could be for infrastructure and other related developments (in many countries such potential legal purposes are defined in details in specific legislations like Eminent Domain); 2) this should be done in extraordinary cases stipulated by law- this means such interference may be executed just in cases defined by the legislation and not by any voluntary administrative decision; and 3) just with the condition of equivalent compensation. These criteria are cumulative and very important for keep balance between right to property and public interests. One more important element of the possibility of deprivation of property according to the same article 26 is - on the basis of decision of the Court. This means that judicial decision is necessary for such interference of the State. The question remained whether Court involvement is the necessary prerequisite along with other cumulative criteria mentioned above for such restrictions. By its decision of 2000 #6/2 the Constitutional Council of Kazakhstan interpreted this provision in the manner that not in all cases the judicial decision is necessary. The Council emphasized however that non-judicial interference should follow strictly all the conditions stipulated in paragraph 3 of article 26 (in extraordinary cases, stipulated just by the law and with fair compensation).15 According to international norms and practice (especially of Strasbourg Court) and interpretations of the Constitutional Council dealing with property rights limitation one should take into account the principles and criteria like Legal certainty, Proportionality, defining public and/or general interests etc. It is interesting to note that according to current provisions of article 26 just citizens of Kazakhstan enjoy right to ownership. At the beginning of 2017 the president of Kazakhstan initiated Constitutional amendments,

15 Available at: http://www.ksrk.gov.kz/eng/resheniya/ PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 31 which were adopted on March 10, 2017 after public and parliamentary discussions including international involvement, like Council of Europe Venice Commission.16 According to the initial draft amendments to article 26 the first two paragraphs were reformulated in the following: “1. Every individual may privately own any legally obtained property. 2. The rights of ownership is absolute and inviolable. Ownership, including the right of inheritance, is guaranteed by law. Adoption of laws and other legal acts limiting or constraining the right of legally obtained private ownership is not permitted, unless otherwise provided for by the Constitution”. Thus, the draft provided also to non-Citizens of the country right to ownership as well as more guarantees for inviolability of ownership rights. According to the explanatory note to this draft provision provided by the State Constitutional Commission, the aim was “to guarantee the property rights of foreigners and persons without citizenship, their equality, justice and improvement of investment climate... the inclusion of this provision on the inviolability of property rights in the Constitution significantly strengthen guarantees of private property rights, which is the basis of the market economy, entrepreneurial activity, and to a certain extent will determine the content of other human rights”. The Venice Commission positively assessed these proposed amendments on right to ownership. Generally, it is opinion of the Venice Commission (expressed in some of the opinions) that it is up to the States and discretion of the National Constitutions to elaborate the possibility for foreigners to have ownership in the specific countries according to the National needs and interests. After the public discussion it was decided to halt incorporation of this new provision at this stage as the public opinion and reactions were mixed. This does not, by any chance, exclude that after a while there is a possibility to come back to this. Article 26, paragraph 4 of the Constitution sets the basis for freedom of entrepreneurship and free competition. These provisions guarantee at the Constitutional level free entrepreneurship and fair business activities, which is very important for the sustainable business and economic developments.

16 Available at: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)010-e) 32 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

It is important to note that everybody - citizens and non-citizens of Kazakhstan may enjoy these guarantees. The Constitutional provisions of article 26 are in detailed interpreted, regulated and defined in the relevant legislation of Kazakhstan, notably - Civil Code, law on State Property, Land Code, Law on Competition etc. At the same time the relevant decisions and interpretations of the Constitutional Council play very important role for understanding properly the provisions of the Constitution and for the development of the relevant legislation in accordance to the principles and norms of the Constitution.17

Reform of the Administrative Services and Administrative Law It is noteworthy that the Ministry of Justice and other relevant state institutions have launched reform of administrative legislation and services. These activities are designed to contribute to the strengthening of significant elements of the legal framework, which contributes to the development and enhancing of the justice sector by improving the quality of public services for the citizens and legal entities and the operational work of state bodies. The Ministry of Justice in Cooperation with the World Bank has initiated relevant projects involving Miller Canfield and GLCC Consortium of international and local experts (I am honoured to lead this team), which has extensive experience in reforming the private and public sectors in Eastern and Central Europe and Central Asia. Apart from the Administrative Procedure and Justice Code, international experts took part in a project in order to reform the laws in the field of real estate registration, state-guaranteed legal aid and notary activities, as well as a system of civil acts. The projects were implemented in the form of technical and consulting assistance aimed at improving legislation, based on the analysis of legislation and the best world practices, which have achieved significant progress in the presented areas and a high level of public confidence.

17 Among the numerous decisions of the Council one may name ones that have played crucial role in development of the Constitutional understanding and interpretation of the right of Property: Decision of 1996 #8; Decision of 1999 #19/2; Decision of 2000 #6/2; Decision of 2005 #4; Decision of 2008 #4; Decision of 2009 #5; Decision of 2011 #5, available at: http://www.ksrk.gov.kz/eng/ resheniya/ a PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 33

Conclusion The Constitutional developments in recent years witness strong determination of the Republic of Kazakhstan to implement the principles of the Rule of Law as enshrined in the Constitution. Also, the administrative reforms highlighted above showcase that Kazakh authorities advance the rule of law constitutional principles in line with international democratic standards in close cooperation with international organisations and partners. The changes that have taken place in the past few years were directed to improving the existing regulatory framework and simplifying state services, which inherently have tangible practical implications. Firstly, it helps to provide workable constitutional mechanisms for strong institutional functioning and also, facilitates individuals and groups to realise private initiative potential. As a result of these efforts, Kazakhstan has seen an impressive upheaval in the World Bank’s Ease of Doing Business rating, jumping 8 positions in 2019.18 It also improved its position in the Rule of Law index and now clearly stands out in the region.19 These developments are a vivid illustration of the progress recorded by the Republic of Kazakhstan since the adoption of the 1995 Constitution. It is also a good indication of the determination and willingness of the authorities of Kazakhstan to strive for the realisation of constitutional principles.

References: Primary Sources 1. Bruce L. Benson, The Evolution of Eminent Domain, The Independent Review, v. XII, n. 3, Winter 2008, pp. 423–432. 2. Constitution of the Republic of Kazakhstan, available at: http://www.akorda.kz/en/official_documents/constitution 3. Decision of 1996 #8; Decision of 1999 #19/2; Decision of 2000 #6/2; Decision of 2005 #4; Decision of 2008 #4; Decision of 2009 #5; Decision of 2011 #5, available at: http://www.ksrk.gov.kz/eng/resheniya/a

18 See: Kazakhstan Among World’s Top 30 Economies in Ease of Doing Business, available at: https://www.worldbank.org/en/news/press-release/2018/10/31/kazakhstan-among-worlds-top-30- economies-in-ease-of-doing-business 19 Available at: http://data.worldjusticeproject.org/#/groups/KAZ 34 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

4. Harris, O’Boyle, Bates, Buckley, Oxford publishing, 2nd edition 2009. 5. Monika Carss-Frisk, The Right to Property, Human Rights Handbook, N. 4, Council of Europe 2003. 6. Online Sources http://data.worldjusticeproject.org/#/groups/KAZ http://edoc.vifapol.de/opus/volltexte/2011/2417/pdf/ IPRI_2010_152_4S_Internet.pdf http://siteresources.worldbank.org/EXTCPIA/Resources/cpia_full.pdf http://www.ksrk.gov.kz/eng/resheniya/ http://www.un.org/en/universal-declaration-human-rights/ http://www.venice.coe.int/webforms/documents/?pdf=CDL- AD(2017)010-e) https://icsid.worldbank.org/en/Documents/resources/2006%20CRR_ English-final.pdf Kazakhstan Among World’s Top 30 Economies in Ease of Doing Business, available at: https://www.worldbank.org/en/news/press-release/2018/10/31/ kazakhstan-among-worlds-top-30-economies-in-ease-of-doing-business PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 35

Mikhail MITYUKOV Plenipotentiary representative of the President of the Russian Federation to the Constitutional Court of the Russian Federation (1996-2005), professor, Honored lawyer of Russia FORERUNNER OF THE CONSTITUTIONAL JUSTICE ON THE POST-SOVIET SPACE: TO THE HISTORIOGRAPHY OF THE COMMITTEE OF THE CONSTITUTIONAL SUPERVISION OF THE USSR (1988-1991)

hirty years ago, on May 15, 1990, the first session of the Committee on the constitutional supervision (hereinafter-CCS, Committee). In was a predecessor not only of the Russian constitutional justice, but of all the bodies of the constitutional control on the post- sovietT space. This is, on the opinion of S.S. Alekseyev, “first in our country application for the constitutional justice”20. Notwithstanding to the fact that the experience of CCS didn’t last for long, was not successful in everything, it became defining in that the safeguarding of the Constitution, ensuring of its supremacy, rights and freedoms of the citizens accomplished in consequence

20 Alekseev, S. C. favorites: the Science of law; Social problems; social and political Journalism. Moscow, 2003. P. 322. 36 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY in more perfect organizational- legal form – by the constitutional courts or council as in Kazakhstan. In a very short history of this body the four timeline sections 1) discussion of the organizational- legal form of the soviet Constitution safeguarding, establishment (constitutional consolidation) of CCS of USSR with the first not successful attempt on its formation (1986 -1 December 1988); 2) the elaboration of the project and adoption of the Law on the constitutional supervision in USSR, election of the heads and members of the named committee (1989 -April 26, 1990); 3) the specialized constitutional review (May 1990-1991); 4) crisis of the constitutional review (August – December 1991). Generally, the history of the ССS is devoted only to: the paragraph “Discussion of the problem in the late 80’s. The Committee of constitutional supervision”, written by L.V. Lazarev in a joint textbook with V A. Kryazhkov (1998)21; the section in the monograph “forerunner of constitutional justice: views, projects and institutional prerequisites (30-early 90’s of the XX century)”, published in 2006 (Moscow, p. 55-133); and the documentary (including legal) basis of this history – the section of the collection “Domestic constitutional justice: history and modernity. Documents and materials (1988-2010)”, published by A. A. Klishas and S. M. Shahrai (M. 2010. Pp. 78-119). The first retrospective reviews of CCS were created by A. Blankenagel and B.M. Lazarev, just a few months after the termination of its activities (1992)22. The evaluation aspects of the Committee’s activities were discussed in the memoirs of M. S. Gorbachev, A. I. Lukyanov, A. D. Sakharov, and G. H. Shakhnazarov 23. Then only in the late 90’s A. M. Barnashov in his article tried to understand its role in the legal protection of the Constitution 24. In the 2000s, the former

21 See: Kryazhkov V. A., Lazarev L. V. Constitutional justice in the Russian Federation. Moscow, 1998. Pp. 41-44. 22 See: Blankenagel A. Russia: towards constitutionalism. Committee of constitutional supervision of the USSR: a retrospective review / / Constitutional law: Eastern European review. 1992. No. 1. Pp. 13-16; 1998. No. 2 (23). P. 11-15; Lazarev B. M. Committee of constitutional supervision of the USSR (summing up) / / State and law. Moscow, 1992. No. 5. Pp. 21-34. 23 See: Gorbachev M. S. Life and reforms. kN. 1. Moscow, 1995 P. 491; Lukyanov A. in the whirlpool of Russian turmoil. M., 1999 P. 175; Sakharov A.D. Memoirs: In 2 vols., Vol. 2: Bonner E. G. Post- Script to the “Memoirs” of Andrei Sakharov; Sakharov A.D. Gorky, Moscow. P. 425; Shakhnazarov G. the Price of freedom: Gorbachev’s reformation through the eyes of his assistant. Moscow, 1993. 623 PP. 24 See: Current problems of state and law in the modern period. Part 1 / edited by V. F. Volovich. - Tomsk, 1998. Pp. 85-92. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 37 heads of this Institute, S.S. Alekseev and B.M. Lazarev devote separate pages to it in his theoretical and historical-legal monographs 25. In the latest literature, the review of the history and analysis of the creation and activity of the CCS is undertaken by A. Mironenko, M. A. Mityukov, and O. V. Brezhnev 26. The studies of the last decades, besides the mentioned publications, mainly concerned the important, but private issues: the terms in the constitutional review, the peculiarities of the status of the members of CCS of USSR, influence of its opinions on the development of the science of the constitutional law in the sphere of human rights in whole and on the constitutional justice, in particular, practice of the constitutional-review activity27. The bibliography of the sources of CCS is represented by the detailed section in the specialized publication “Bibliography on the constitutional justice”, where summarily, as for the January 1, 2017, 121 entries on scientific and journalistic works, as well as legal and constitutional-supervisory acts are given. Their brief analysis is given in the introductory essay “Constitutional justice as a direction of constitutional and legal research: the experience of bibliographic interpretation” and in a number of other articles28.

25 See: Alekseev S. S. Line of law. M. 2002. 352 PP. 26 See: Mityukov M. A. forerunner of constitutional justice (to the history Of the Committee of constitutional supervision of the USSR) / / Academic notes of the faculty of law. Vol. 5 (15). SPb.: Publishing house of St. Petersburg. University of Economics and Finance, 2006. Pp. 104-152; Constitutional justice. Yerevan, 2005. Vol. 4 (30). Pp. 31-56; 2006. Vol. 1 (31). Pp. 53-89; Vol. 2 (32). Pp. 14-39; Mironenko A. Constitutional justice at the turn of the Millennium. Page 133: Creation and evolution of the USSR constitutional supervision Committee / / Law & Business. Kiev, 2009. 1-7 Aug., No. 31 (915); Brezhnev O. V. Committee of constitutional supervision of the USSR: history of creation, legal status, activity / / Izvestiya Yugo-ZAPADNOGO gosudarstvennogo univer- siteta. Kursk, 2018. No. 1 (76). Pp. 211-216.These same aspects were also addressed in articles by some and other authors. (see: Vitevsky A.E. constitutional control, constitutional justice at the stage of perestroika / / Articles of postgraduates and trainees / Proceedings of the Institute of state and law of the Russian Academy of Sciences. Moscow, 2008. No. 3. P. 81-94; Kozin V.I. Creation of constitutional control bodies in the USSR and the RSFSR: General and special / / History of state and law. Moscow, 2005. No. 1. Pp. 52-55). 27 See: Avakyan S.A. constitutional lexicon (state-legal terminology dictionary). Moscow, 2015. Pp. 371-372; Maksimova O. D. Conclusions of the Committee of constitutional supervision of the USSR and the development of human rights in domestic law. Vestnik Severo-Vostochny Federal University. M. K. Ammosova. Series: History. Political science. Right. Yakutsk, 2018. No. 2. P. 18-21; Slesareva K. A. the Committee of constitutional supervision of the USSR and its influence on the development of constitutional justice in the CIS countries / / Russian judge. 2010. No. 12. Pp. 31-34; Furman T. Some features of the legal status of a member Of the Committee of constitutional supervision of the USSR / / Law and law. Moscow, 2013. No. 11. p. 20-22; Akimenko K.V. Development of the concept of civil rights and human freedoms in the USSR in the mid-80s of the XX century / / Bulletin of the constitutional Court of the Republic of Belarus. Mn., 2008. No. 1. Pp. 81-87. 28 See: Bibliography on constitutional justice / ed.- comp. M.A. Mityukov. Moscow, 2008. Pp. 48- 49, 173-182; 2nd ed., additional M., 2011.Pp. 86-95; Constitutional justice: systems. Bibl. guide. (2011-2016) / auth. - comp. M.A. Mityukov. Moscow, 2018. P. 6, 75; Mityukov M.A. Constitutional justice: experience of bibliographic interpretation (Federal aspect) / / Actual problems of teaching 38 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

It should be noted, that in cognition of the history of CCS the definite role is played by the memoir literature of the persons, who has created its history, and the memoir works about S.S. Alekseyev, B.M. Lazarev, M.I. Piscotine29. To the same spectrum of the sources can be related the multiple interview of the first of them30 and his book, published in 1997 31, and some of the jubilee memories of the well-known at those times publicists32. There are no generalized devoted to each of the chronological sections of the CCS history papers, we can judge of it only on the basis of the analysis of the literature massive, legal acts, archive materials, publicists memories. 1. The discussions of the second half of the 80’s are evidenced by scientific papers and reviews 33, as well as scientific and journalistic articles of the time. In the studied plan, scientific “searches” of such scientists as S.S. Alekseev, Yu.M. Baturin, D.A. Kerimov, V.N. Kudryavtsev, B.M. Lazarev, L.V. Lazarev, R. Z. Livshits, V. O. Luchin, N. A. Mikhaleva, Zh. I. Ovsepyan, V.M. Savitsky, A. Sliva, I.M. Stepanov, B.N. Topornin, V.A. Tumanov, Yu.L. Shulzhenko, A.I. Ekimov, A.M. Yakovlev are of interest34. Among the authors are heads of law enforcement agencies, publicists (V.I. Terebilov, S. Emelyanov,

constitutional and municipal law: materials of vseros. science.- pract. this. March 14-15, 2008 / Rel. ed. Moscow, 2008. 29 See: Anniversary of Sergey Sergeevich Alekseev / / Pravovedenie. SPb., 2004. No. 1. Pp. 266- 271; Tolstoy Yu.K. In Memory of B.M. Lazarev / / Pravovedenie. SPb., 1995. No. 1. P. 135; Tolstoy Yu.K. Pages of memoirs. S.M. Korneev, V.A. Dozortsev, M.I. Piskotin. Moscow, 2004. 24 p.; Nikitin- sky L. Sergey Sergeevich [Alekseev] / / Novaya Gazeta. Moscow, 2013, no. 51, May 15; Riptkina D.V. Heavy path to law through the eyes of S.S. Alekseev / / Evolution of Russian law. Matera. XVI Century. science. Conf. young scientist. URGUU. 2018. Pp. 478-480.See:. 30 See: Alekseev S. S. constitutional supervision: first steps and problems / / Izvestia. Moscow, 1990. 28 Aug.; He. In the Committee of constitutional supervision of the USSR / / Izvestia. Mosk. Veches. vol. Moscow, 1991. 18 Jan.; He. Interview of the Chairman of the Committee of constitutional su- pervision of the USSR / / Jurisprudence. SPb., 1991. No. 3. Pp. 3-7 and others. 31 See: Alekseev S.S. Lessons. Russia’s difficult path to law. Moscow, 1997. 326 PP. 32 See: Feofanov Y. Forgotten the start of the “third power”. The Committee of constitutional super- vision dissolved itself without waiting for the command / / Izvestia, 2001. 22 Aug.; He. The first experience of constitutional justice / / Vremya MN., 2001. 23 Aug. 33 Legal science and practice in the conditions of perestroika [podg. IGP of the USSR] // the Com- munist. Moscow, 1987. No. 14. Pp. 42-50; Savitsky V.M. Justice and perestroika / / Sov. state and law. Moscow, 1987. No. 9. P. 29; Discussion of problems of improving legislation on the judicial system and judicial proceedings. justice. Moscow, 1988. No. 12. Pp. 28-30 (on expanding judicial control-S.N. Bratus, A. Mickiewicz, M. studenikina, V. Pertsik). 34 Alekseev S.S. the Legal state – the fate of socialism. Scientific and journalistic essay. M., 1988; Kudryavtsev V.N. the Legal state: problems and prospects. legality. Moscow, 1988. No. 9. Pp. 6-9; Baturin Yu.M., Livshits R.Z. the Socialist legal state: from idea to implementation: a political and legal view. M., 1989; Lazarev L.V., Sliva A.Ya. Constitutional reforms: the first stage. M., 1989; Shulzhenko Yu.L. On the issue of the system of constitutional control bodies in the USSR / / Modern constitutionalism. Based on the materials of the Soviet-British Symposium. Moscow, 1990. Pp. 38-46; He. Constitutional control in the USSR / / Strengthening the socialist rule of law – the most important political task / Rel. edited by V.N. Kudryavtsev. Moscow, 1990. Pp. 83-89, etc. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 39

E.A. Smolentsev, F.M. Burlatsky, A. Vaxberg, etc.)35. To understand the situation of those years, the materials of the archive of the President of the Russian Federation (Fund 3) and the Russian state archive of modern history (Fund 2) are also important. These are the transcripts of the May and July plenums of the CPSS Central Committee in 1988, documents of the XIX all-Union party conference (1988), discussions on national policy (1989), on the formation of the CCS (1989-1990) and the preparation of the new Constitution of the USSR, summaries of proposals, comments, and additions of citizens to amendments and additions to the Constitution of 1988-1990. Memoirs are of great help in confirming many facts and conclusions concerning constitutional construction and the place of ideas of constitutional supervision and constitutional control in it. Especially state and political figures involved in these processes-M.S. Gorbachev, V.I. Vorotnikov, A.I. Lukyanov, A.N. Yakovlev, A.E. Bovin, F.M. Burlatsky, V.B. Isakov, G.H. Shakhnazarov36. Interesting material about the activities of the Committee of constitutional supervision of the USSR can also be gleaned from the journalistic works of members of the CCS- S.S. Alekseev, S.S. Bosholov, B.M. Lazarev, M.I. Piskotin, Yu.K. Tolstoy37, as well as journalists - O. Lazis, Yu. Feofanov,

35 See: Kudryavtsev V. Legal system: ways of perestroika / / Pravda, 1986. 5 Dec.; Terebilov, V. I. Law, only the law // True. 1987. 5 Dec.; Topornin B. to exclude circumvention of the law / / Izvestia, 1988. 12 Jan.; F. M. burlatskii Of the Soviet parliamentarism // Lit. newspaper. Moscow, 1988. June 15. P. 2; Shulzhenko Yu. Authority of the Basic Law / / Mosk. Truth. 1988. June 14; Savitsky V. can and Committee, but ... / / Izvestia. 1988. 11 Nov.; Lebedev N. Need a court! // News. 1988. 12 Nov.; Kurashvili B. Supreme power: from the past to the future / / Izvestia. 1988. 14 Nov.; Emelyanov S. Learn political work / / Sov. Russia. 1988. 16 Nov. 36 See: Gorbachev M.S. Life and reforms. kN. 1. Moscow, 1995. P. 491; Lukyanov A.I. in the mael- strom of the Russian turmoil. M., 1999; Bovin A. the twentieth century as life: Memories. M., 2003; Burlatsky F. Leaders and advisers. M., 1990; On. Reforms and reformers: Hopes and illusions. Moscow, 2008. 319 p.; Isakov V. Chairman of the Council of the Republic: Parliamentary diaries 1990-1991. M., 410 p.; Shakhnazarov G. the Price of freedom. Moscow, 1993. 623 p.; Yakovlev A.N. Twilight. Moscow, 2003. 37 See: Alekseev S. S. constitutional supervision-the guarantor of democracy in the country / / Prav- da. Moscow, 1989. 21 Dec.; He. Constitution of perestroika / parliamentary observer V. Shchepotin conducts a dialogue with the Chairman of the Committee of constitutional supervision of the USSR / / Izvestia. Mosk. Veches. vol., 1990. 15 Jan.; He. Legal adviser or full-fledged guardian of the rule of law / / Izvestia, 1990. June 17.; He. The liberty bell // Lit. newspaper. 1990. 27 Jun, etc.; Bosk- holov S.S. Democracy, rule of law, sovereignty. Moscow, 1992. 112 p.; Lazarev B.M. constitutional supervision / / SOC. legality. 1989. No. 7. Pp. 3-4; He. I undertake to comply with the Constitution / / Trud. 1990. 5 Jan. etc.; the M. Piskotin of the Constitution need protection // news. Mosk. vol. 1991. 26 Jan.; Tolstoy Yu.K. in Memory of B.M. Lazarev [about the Deputy Chairman of the kkn] / / Pravovedenie. SPb., 1995. No. 1. P. 135; He. Pages of memories. S.M. Korneev, V.A. Dozortsev, M.I. Piskotin. Moscow, 2004. 24 p., etc. 40 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

A. Stepov, S. Chugaev, V. Shchepotkin 38. In this period the constitutional - legal views on the specialized constitutional review and constitutional control, on which the positions of the ruling circles of the CPSS, inter-party and parliamentary discussions, social opinion, political and national movements and separate people’s deputies of the USSR. The number of accessible documents show in “dialectics” positions of “high-ranking” lawyers -M.S. Gorbachev, A.I. Lukyanov, A.Ya. Sukharev, statesmen and party figures – B.N. Yeltsin, N.I. Ryzhkov, E.A. Shevardnadze, V.A. Medvedev and others, and also many deputies, as “pre-perestroika” (rebuilding) Supreme Council of the USSR, so the session of the people deputies of USSR - G.A. Arbatov, G.E. Burbulis, F.M. Burlatsky, G.H. Popov, and others. The views of people’s deputies of the USSR lawyers – Y.V. Golik, I.N. Gryazin, A.I. Kazannik, A.A. Plotnieks, and A.A. Sobchak-are also very interesting. These views were largely determined either by political or factional preferences or by the interests of a particular Federal Republic or national movement. Those reasons, on which the legislator, more precisely, the ruling CPSS, and its leaders, didn’t establish the judicial constitutional control of the judicial constitutional control, but restricted to constitutional review are being studied. The transformation of the views of the politicians, lawyers and publicists in the direction of constitutional justice realization materialization can be seen. At the beginning, it was assumed, that it will be realized in the new Constitution of USSR, then it was connected with the future Union’s agreement. Since 1986 in the counteraction of the different suggestions, that represent a conglomerate of the ideas of the common and specialized constitutional review and control, consistently will crystalize the ideas of the reach by these methods of the administrative acts and instructions, in the broad sense -by- law acts39, and then the laws and actions of the officials. As an instrument of the separate scientists consider the courts of common jurisdiction, Supreme

38 See: Lacis O. the authors of the statement reject the idea of federalism / / Izvestia. Mosk. Veches. vol. 1991. 2 Sept.; Stepovoy A. the Committee begins to act / / Izvestia. 1990. May 18; Feofanov Yu. Do not rush to the barricades / / Izvestia. Mosk. Veches. vol. 1990. 12 Sept.; etc. 39 See: Kudryavtsev V. Legal system: ways of perestroika / / Pravda. 1986. 5 Dec.; Gorshenev V.M., Shakhov I. B. Control as a legal form of activity. M. 1987. Pp. 154-155. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 41

Court of USSR 40, special advisory body of the constitutional review 41, Constitutional council under the Supreme Soviet of the USSR 42, Constitutional court43. Later in the literature it is stated that at the beginning of 1988, “the Soviet legal doctrine clearly defined the direction of development of constitutional control (supervision) through the effective use of the control capabilities of the Supreme representative body of state power and the expansion of the competence of the Supreme Court in the field of constitutional supervision. The creation of an independent Constitutional Court was considered not as a practical task, but as one of the hypothetical prospects for the development of constitutional control. The issue of specialized constitutional supervision (control) was only one of the components of a broad discussion in the country about the democratization of society, the creation of a “socialist legal state”44. This conclusion is significantly corrected during the preparation and holding of the all-Union party conference and a number of plenums of the Central Committee of the CPSU in the same year, which is confirmed by published as well as archival sources. If the theses for the conference did not support the idea of the rule of law by establishing specialized constitutional supervision (control), then the results of their discussion in the press repeated the idea of creating a real system of legal protection of the Constitution, and as one of its elements - specialized constitutional control bodies such as the constitutional court or the constitutional council, while justifying the need for their certain dependence on the Parliament. In a different direction, 97 employees of the Kola branch of the USSR Academy of Sciences speculated, suggesting “to consider the creation of an independent constitutional court in the country, elected by the people from among prominent members of the public.” The new judicial body, in their opinion, should be given the right to challenge

40 See: Savitsky V.M. Justice and perestroika / / Sov. state and law. 1987. No. 9. Pp. 32-33; Ter- ebilov V.I. the Law and only the law / / Pravda. 1987. 5 Dec.; Tumanov V.A. Judicial control over the constitutionality of normative acts. state and law. 1988. No. 3. P. 18-19; Discussion of problems of improving legislation on the judicial system and judicial proceedings. justice. 1988. No. 12. P. 29. 41 See: Morozova L.A. Speech at the conference in Zvenigorod on May 18-20, 1987. state and law. 1987. No. 11. P. 84. 42 See: Topornin B. to exclude circumvention of the law / / Izvestia. 1988. 12 Jan. 43 See: Legal science and practice in the context of the restructuring p. 44; F. M. burlatskii Of the Soviet parliamentarism // Lit. newspaper. 1988. No. 24; He. Chiefs and councillors. Pp. 177. 44 See: by: M.A. Mityukov, the forerunner of the constitutional justice. P. 60. 42 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY and cancel laws and other regulations that contradict the Constitution of the USSR. The point of view was also defended on the expediency of granting the highest judicial bodies of the Union and the Union republics the right to Advisory opinions on constitutionality, for which it was proposed to form special panels in the composition of these courts. The conclusions of the latter were subject to submission to the Supreme body of state power, which would make the final decision.45 At the very conference the idea of “independent constitutional court” was headed out only by republican party organization and has not been discussed. The thesis of Gorbachev’s report, based on the concept of combining legislative, administrative and control functions by the Soviets, was supported: “there is a question of creating such a body in the structure of the Supreme power as the Committee of constitutional supervision, elected by the Congress of people’s deputies of the USSR. It would ensure that our laws and other legal acts comply with the Basic Law of the country, and it would have sufficient authority to do so.46 In accordance with this, the XIX party conference in its resolution “on legal reform” recommended that “in order to ensure strict compliance of laws and government regulations with the requirements of the Constitution of the USSR, it would be useful to establish a Committee of constitutional supervision...”(item 3). Further discussion around the constitutional supervision within the analyzed chronological cut was a multi-threaded, due to major political events: 1) discussion and adoption of the Law of the USSR of December 1, 1988 “On amendments and additions to Constitution (fundamental Law) of the USSR”, the USSR established the CCS (22 Oct. - 1 Dec. 1988); 2) preparation for the first Congress of people’s deputies of the USSR, planned and failed formation of the CCS (May-July 1989); 3) preparation and holding of the September (1989) Plenum of the CPSU dedicated to the platform “national party policy in modern conditions”. They became an occasion for activating or resuming a permanent discussion about constitutional supervision or control,

45 See: RGANI. F. 87. Op.1. D. 144; Orzikh M.F., Cherkes M.E., Vasiliev A.S. Legal protection of the Constitution in a socialist state / / Sov. state and law. 1988. No. 6. P. 10. 46 See: XIX all-Union conference of the CPSU: Stenogr. report. In two volumes. Moscow, 1988. Vol. 1. P. 60; Vol. 2. Pp. 74-77. See: RGANI. F. 87. Op.1. D. 144; Orzikh M.F., Cherkes M.E., Vasiliev A.S. Legal protection of the Constitution in a socialist state / / Sov. state and law. 1988. No. 6. P. 10. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 43 sometimes adding new nuances to it due to changes in the political situation. Each of these events, including the perspective of the mentioned discussion, has been recorded as in officially published47, and kept in the archives verbatim reports and reviews as well48, some documentary collections and records49, newspaper and magazine articles of that times50 and later – in separate monographies51. At first the idea of CCS was embodies in the elaborated in the CC CPSU law project of the USSR “On amendments and additions to the Constitution of USSR”, published on October 22 of 1988 for the nationwide discussion. According to it the CCS has to be elected by the Congressn of the people’s deputies of USSR from the number of specialists un the field of policy and law, consisting of the chairman, deputy chairman and 13 members of the committee for the term of 10 years. The volume of the powers of the Committee was restricted to bringing in the opinions for the law projects, and the acts of the Supreme Council of USSR and its chambers, normative acts of other state bodies and public organizations. The guidance of the review was defined by Constitution, laws, adopted by the Congress of the people’s deputies, and in some cases the laws, adopted by the Supreme Council of the USSR. In regard of the constitutions and laws of the union republics it was suggested that CCS will “accomplish the monitoring”. The project didn’t include the CCS in the

47 See: Extraordinary twelfth session of the Supreme Soviet of the USSR (eleventh convocation) November 29-December 1, 1988: Stenogr. report. Moscow, 1988. Pp. 16-18; First Congress of people’s deputies of the USSR. May 25-June 9, 1989 Stenogr. report. T. S. M., 1989. Pp. 127-128, 141, 158, 159-160. 48 RGANI. F. 2. Op. 5. D. 328. L. 90, 100, 129; D. 332. L. 7 , 32-33; D. 333. L. 17. 49 See: the Union could have been saved: the White paper. Documents and facts about the policy of M.S. Gorbachev to reform and preserve the multinational state. Moscow, 1995. Pp. 43-44; Vorot- nikov V. I. “And it was so...”. From the diary of a Politburo member of the CPSU Central Committee. Moscow, 1995. Pp. 269-270. 50 See: Savitsky V. it is Possible and the Committee, but ... // News. 1988. November 11; Kurashvili B. Supreme power: from the past to the future / / Izvestia. 1988.14 November; Lazarev B. M. “Separation of powers” and the experience of the Soviet state / / Kommunist. 1988. November. No. 16. Pp. 50-51; Lazarev L.V., Sliva A.Ya. Constitutional reform - the first stage / / Sov. state and law. 1989. No. 3. P. 13-14; Soviet legal state and legal science (Round table) / / Sov. state and law. 1989. No. 3. P. 61, no. 4. P. 59; Lazarev B. constitutional supervision. S. Z-4; Mikhaleva N., Papidze sh. Federal Union / / Pravda. 1989. July 12; Gryazin I. whether it is about federalism / / Pravda. 1989. July 26; Gudaitis R., Genzialis B. So, who knows the recipe? // Ibid.; Topornin B.N. the Constitution in the socialist legal state / / Socialist legal state: problems and judgments. Moscow, 1989. P. 37. 51 See: Stankevich 3.A. History of the collapse of the USSR: Political and legal aspects. Moscow, 2001. P. 27; Lazarev B.M. whether it Was possible to save the USSR (legal research). Moscow, 2002. P. 140; Mityukov M.A. forerunner of constitutional justice: views, projects, and institutional prerequisites (30-early 90’s of the twentieth century). Moscow, 2006. Pp. 65-78. 44 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY number of the subjects of law of the legislative initiative and didn’t foresee the representation of the union republics in it. There were several approaches in unfolded in the press discussion to the estimation of the project and the prospects of the constitutional review in the country. Some of authors assumed that in the project under discussion the competence of the CCS is unjustly narrowed to the “legal council functions”52. Others considered, that in accordance with the world practice it would be appropriate to establish the constitutional courts, but not the supervision committees”53. Finally, it was suggested that the main thing was not the nature of the body being created, but its competence. In particular, V.M. Savitsky, considering the creation of the CCS “an important and very necessary measure”, insisted on expanding the objects of constitutional supervision and the range of subjects of appeal to the CCS, believing that they should include the Supreme Court of the USSR, the Prosecutor General, public organizations, the USSR Academy of Sciences, and ultimately all subjects of the right of legislative initiative, as well as citizens. He believed that only legal experts, including representatives of the Union republics, should be members of the CCS, with the extension of parliamentary immunity to them54. Thus, the establishment of a specialized constitutional supervision (control) was linked not only with the problem of ensuring the supremacy of the Constitution, but federalism in the country, which hastened to declare Mikhail Gorbachev at the meeting of the Presidium of the USSR Supreme Soviet on 26 November 1988, while officially, the constitutional supervision was identified as a major element of not only political but also legal reform. By the end of November, the project analyzed the law under the influence of the discussion, as well as opposition from the party functionaries were adjusted in the areas of: 1) expansion of the quantitative composition of the CCS from 15 to 23 members with representation from each Union Republic and the spread of constitutional review on decrees of the Council of Ministers of the USSR and Ministerial Councils of Union republics and all acts of other state bodies and public associations; 2) ensuring the conformity

52 See, for example.: Emelyanov S. Learn political work / / Sov. Russia. 1988. 16 Nov. 53 See: Lebedev N. Need a court! // News. 1988. 12 Nov. 54 See: Izvestia. 1988. 11 Nov. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 45 of constitutions and laws of Union republics to the Constitution and laws of the USSR; 3) creating a “dualistic” constitutional supervision (a combination of “parliamentary” supervision of the Supreme Soviet of the USSR and its Presidium, as well as a specialized one in the form of a CCS)55. The last direction was emphasized by M.S. Gorbachev at the extraordinary 12 th session of the Supreme Council of USSR by the thesis, that the control functions to the full extent will be inherent to the very Supreme Council. At the same time, they eclectically noted that constitutional supervision is thought of as an element of “checks and balances” in the structure of state power56. Hence, the secondary and derivative nature of the planned specialized constitutional supervision was obvious from the sovereignty of the representative bodies of the legislative power, and latent-from the highest party control. The Supreme Soviet of the USSR generally agreed with the proposed constitutional regulation of the CCS, considering it necessary to supplement it by granting the highest state authorities of the Union republics the right to apply to this body, and the Committee itself the right of legislative initiative. As the echoes of the earlier discussions at the session of the Supreme Council was the proposal to grant the right of appeal to the CCS to the citizens, the creation of such bodies in the republics, a clearer delineation of functions and powers of the Supreme Court, Prosecutor’s office and the CCS, the assigning “reality” to the last57. And, at last, the most democratic was the opinion of the deputy V.S. Mavlikov: to elect the Committee by the wide-nation voting. But it was criticized in the scientific literature, as such the order, in opinion of some authors, would put the Committee over the Session and contradict the principle of the supremacy of the representative body, which possesses the full power, including the sphere of the constitutional control, to adopt the final decisions on the constitutionality of the laws”58. Obviously, that this critics was based on the dogma of the doctrine of the supremacy of the representative bodies of the state power, which prevailed during soviet times.

55 RGANI. F. 2. OP. 5. D. 180. L. 10; D. 181. L. 7, 56-60. 56 Extraordinary twelfth session of the Supreme Soviet of the USSR (eleventh convocation) November 29-December 1, 1988 P. 16-18. 57 RGANI. F. 2. OP. 5. D. 184. L. 33-37, 47, 69, 77, 87, 96, 137, 145, 165-166. 58 See: Lazarev L.V., Sliva A.Ya. Constitutional reforms: the first stage. Moscow, 1989. Pp. 89-90. 46 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Adopted at the extraordinary session of the “pre-perestroika” Supreme Council of USSR, the law of URRS of December 1, 1988 № 9853-XI “On amendments and additions to the Constitution of USSR” established the new state institute - Committee of the Constitutional review of the USSR. The separate positions of the articles 108, 114, 121 and the whole article 125 were devoted to it59. In accordance with them the election of this body was the exclusive power of the Session of the people’s deputies of USSR and was accomplished on the proposal of the Chairman of the Supreme Council of USSR. The independence of the persons, elected to it, while fulfilling of their duties and subordination only to the Constitution of USSR. It was defined, that that Committee was elected for the term of ten years from the number of the specialists in the field of politics and law, consisting of the Chairman, his deputy, and 21 members, including the representatives from each union republic. In doing so, they couldn’t at the same become members of the bodies, the acts of which are supervised by it. The Constitution of the USSR provided for the powers of the Committee, the range of projects and acts supervised by it, possible initiators of consideration of issues in the ССR, the legal nature of its conclusions and submissions. The rule was fixed that the organization and procedure of the CCS is determined by the law on constitutional supervision in the USSR. The CCS was established as a body of preliminary and subsequent constitutional review, whose decisions were not final. The last word belonged to the representative and legislative bodies of state power, and in some cases to the highest Executive body of state power. Therefore, it is quite natural that the Presidium of the Supreme Soviet of the USSR has the right to monitor compliance with the Constitution of the USSR and to ensure that the constitutions and laws of the Union republics comply with the Constitution and laws of the USSR. In its essence, a very contradictory institution of constitutional supervision was established, in which the “founding fathers” tried to combine two incompatible constitutional principles (the separation of state power and the sovereignty of representative authorities), which are characteristic of

59 See Vedomosti of the Supreme Soviet of the USSR. 1988. No. 49. Article 727. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 47 different socio-political systems. But at the same time, the establishment of constitutional supervision was a step forward, opening the door to a different system of political and legal coordinates. The possibility of the mergence in the structure of the supreme power of the body was accepted by many people positively, as the concrete embodiment of the idea of formation of the legal status of the state. In the scientific researches of those times unestablished CCS of USSR was classified as the body of review but not control or judicial, i.e. unassigned by the right to cancel the acts, which are found not corresponding to Constitution and laws of USSR. In addition to supervision, the CCS was recognized as an Advisory function and as a participant in improving legislation. The CCS was considered to have a high degree of independence, but the scope of its overview is not comprehensive, since it is designed to ensure legality in the activities of higher echelons of power that are not in the orbit of prosecutorial oversight. Acts of the Congress of people’s deputies of the USSR were excluded from the sphere of constitutional supervision.60 But at that time, the constitutional establishment of the CCS of the USSR was already sufficient for the scientific literature to claim “a major step on the path of reform of the political system”, the emergence of a new institution, the creation of a specialized body for the legal protection of the Basic Law of the USSR, etc 61. And put forward separate proposals to regulate the status of the CCS62. Scientific understanding of the fact of the constitutional establishment of the CCS and the time preceding it continued in the “zero” years of this century63.

60 See: See: Kurashvili B. Supreme power: from the past to the future / / Izvestia. 1988.14 Novem- ber; Lazarev L.V., Sliva A.Ya. Constitutional reform - the first stage / / Sov. state and law. 1989. No. 3. P. 13-14; Soviet legal state and legal science (Round table) / / Sov. state and law. 1989. No. 3. P. 61, no. 4. P. 59; Lazarev B. constitutional supervision / / SOC. legality. 1989. No. 7. C. Z-4. 61 See: Syrodoev N.A. a Major step on the way to reform the political system / / Pravovedenie. L., 1989. No. 2. P. 3-13; Shulzhenko Yu.L. Committee of constitutional supervision-specialized body for legal protection of the basic Law of the USSR / / Constitutional reform in the USSR: actual problems: Collection of articles. Moscow, 1990. Pp. 28-39. 62 See e.g.: Sibirko L.G. Questions of legal protection of the Soviet Constitution / / Legal reform and problems of its implementation: TEZ. docl. and post. region. science.- pract. Conf. 14-15 Sept. 1989 Krasnodar. Pp. 557-558. 63 See: Mityukov M.A. On the way to constitutional justice (1986-1991. confrontation of alterna- tives: constitutional supervision or the constitutional court). On the history of the establishment Of the Committee of constitutional supervision in the USSR / / Legal problems of strengthening the Russian state. Sat. articles. Part 17. Tomsk, 2004. Pp. 39-59. 48 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The tactics of forming the CCS of the USSR, its future personnel, especially the Chairman, were predetermined by the party bodies. Back at the July (1988) Plenum of the CPSU Central Committee, Mikhail Gorbachev directed participants to “form a Committee of constitutional supervision at the next year’s first Congress of people’s deputies of the USSR”64. In accordance with this strategy, the preparation of the law on constitutional supervision was to be carried out after the election of the CCS. But this plan in some respects was not feasible due to the lack of support in the Deputy corps, due to the aggravation of inter-ethnic relations and the “surge” already at the “parliamentary” level of a new round of discussion around the CCS. First of all, this was reflected in the resolution of issues related to the “pre- emptive” election of this body. In early May 1989, A.I. Lukyanov submitted proposals to the Central Committee of the CPSU on the composition of the CCS. Among the candidates were named major scientists in the field of law-A.G. Bykov, V.I. Vasiliev, V.T. Kabyshev, L.A. Nikolaeva, R.S. Pavlovsky, V.K. Sobakin, M. I. Piskotin, F.G. Burchak, A.A. Agzamhodzhiev, G.S. Sapargaliev, G. Itskriveli, V.O. Miller, R. Turgunbekov, and others65. However, literary and documentary sources, including archival ones, testify to the struggle for the post of CCS Chairman. Even academician A.D. Sakharov, as recalled his widow, E.G. Bonner, repeatedly told her, “that he would like to work in the Committee of constitutional supervision, which he considered extremely important, and the post of its Chairman is probably the most responsible in the country and requires absolute internal freedom and absolute honesty from the one who will hold it” 66. The May plenum (1989) of CC of CPSU on the proposal of M.Gorbachev has recommended for the position of the chairman of CCS V.P. Lomakin, ex-soviet ambassador in Czechoslovakia, despite the Objection of B.N.Yeltsin67. The meeting of the Session’s party group didn’t agree with this recommendation, considering that more competent person should head the new important body. By resolution of CC of CPSU of June 2, 1989 “the issues of the Session of the people’s deputies” to change

64 RGANI. F. 2. Op. 5. D. 143. L. 124; D. 145. L. 22. 65 See: Archive of the President of the Russian Federation. F. 3. Op. 110. D. 204. L. 1-4. 66 Cyte. po: Constitutional ideas of Andrei Sakharov. Moscow, Novella Publ., 1990. P. 81. 67 See: Vorotnikov V.I. “and it was so...”. From the diary of a member of the Politburo of the CC CCSS. Moscow, 1995. Pp. 269-270. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 49 of their previous decision it has been already recommended to this position the vice-president of AC of SSR V.N. Kudryavtsev68. In accordance with the right, granted by the Constitution to the Chairman of the Supreme Council of USSR, M.S. Gorbachev offered to the Session to elect the Chairman of CCS the academician V.N. Kudryavtsev, and his deputy -the head of the sector of the Institute of state and law -B.M. Lazarev. The representatives of the number of the higher educational establishments of the country and from the union republics – prominent specialists in the field of policy and law were recommended to the composition of the Commitеe. But they didn’t manage to form the CCS at the 1st congress of the people’s deputies. The number of deputies considered, that elections to the Committee should be delayed to the later time, in doing so, the claims were brought not only against the separate candidates, but the general political character, that the elections are not alternative, without competition, among the candidates there is not a single non-party, all of them are of old age, the population has no broad information of them, there are no representatives of the autonomous republics, groups of the deputies were deprived of the opportunity to bring forward the additional candidates. The organizational obstacle to the formation of the Committee, in the opinion of the deputy I.N. Gryazin (Estonia), was the absence of the Law on the constitutional supervision in the USSR, and these two issues should be considered “in complex”. The conceptual objections were designated against CCS. They were reduced to the reference to the “outdated” Constitution that prevent innovation “in the Federation”, and therefore, until they resolved “questions of power” no need for such a body (U. Boldyrev, Leningrad). Some of the deputies from the Baltic republics (A.A. Plotnieks and others) believed that constitutional supervision posed a threat to their sovereignty and demanded that it should not apply to the constitutions and laws of the Union republics. R.V. Gudaitis (Lithuanian SSR) proposed to change article 125 of the Constitution of the USSR and to elect the CCS only from among legal experts, consisting of 15 chairmen and 15 members of the Committee from each Federal Republic, with the implementation of the Committee’s leadership on the principle of strict

68 See: Vorotnikov V.I. “and it was so...”. From the diary of a member of the Politburo of the CC CCSS. Moscow, 1995. Pp. 269-270. 50 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY priority and granting the Union Republics the right to veto decisions that limit its sovereignty. Due to the demonstrative boycott of the CCS elections by the overwhelming majority of deputies from the Lithuanian SSR, the issue was postponed69. The departure of the Lithuanian delegation from the Congress, a well-known publicist U.Feofanov called “the beginning of the end (USSR- M.M.), because the concessions went into lawlessness”70. In the course of this “pre-electoral” discussion two different conceptual understanding of the role of the constitutional supervision in the country: as human rights (V.N. Kudryavtsev) as the additional instrument to the control activity of the Presidium of the Supreme Council of USR (M.S. Gorbachev), and it was opined, that CCS “is our variant of the constitutional court” (U.V. Golik)71. And after the Congress of people’s deputies, some state experts drew attention to the need to use this institution in the interests of protecting the rights of the Union and Autonomous republics 72. The purpose and role of the CCS in resolving inter-ethnic disputes has already been the subject of debate in connection with the discussion of the platform “national party policy in modern conditions”, which is mainly reflected in unpublished archival sources73. Members of the Politburo and secretaries of the Central Committee of the CPSU, the first secretaries of party organizations of the Union republics, statesmen, in particular, M.S. Gorbachev, V.A. Medvedev, A.I. Lukyanov, E.A. Shevardnadze, N.N. Slyunkov, A.-R. H. Vezirov, and others were involved in this discussion. Naturally, this discussion was influenced by the events in Nagorno-Karabakh. According to the authors of the draft platform, within the framework of a Federal state of law, the function of resolving disputes that may arise between the authorities and administration of the USSR and the republics could be performed primarily by the CCS of the USSR, acting as a constitutional court. The discussion of the project revealed several approaches to the problem under consideration, including: 1) adaptation of the CCS to its solution, 69 See: First Congress of people’s deputies of the USSR. May 25-June 9, 1989 stenographer. report. Vol. III. Moscow, 1989. Pp. 127-167. 70 Feofanov Y. the Rise and fall of the perestroika Parliament // news. Mosk. Veches. vol. 1991. 3 Sept. 71 See: First Congress of people’s deputies of the USSR. Stenographer. report. Vol. III. Pp. 141, 158-160. 72 See: Mikhaleva N., Papidze sh. Federal Union / / Pravda. 1989. July 12. 73 RGANI. F. 2. Op. 5. D. 307 to 311, 328, 332-333. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 51 giving it the functions of the constitutional court; 2) use of constitutional supervision opportunities for this purpose; 3) creation of other non-judicial mechanisms for its solution. Moreover, it was proposed to use these approaches in a differentiated way, depending on whether disputes between the USSR and the Union republics are resolved, or between the latter and their constituent Autonomous republics, Autonomous regions, territories and regions, in particular, to create constitutional oversight committees in the Union republics. They, “like the Union court, would act as constitutional courts, but they have already considered all disputes that may arise between the republics and their constituent Autonomous entities”74. Some of them assumed, that solving of the inter-ethnic disputes has to be the prerogative of the Congress of the people’s deputies or its chamber of the Council of Nationalities. Under influence of all these proposals and pressure from the party leaders of the number of union republics from the final edition of the platform the formulation that CCS in the resolution of the inter-ethnic disagreements acts as the constitutional court. The bilateral decision was consolidated: “This function could be accomplished by the Committee of the constitutional supervision, and in necessary cases – the Supreme Council of USSR and the Congress of people’s deputies of USSR”, that further influenced the norms of the Law “On constitutional supervision in USSR”. 2. Constitutional consolidation on December 1, 1988 of the Institute of constitutional supervision 75 debate, as the constitutional regulation of the status of the CCS has not completed and was continued to the next stages of his history, and largely involve the development and adoption of the Law on constitutional supervision of the USSR and the subsequent changes in the Constitution of the USSR. This formally took a whole year, and the Commission of the Congress of people’s deputies of the USSR for the preparation of this law was formed only on June 9, 198976, S.S. Alekseyev, D.A. Kerimov (the chairman of the working group on elaboration of the draft law) and A.I. Ekimov

74 See: RGANI. F. 2. Op. 5. D. 311.l. 38-44, 52-53, 76-81; D. 328.L. 114 vol., 115 vols.; D. 332. L. 53-61. 75 Law of the USSR of December 1, 1988 “on amendments and additions to the Constitution (Basic Law) of the Union of Soviet Socialist Republics” / / Vedomosti of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR. 1988. No. 49. Article 24. 76 See: Vedomosti of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR. 1989. No. 1. Article 24. 52 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

(the member of the named group) wrote of it 77. Rather short information of the Commission and its working group, its composition is contained in the official materials of the Congress of the people’s deputies of the USSR and its Supreme Council. The published transcripts of the I-IV Congress of people’s deputies of the USSR are devoted directly to the development and adoption of the law of the USSR “on constitutional supervision in the USSR” and subsequent clarification of its constitutional status78, including the reports (of the main and editorial commission) D.F. Kerimov and speeches of the deputies in debates79, separate comments of the scientists to the project of this law”80, and also official and inofficial publications of the law and resolution of the Supreme Council of USSR on the order of its enacting, and also connected with it amendments to the article 125 of the Constitution of the USSR81. In March of 1990 new changes and additions, were brought in this legislation, caused by the establishment of the post of the President of the USSR82. In the wake of the adopted legislation on the CCS of the USSR, “optimists” started talking about it as a “pillar of the rule of law”, “guarantee of the legality of the

77 See: Kerimov A.A. Speech at the all-Union scientific and practical conference “Formation of a socialist legal state” / / Sov. state and law. Moscow, 1990. No. 5. P. 34; Kerimov D.A., Ekimov A.I. constitutional supervision in the USSR / / Sov. state and law. 1990. No. 9. Pp. 3-13; Alekseev S.S. the Third power / / Izvestia. 1991. 23 Feb. 78 In terms of the analysis of the contribution of each of these conventions is of interest paragraph “the first Congress of people’s deputies of the USSR on the constitutional supervision in the USSR” in a recent monograph of J.I. Hovsepyan (see her book: The Constitutions and constitutional law in Russia (the period from the beginning of the XX-early XXI century). Rostov-on-don, 2013. Pp. 227- 230). 79 Kerimov D.A. Report at the II Congress of people’s deputies of the USSR “on the draft Law on constitutional supervision in the USSR” / / Second Congress of people’s deputies of the USSR. Bull. No. 15. 21 Dec. 1989.; Truth. 1989. 22 Dec.; News. 1989. On 23 Dec.; Extraordinary third Con- gress of people’s deputies of the USSR March 12-15, 1990. Moscow, 1990. Pp. 18-136. 80 See e.g.: Comments on the draft law of the USSR “on constitutional supervision of the USSR”. Dec. 1989. Kovachev D.A. Problems of constitutional law. Moscow, 2003. Pp. 282-284. 81 Law of the USSR of December 23, 1989 “on constitutional supervision in the USSR” / / VSND and VS USSR. Moscow, 1989. No. 29. Article 572; law of the USSR on constitutional supervision in the USSR. Adopted at the second Congress of people’s deputies of the USSR on December 23, 1989, Moscow, 1990. 16 p.; Resolution of the Supreme Soviet of the USSR of December 23, 1989 “on the procedure for putting into effect the law of the USSR” on constitutional supervision in the USSR “ / / VSND and VS USSR. 1989. No. 29. Article 573; law of the USSR of December 23, 1989 “on amendments and additions to article 125 of the Constitution (Basic law) of the USSR” / / VSND and VS USSR. 1989. No. 29. Article 574. 82 Law of the USSR of March 14, 1990 “on the establishment of the post Of President of the USSR and making changes and additions to the Constitution (Basic law) of the USSR” / / VSND and VS USSR. 1990. No. 12. Article 189. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 53 highest echelons of power”83. “Pessimists” expressed a preference for judicial control over the constitutionality of normative acts as a more effective form in comparison with the supervisory functions assigned to the Committee84. Subsequently, this chronological segment in the background of the CCS is reflected in detail in one of our articles 85, some estimates concerning the adoption of the law on constitutional supervision and its subsequent operation are given in the historical and legal literature 86. Certain touches relating to the controversy surrounding the draft are also found in the parliamentary diaries published by V. B. Isakov87. Discussions at the second Congress of the people’s deputies, connected with the discussion of the issues, concerning the adoption of law on constitutional supervision of the USSR, had in a large extent political character, than legal88. Accompanying the main discussion problem (whether to create a CCS and whether a law on it is necessary)89 were questions of conceptual scale (about the status of this body: name, essence) and the second plan, derived from a positive solution of the main task. These included questions about the purpose and principles, composition and method of formation and

83 Constitutional supervision-a step towards a legal state / / Communist. 1990. No. 4. S. 68-76; E. Kumankov of constitutional supervision – the support of the legal state // Sov. justice. 1990. No. 3. Pp. 29-31; Lazarev B.M. Guarantees of legality of decisions of higher echelons of power. legality. 1990. No. 4. Pp. 8-11. 84 See: Morshchakova T.G. Judicial reform: SB. reviews. Moscow: INION an USSR, 1990. 90 p. 85 See: Mityukov M.A. On the way to constitutional justice (1986-1991. confrontation of alterna- tives: constitutional supervision or the constitutional court). Adoption Of the law on constitutional supervision in the USSR / / Legal problems of strengthening the Russian state. Sat. articles. Part 17. Tomsk, 2004. Pp. 60-90. 86 See: Biryukov N.I., Sergeev V.M. Formation of institutions of representative power in modern Russia. Moscow, 2004. P. 142; Lazarev B.M. whether it Was possible to save the USSR. P. 141; Vitruk N.V. Constitutional justice: Judicial and constitutional law and process. 2nd ed. Moscow, 2005. P. 62. 87 Isakov V.B. Chairman of The Council of the Republic. Moscow, 1996. Pp. 96-97. 88 The nature of this discussion and the circumstances that influenced it successfully, in our opinion, were revealed by A.M. Barnashov, who wrote: “the nature of the discussion was predetermined, first of all, by the need to “embed” this new potentially quite democratic institution in the former alien system Of Soviet sovereignty, which in its essence rejected any elements of checks and balances and even weak attempts to self-limit power.” Serious “blending” on the ensuing controversy was a challenging socio-economic and political situation in the country, the aggravation of interethnic rela- tions, a strong confrontation between the Federal center and the Union republics, many of them in their quest for sovereignty began to reject the principle of supremacy of Union law over Republican” (see his work: the role of the Committee of constitutional supervision of the USSR in the legal pro- tection of the Constitution // Actual problems of state and law in the modern period. Part 1. Tomsk, 1998. Pp. 85-86). 89 See: Second Congress of people’s deputies of the USSR. Moscow, 1989. Bull. No. 12-19. 12-23 Dec 54 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY rotation of the CCS; the status of its members, the objects of constitutional review, powers; the scale of assessments applicable to the considered acts of the subjects of circulation, the legal force of the opinions of the CCS; the ratio of pre-and post-supervision, the distinction between constitutional and prosecutorial predestination contours of the bodies of constitutional oversight in the republics 90. In these discussions, according to our calculations, not less than 50 deputies, made speeches, including written applications of some of them. This is, in particular, state and public figures: M.S. Gorbachev, A.Ya. Suharev, U.N. Afanasyev, G.A. Burbulis, F.M. Burlatskiy, R.A. Medvedev, G.H. Shakhnazarov; prominent scientists-economists P.G. Bunich, T.I. Zaslavskaya, G.A. Popov, etc., lawyers D. A. Kerimov, A.A. Sobchak, A.M. Yakovlev, A.I. Kazannik; representatives of all Union republics, including the Baltic States, as well as some autonomies. Transcripts of the Congress, political and legal journalism of the time reflect the opposition of two trends in relation to the adoption of the law on constitutional supervision and the election of the CCS. The first-supported the submitted draft law and considered it necessary to form a Committee. The majority of deputies (1595 people’s deputies out of their constitutional number of 2250) proceeded from the fact that the Law is due to: “historical circumstances that require the immediate creation of a mechanism that ensures strict, uniform and consistent execution of legislative acts” (D.A. Kerimov); “painful” processes in the Union republics that ignore the supremacy of the Constitution of the USSR, so in the interests of the Union and the rule of law to create constitutional supervision in order to normalize the economic situation and interethnic relations (I. Demidov, Penza region); the need to protect the democratic rights of citizens from discriminatory laws of the Union republics, as well as to protect national minorities (V.I. Yarovoy, E.V. Kogan, V.I. Alksnis, etc.); the creation of a new political system, the attribute of which will be constitutional supervision (A.A. Sobchak, G.K. Kryuchkov, etc.).

90 Ibid. Bull. No. 2, 5,15-19 PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 55

Those who expressed another tendency (437 deputies, including the significant part of the representatives from the Baltic republics, supported by interregional deputy group, considered that there was no necessity as in law of the constitutional supervision, so in establishment of the corresponding Committee, as it is not allowed to defend “the immutability of the Constitution of USSR, which was outdated” and the adoption of the law will slow down the legislative process, and CCS is necessary for the developed legal state, that still has been built. (А.А. Plotnieks)91. Supporters of this position believed that “premature” constitutional supervision would serve “anti-perestroika reactionary goals”, lending “sovereign rights of the Union republics”, and depriving them of “the right to sovereign legislation” (V. Landsbergis, M.I. Lauristin, I.N. Gryazin, V.K. Moteka). In addition to these “key” arguments, other “side” theses were put forward (sometimes contradictory and absurd in their essence) about “deforming the plan of the Committee of constitutional supervision”, because foreign, in particular American experience was not taken into account (F.M. Burlatsky); about the illogicality of voting for the creation of the Committee, since it will prevent the implementation of the slogan “All power to the Soviets!” and “must oppose democracy”; that “an Agency for the protection of the pre-revolutionary Constitution is being created” (A.V. Menzhurenko, Omsk region), about the “prematurity” of the CCS due to the “disassembly” of the Constitution (R.A. Medvedev, Yu.N. Afanasiev, etc.). Prominent representatives of the country’s political and intellectual elite were also among the opponents of including issues on constitutional supervision in the Congress agenda: G.A. Arbatov, P.G. Bunich, G.E. Burbulis, F.M. Burlatsky, T.I. Zaslavskaya, V.A. Korotich, R.A. Medvedev, G.H. Popov, R.Z. Sagdeev, and others. Historians state: “there was a paradoxical situation: while democratic deputies objected to the institution with the reputation and status of a democratic symbol, their opponents from the ranks of the party and state nomenclature suddenly started talking about the rule of law and human rights”92.

91 In the words of A.I. Kazannik (Omsk), this idea was expressed in the opinion, “ since we do not have a stable Constitution of the USSR, we will not be able to effectively exercise this control (Ibid. Bull. No. 15. - P. 6). 92 See: Biryukov N.I., Sergeev V.M. Decree. Op. P. 142 56 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The sharp political dispute around this issue was ended in compromise93. According to which the positions of the law, concerning the supervision on the correspondence of the constitutions and laws of the union republics to the Constitution and laws of USSR, enter into force simultaneously with the future amendments and additions of the section of the Constitution of the USSR on national-state structure. This compromise in main features is reproduced by D.A. Kerimov in the report of the Editorial commission94, and then by the Congress of the people’s deputies in a special resolution. It was established that the provisions of the law on the constitutional supervision in the USSR concerning the supervision of compliance of the constitutions and laws of Union republics to the Constitution and laws of the USSR shall enter into force simultaneously with the amendments section of the Constitution of the Soviet Union on the national-state system of the USSR 95. This, according to the opinion expressed fifteen years later by N.V. Vitruk, the possibility of a full-fledged functioning of the constitutional supervision Committee was “blocked”96. But S.A. Avakyan gave more cautious assessment on this issue earlier, believing that “the possibilities of the CCS in relation to acts of the Union republics in General can be considered significantly weakened by this reform.”97 At the second Congress the deputies defended or supported the positions of including to the number of the goals of the constitutional supervision the protection of the rights and freedoms of the person. (A.A. Sobchak, M.I. Umarhodjayev), on the principle оf the independence of the constitutional supervision (D.A. Kerimov), increasing the projected composition of the Committee up to 27 persons, including the representative of each union republic, and also of the ensuring the representation in it from the autonomous republics in whole, equating of the CCS members on their status to the national deputies of the USSR98; rights of the citizens through the

93 This compromise and the “conciliatory role” of M. S. Gorbachev and his assistant G.H. Shakhnaz- arov is evidenced by the second’s note dated December 21, 1989 to Gorbachev and his “co-report” at the Congress of people’s deputies of the USSR (see: Shakhnazarov G. Decree. Op. Pp. 444-445; Second Congress of people’s deputies of the USSR. 1989. Bull. No. 12,15). 94 See: Second Congress of people’s deputies of the SSR. Bull. No. 18,19. 95 See: VSND and the Soviet armed forces. 1989. No. 29. St. St. 572, 573, 574. 96 Vitruk N.V. Constitutional justice: Judicial and constitutional law and process. P. 62. 97 Avakyan S.A. the Constitution of Russia: nature, evolution, and modernity. Moscow, 1997. P. 92. 98 See: Second Congress of people’s deputies of the USSR. Bull. # 15-19. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 57 authoritative bodies to inform the Committee on the unconstitutionality of the acts (U.N. Sultangazin)99. At the same time were rejected the ideas of: the possible establishment of the constitutional court instead of CCS (A.A.Sobchak), I.D. Hadyrke, V.I. Yarovoy)100, of the project the right of CCS on its own initiative to consider the issues of the constitutionality of the normative acts; formation of the Committee on the basis of alternative and competitive elections, setting the age limit for election to it and reducing the quota of the number of CCS members subject to rotation (B.V. Kryzhkov, M.I. Umarkhodjaev); exclusion all acts of the Union republics, as well as disagreements between the Union republics and autonomies from the sphere of constitutional supervision of the USSR; exclusion from the objects of constitutional review the acts of Congress and the Supreme Soviet of the USSR, its unratified agreements, guiding explanations of the Plenum of the USSR Supreme Council, acts of the Prosecutor General of the USSR and the Chief state arbiter of the USSR, having a normative character, regulations of public organizations (E.U., Kim, A.Y. Sukharev, A.M. Yakovlev); the establishment of a “solid” pre-and post constitutional review (A.L. Markevich); expanding the range of subjects to apply to the CCS, granting this right to citizens, national minorities, individual social groups, public organizations, each people’s Deputy of the USSR and one-fifth of the deputies of the Supreme Soviet of the Union Republic (U.N. Sultangazin, M.I. Umarkhodzhaev)101.

99 See: Ibid. Bull. No. 16-17. This approach was already perceived critically in legal circles, includ- ing those elected at the Congress in the kkn of the USSR. Deputy Chairman of the Committee B. Lazarev wrote: “If I were a people’s Deputy, I would vote for another legislative decision: to provide for the possibility of direct appeal of citizens to the Committee about the legality or illegality of the regulations under its supervision. These are not complaints in their traditional sense, but signals about contradictions in the sphere of legislation that need to be eliminated, because each such contradiction can then cause the publication of a large number of illegal individual acts.” A similar opinion was expressed a year earlier in the literature by Z.M. Chernilovsky (Lazarev B. Guarantees of the legality of decisions of the highest echelons of power, P. 9; Chernilovsky Z.M. the Legal state: historical experience). state and law. 1989. No. 4. P. 57). 100 See: Ibid. Bull. No. 15-17. In this regard, G. Shakhnazarov recalls: “Gorbachev failed to solve another important task. Lawyers urged him to establish a constitutional Court at the same time as the Parliament, but there was also a lot of pressure from those who feared that the Court would indeed begin to pass verdicts, correcting the President and the Supreme Council. To people who had barely left the old system and retained its prejudices in their minds, such an order seemed both unacceptable and unfair. It is a different matter if the Board signals that” not so “ in the decree and law. In accordance with this, a Committee of constitutional supervision was created, devoid of real powers” (see Shakhnazarov G. Decree Op. 152). 101 See: The second congress of the people’s deputies of USSR. Bul. № 2, 5, 15-19. 58 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Following this discussion, the number of interesting theoretical conclusions and critical views were expressed. One of them was that the constitutional review stands above “the prosecutor’s one” (V.N. Kudryavtsev)102, fills in its “gaps” and as the result the constitutional review and the prosecutor’s supervision in total involve the acts of all the state bodies and management” (B.М. Lazarev)103. Yu. Reshetov also believed that from the point of view of modern international standards, “it would probably be necessary to give the Committee the right to check the compliance of our Constitution and laws of the USSR with international legal acts ratified by the Soviet Union, all international obligations of the country, and, above all, the covenants on human rights.104 This was in line with M.I. Umarkhodzhayev’s amendment that international treaties, pacts and conventions should also be the criterion of constitutionality. But such ideas the law on the constitutional oversight in the USSR perceived only partially, specifying in article 18 of the provision on necessity in the conclusion of the CCS conclusion about conformity or discrepancy of the considered act or its separate provisions of the USSR Constitution or the laws of the Union, and where appropriate also to international obligations” (emphasis added – M.M).105 More vivid essence of the constitutional supervision in our country, of course, expressed in legal force of the CCS decisions and their direct conditionality for the realization from the will of the highest representative body of the state power. Officially in this circumstance there was the advantage, differing from the west model of the legal safeguarding of the Constitution. Delivering a speech at the Second Congress, D.A. Kerimov considered “democratic principle” the fact that, in contrast to similar bodies in the capitalist countries, whose decisions usually overturned unconstitutional acts, the opinions of the CCS of the USSR do not cancel, and also do not suspend the unconstitutional acts of the USSR, not complying with constitutions of Union republics, as well as laws and other acts adopted by the Congress of people’s deputies of the USSR. It could suspend all other acts under its supervision if they were unconstitutional until the discrepancy indicated in the report was resolved.

102 Kudryavtsev V. the Constitution has been amended. legality. 1991. No. 4. P. 5. 103 See: Social. legality. 1990. No. 4. P. 9. 104 See: constitutional supervision is a step towards a legal state. P. 69. 105 Second Congress of people’s deputies of the USSR. Bull. No. 16,18. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 59

The authority that issued the act must eliminate this discrepancy within three months. If it is not eliminated within the specified period, the Committee enters with a submission to the appropriate body for the cancellation of these acts. The opinions of the Committee, as a rule, were consultative, excluding those, which concerned the acts, breaking the human rights and freedoms, consolidated in the Constitution. As for the opinions on resolving the disputes between USSR and union republics, between the last, between the union republics and national-state and national-territorial establishments on the constitutionality of the acts, adopted by their state bodies and management, in the opinions of B.M. Lazarev and one couldn’t make a conclusion on the legal force of the decisions of the Committee on such disputes. A step back in comparison with that model of the constitutional supervision, which was foreseen by the article 125 of the Constitution (in the edition of December 1, 1988), was the supplement of it with the position, that the opinion of CCS on the unconstitutionality of the act or its separate positions could be dismissed by the decision of the Congress, adopted by two third of the voices of the common people’s deputies number. If the proposal to reject the Committee’s opinion does not receive this number of votes at the Congress, the act and its individual provisions that do not correspond to the Constitution or laws of the USSR must become invalid, except for the constitutions of the Union republics. This novel was justified by reference to article 174 of the Basic Law, which establishes the majority of votes necessary to change the constitutional norms. But even contrary to the above, D.A. Kovachev was offered to overcome the conclusions of CCS by a simple majority of votes of the Congress of people’s deputies, so that “the right to supervision does not turn into a veto right”106. To a certain extent, the above-mentioned provision was neutralized by the amendment that the opinion of CCS, which notes a violation of the basic human rights and freedoms enshrined in the Constitution of the USSR and in international treaties ratified by the USSR, entails the loss of force of such an

106 This addition, according to Mikhail Gorbachev, extended to the constitutions and laws of the Union republics. The same position was held by the Chairman of the CCS, S. S. Alekseev (see: Sec- ond Congress of people’s deputies of the USSR. Bull. No. 15,18,19; Alekseev S. S. Constitution and power / / Izvestia. 1990. 2 Dec.). 60 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY act or its individual provisions from the moment of opinion adoption. Such a variety in the legal consequences of the opinions of CCS conditioned the emergence of the number of researches on classification of this acts of the participation of the Parliament and its chambers, possibility of the participation of the Parliament and its Chambers – Nationalities Council in resolving of the constitutional disputes and reducing the threshold to the Congress of the people’s deputies for overcoming the conclusion of the Committee107. The political-legal estimation of the constitutional supervision, regulated by the article 125 of the Constitution (in edition of December 23 1989) was from enthusiastically optimistic to negative108. Many have argued that “this is an important step towards the formation of legal state”, a “revolutionary step” “event of fundamental importance from the point of view of strengthening the rule of law in the country.” Some researchers linked it to the upcoming final decision on the separation of powers and considered the CCS an important element of the human rights protection mechanism. It was assumed that it would actively influence the process of drafting a new Constitution, especially its section on the rights and freedoms of citizens. There was even an opinion about the identity of the national constitutional supervision, since at its foundation the legislator “refused to copy bourgeois forms of constitutional control”. N.I. Nezhimova emphasized that the CCS is “a new body, both in form and content, which has no analogues in the history of the creation and activity of state bodies in the USSR”. F. Burlatsky associated “the success of a complex case-the creation of the Committee of constitutional supervision of the USSR” with the parliamentary approach to it109. Zh.I. Hovsepyan gave a more “balanced” assessment of the Law of December 23, 1989. She believed that they had made changes to the system

107 See: Lazarev B. Guarantees of legality of decisions of the highest echelons of power. P. 10; Shulzhenko Yu.L. Committee of constitutional supervision-specialized body for legal protection of the basic Law of the USSR / / Constitutional reform in the USSR: Actual problems. Moscow, 1990. Pp. 34-36; He. Parliament and a specialized body of constitutional supervision and control / / Separation of powers and parliamentarism. Moscow, 1992. S. 115-117; Barnashov A.M. Decree. Op. Pp. 87-88; Kryazhkov V.A., Lazarev L.V. Decree. Op. P. 43. 108 See: VSND and the Soviet armed forces. Moscow, 1989. No. 29. Article 574. 109 See: Lazarev B. Edict. Op. p. 8; E. Kumankov of the Decree. Op. P. 29-31; Shulzhenko Y.L. Committee of constitutional supervision – a specialized body for the legal protection of the basic Law of the USSR. P. 38; Nezhimova N.I. constitutional control in a legal state / / State-legal aspects of the democratization of Soviet society / ed. by S.A. Avakyan. Moscow, 1990. P. 54-55; Burlatsky F. Freedom of everyone is freedom of all / / people’s Deputy. 1990. No. 1. P. 50 PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 61 of “checks and balances” provided through the mechanism of constitutional supervision. These changes, on the one hand, strengthened the position of the CCS, and on the other – weakened it. The first changes, J.I. Hovsepyan related: the spread of constitutional review to the laws and other acts adopted by the Congress and not only their projects; establishing a rule that the Committee’s opinion may be rejected only by the decision of the Congress of people’s deputies of the Soviet Union, and qualified majority of votes; making definitive conclusions of the CCS on the constitutionality of the acts (or their provisions), violate the rights and freedoms of citizens. The author quite reasonably attributed the negative changes to the fact that the CCS was deprived of the right to suspend the provisions of the constitutions of the Union republics110. Later the critical assessments of the CCS, the status of which, was clarified by the “second wave of the constitutional renewal”, became prevailing111. Its shortcomings were that it didn’t resolve the problems of the power’s division in the broad plan and was “the partial measure”112 and didn’t not posess the right to repeal the acts under review and “wasn’t ready to quick reaction in political situations”113. The dissatisfaction by the legislatively consolidated model of the constitutional review, before the activity of CCS caused the flow of proposals of the scientists on broadening of the circle of its authority, assigning the obligatory force to the decisions of the Committee, releasing it from advisory duties, granting the citizens the right to address with the constitutional complaint to CCS, tightening of the demands to the candidates to the members of the Committee (concerning the age, education, length of legal service). U.L. Shulzhenko, in particular, considered it necessary to update the persons, elected to CCS from autonomous establishments, annually, to let the representatives of all the autonomies participate in its activity in the period

110 Ovsepyan Zh.I. on the course of constitutional reform in the USSR. Pp. 11-12. 111 See: Topornin B.N. constitutional reform-the way to a legal state. state and law. 1990. No. 4. Item 11. 112 See: Stepanov I.N. Parliamentarism and democracy / / Constitutional reform in the USSR: Actual problems. Moscow, 1990. P. 25; morshakova T.G. Judicial reform. Moscow, 1990. P. 51. 113 See: Lazarev B.M. Committee of constitutional supervision of the USSR (summing up). P. 23; Archive of the Constitutional Court of the Russian Federation. Op. 1993, D. 16. Vol. 1. Pp. 147-148. 62 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of ten years114. These proposals occurred unclaimed. Extraordinary Third Congress of the people’s deputies of the USSR (March 12-15, 1990) brought to Constitution only those changes, which were connected with the establishment of the President’s post of the USSR115. At the same time, the Congress became a tribune for continuation of the discussion on constitutional supervision. They concerned, mainly, the future interrelations of the President and CCS. In the report of A.I. Lukyanenko “On amendments and additions to Constitution of the USSR and establishment of the President’s post”, he emphasized that CCS is obliged to accomplish control over the decrees of the head of the state. But this assurance didn’t convince the deputies. While the dispute of E.U. Salayev, A. Akayev, U.V. Blohin accentuated on this problem 116. It is recognized in literature that the establishment of the President’s institute in USSR and corresponding new amendments to the Constitution of the USSR resulted in assigning the right to put the issues for consideration of the decrees of the President to their correspondence to the Constitution and laws of USSR by CCS exclusively to the Congress and Supreme Council, and the authorities of the Chairman of the Supreme Council of USSR and the Presidium of the Supreme Council of USSR on assigning tasks and proposals to CCS on opinions proceeded to the President of USSR117. According to D.A. Kerimov and A.I. Ekimov, the establishment оf the post of the President of the USSR led to a change in the competence of the Presidium of the Supreme Soviet of the USSR, including in relation to its control over compliance with the Constitution of the USSR. And constitutional supervision at the all-Union level was carried out exclusively by the CCS of the USSR118. It is difficult to agree with this point of view, as the mentioned authority of the Presidium of

114 See: constitutional supervision is a step towards the rule of law of the state. P. 75; Pozhimova N.I. Decree. Op. Pp. 56-57; Constitutional reform in the USSR: Current problems. Pp. 32-37, etc. See: constitutional supervision is a step towards the rule of law of the state. P. 75; Pozhimova N.I. Decree. Op. Pp. 56-57; Constitutional reform in the USSR: Current problems. Pp. 32-37, etc. 115 See: law of the USSR of March 14, 1990 “on the establishment of the post of President of the USSR and making changes and additions to the Constitution (Basic Law) of the USSR” / / VSND and VS USSR. 1990. No. 12. Article 189. 116 See: Extraordinary third Congress of people’s deputies of the USSR March 12-15, 1990. C. 18, 24, 89, 119, 136. 117 See: Mityukov, M.A., the forerunner of the constitutional justice. Pp. 102-103. 118 See: Kerimov D.A., Ekimov A.I. Decree. Op. 6. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 63 the Supreme Council of the USSR turned into prerogative of the President of USSR. In accordance with the par.1 article 127-3 of the Constitution of the USSR he acted as a guarantor of rights and freedoms of the citizens, Constitution and laws of the USSR. The practice of the head of state in this direction in fact was identical to the corresponding activity of the Presidium of the Supreme Council of the USSR. Thus, in the sphere of legal protection of the Constitution of the USSR President and CCS in their activity сcomplemented each other and conditioned each other119. That very aspect was mentioned at the Third Congress of the people’s deputies. In particular, in the speech of L.D. Magamadov (Checheno- Ingushetia) it was emphasized: “Both President and the Committee have to follow the observation of the laws”. “Probably, it is better to leave this functions to the head of the state, and to oblige the Committee to observe the President not to break the Constitution of the USSR”. However, in the balance of the control and supervision functions the Congress didn’t change anything: with some adjustments to the relations of the head of state and CCS it has transferred that model of relations, which existed earlier between Presidium of the Supreme Council and the Committee of the constitutional supervision of the USSR. In connection with the inclusion in the Constitution of the USSR of immunity of the President of the USSR was a question not only of possible legal grounds for the displacement of the head of state, but also the procedure of its implementation 120. After a brief discussion, it was established that the decision to remove the head of state is made by the Congress of people’s deputies of the USSR on the initiative of the Congress itself or the Supreme Soviet of the USSR, taking into account the conclusion of the Committee of constitutional review of the USSR (article 128-8 of the Constitution of the USSR). A more detailed exchange of views took place on the question on the submission of which official CCS is elected: The President of the USSR or the Chairman of the Supreme Council of the USSR? In the bill under discussion, this issue was resolved in favor of the head of state, which caused a sharp rejection of the people’s deputies.

119 See: A.M. Barnashov Decree. Op. Pp. 90-91. 120 See: Extraordinary Third Congress of people’s deputies. Volume 3. Moscow, 1990. Pp. 282, 293, 312. 64 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

A.I. Kazannik said that it is necessary to draw a clear distinction between authorities, to fix a system of checks and balances, so that not a single body of the state can rise above another. Proceeding of this thesis, the deputy assumed, that if CCS interprets the decrees of the President, correlates them with the Constitution of the USSR and can conclude, that they are unconstitutional, then the President is not entitled to appoint (in the meaning – to present-M.M.) the members of Committee of the constitutional review of the USSR. A.I. Kazannik offered the new order of CCS formation. One third of its composition comprises the President, one third – Council of the Union and one third -Council of Nationalities of the Supreme Council of the USSR, what balances powers and the system of checks and balances emerges. Though this opinion caused interest of the certain deputies, in whole, the Congress didn’t decide to change the order of the CCS elections. In addition, opponents of granting the President of the USSR the right to submit candidates to the Congress for election to the CCS agreed that if this procedure is adopted, the Committee will become part of the President’s office and will not be able to actually perform its functions. In this regard, it was proposed to leave the Chairman of the Supreme Soviet of the USSR the right to make proposals on the personal composition of CCS V.N. Kudryavtsev, Chairman of the Editorial Committee for the discussion of the draft law, said that “it is not necessary for the President to represent the Committee of constitutional supervision of the USSR, to which he himself is supervised”... And we offer... give this right to the Chairman of the Supreme Soviet of the USSR»121. As a result, the established on December 1, 1988 order of CCS election was retained. With adoption of the law on constitutional supervision rather substantial works on the constitutional supervision emerged in the country. It is first of all, already mentioned article of D.A. Kerimov and A.I. Akimov122, and then the publications on concept of the constitutional supervision, of its correlation with the prosecutor’s supervision and other types of constitutional

121 See: Extraordinary Third Congress of people’s deputies. Volume 1. Pp. 92, 108-109; Volume 3. Pp. 164, 221-222. 122 See: Kerimov D.A., Ekimov A.I. Decree. Op. Pp. 3-13. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 65 and supervising activity and, at last, on the perspectives of development123. In some union republics the interest to the studies in this field also occurred124. Subsequently, some laws of the USSR specify certain provisions of the law of the USSR “On constitutional supervision in the USSR”. In particular, the law of the USSR of April 10, 1990 “On the basis of economic relations of the USSR, the Union and Autonomous republics” proclaims that the Supreme state authorities of the republics can submit questions about the compliance of the Constitution of the USSR and the laws of the USSR of the acts of the supreme state authorities and management of the USSR regulating economic relations to CCS (article 6)125. Such norms existed in the laws of the USSR of April 26, 1990 “On distinction of the authorities between the Union of SSR and the subjects of federation.”, of October 24, 1990 “On ensuring the operation of laws and other acts of legislation of the USSR”, of May 16, 1991 ‘On the Control chamber of the USSR”, of May 17, 1991 “On the Supreme arbitration court of the USSR” 126. Unsuccessful attempt to elect the CCS was undertaken at the First Congress of the people’s deputies of the USSR. The Chairman of the Supreme Council of USSR M.S. Gorbachev submitted all the candidates headed by the academician V.N. Kudryavtsev127, and in the Regulation of the Congress

123 See: Pryakhina T.M. the Concept of constitutional supervision in the USSR. Saratov, 1990. 25 p.; She. Constitutional supervision in the USSR: prospects for development / / Problems of constitutional law: Perestroika and constitutional reform: inter-University. science. Saratov, 1990. P. 78-94; blyakhman B.Ya. on differentiation of functions of constitutional and prosecutorial super- vision / / Scientific information on the fight against crime: problems of the theory of legality and pros- ecutorial supervision (Materials of the extended meeting of the coordinating Bureau on problems of legality and prosecutorial supervision, November 19-20, 1990). INF. letter No. 129. Moscow, 1991. P. 58-61; aranovsky K.V. Prospects for constitutional judicial supervision in the conditions of Soviet statehood. Problems of modern legislation and prospects for its development. Vladivostok: DSU pub- lishing House, 1991; Emelyanov E.A. Correlation and interaction of constitutional and prosecutorial supervision / / Sov. state and law. Moscow, 1991. No. 4. P. 3-10; Zhuravlev N.N. Legal protection of constitutional institutions / / Constitutional regulation of the Supreme representative authorities of the USSR: Dis. Cand. the faculty of law. Sciences: 12.00.02. Moscow, 1991. Pp. 190-192. 124 See: Kholikov K.N. On the issue of creating the Institute of constitutional supervision in the Soviet state / / Legal state and development of legislation of the Tajik SSR. Dushanbe, 1991. Pp. 10-17; He. Correlation of constitutional supervision with other types of control and supervision / / Bulletin of the Tajik state University. Series “History of jurisprudence”. Dushanbe, 1991. No. 2. Pp. 92-95; He. Constitutional supervision in a legal state // proceedings of the Academy of Sciences of the Republic of Tajikistan. Series “Philosophy and law”. Dushanbe, 1992. No. 3. Pp. 52-57. 125 VSND and the Soviet armed forces. 1990. No. 18. Article 315.. 126 VSND and the Soviet armed forces. 1990. No. 19. 329; No. 44. 918; 1991. No. 23. 649 and 651. 127 See: First Congress of people’s deputies of the USSR. May 25-June 9, 1989: Stenogr. report. Vol. 3. M. S. 127-167. 66 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of the people’s deputies of the USSR the special section “The election of the Committee of the constitutional control of the USSR” was provided for128. But this was not implemented for a number of reasons, including the lack of a legislative framework and serious contradictions between the Union republics and Union deputies of different political views. On this issue, there are only isolated works and then a later edition129. B.N. Lazarev gave detailed reasons for this “failure”. Among them, he named ideological factors and traditions (the conflict of the principles of separation of powers and sovereignty of the Soviets), the crisis of the national-territorial structure of the USSR, the competition of the idea of the constitutional court with constitutional supervision. “Few people wanted to give the Committee of constitutional supervision of the USSR broad rights. Even fewer were those who were in a hurry to form it, “the scientist bitterly recalled. “It is obvious,” wrote D.A. Kerimov and A.I. Ekimov, “that there are many forces in society that are not interested in the existence of the institution of constitutional supervision. The extreme left that it prevents “going forward”, while the extreme right fears losing the opportunity to continue to ignore the Constitution and the law with impunity»130. The following search of the candidate to the post of the CCS Chairman is reflected in the memories of G.H. Shahnazarov and the materials of the Second Session of the people’s deputies of the USSR131. A.A. Sobchak, S.S. Alekseyev were named in them. The second Congress on the submission of M.S. Gorbachev elected the Chairman of CCS – the member-correspondent of AS of the USSR S.S. Alekseyev and his deputy- doctor of law, professor B.M. Lazarev, the Supreme Council of the USSR was entrusted to elect at the

128 See: Regulations of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR dated December 20, 1989. 1989. No. 29. Article 565; Resolution of the Supreme Soviet of the USSR of December 23, 1989 “on election Of the Committee of constitutional supervision of the USSR”. 1989. No. 29. Article 575.See: Regulations of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR dated December 20, 1989. 1989. No. 29. Article 565; Resolution of the Supreme Soviet of the USSR of December 23, 1989 “on election Of the Committee of constitutional supervision of the USSR”. 1989. No. 29. Article 575. 129 Mironenko A. Constitutional justice at the turn of the Millennium. Page 129: Prerequisites for the formation of new bodies to ensure constitutional legality in the USSR / / Law & Business. - Kiev, 2009. July 4-10, No. 27 130 See: Lazarev B.N. Committee of constitutional supervision of the USSR (summing up). P. 22; Kerimov D.A., Ekimov A.I., Op. P. 13. 131 Shakhnazarov G. Decree. Op. Pp. 415-416; Second Congress of people’s deputies of the USSR. Bull. 18. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 67 regular session the members of Committee, including one from each union republic and four from the autonomous establishments 132. In connection with the comment by the Resolution of Congress of December 23, 1989 “On election of the Committee of constitutional supervision of the USSR” in the periodicals and special literature of the time had two questions: whether it is designed for repeated use in part of the representation of the Autonomous and legitimate transfer by the Congress for the election of members of the CCS to the Supreme Council. It is clear that only practice could give an answer to these questions. But there was an opinion that this approach is allegedly “unconstitutional” and does not constitute a “constitutional” precedent”133. On April 26, 1990, the Supreme Council elected members of the USSR constitutional supervision Committee. The Baltic republics, as the President of the state court of Estonia, U. Lykhmus, later expresed, “are making a breach in the constitutional order of the Soviet Union” 134, and planning the separation, did not put forward his candidates to the Committee. Under excuse of substitution of the earlier planned candidates the new ones were not submitted by some union republics. The representatives of Buryatiya, Bashkiriya and Tatar autonomous republics were also elected to the Committee135. Thus, the committee was formatted in composition of only 21 people instead of 27, as it was stipulated in Constitution of the USSR. The CCS was a highly trained professional body and consisted mainly of experts in the field of law. There were 14 doctors and 5 candidates of law. Experts in the field of politics were doctors of historical and philosophical sciences. These were not only representatives of academic and university sciences. Among them are several major practitioners: head of the legal Department of the Presidium of the Supreme Council of the USSR, head of the Department of the Presidium of the Supreme Council of Tatar ASSR,

132 VSND and the Soviet armed forces. Moscow, 1989. No. 29. Article 575. 133 See: Luchin V. Constitutional war: there will be no winners / / Megapolis. Moscow, 1990. 15 Nov.; Kerimov D.A., Ekimov A.I., Op. 8. 134 See: Lykhmus A U. Development of constitutionalism in Estonia / / Modern constitutionalism and constitutional justice: Mater. intl. science.- pract. Conf. Odessa. 2001. P. 83. 135 See: Resolution of the Supreme Soviet of the USSR of April 26, 1990 “on election of members Of the Committee of constitutional supervision of the USSR”. 1990. No. 8. Article 314.See: Resolution of the Supreme Soviet of the USSR of April 26, 1990 “on election of members Of the Committee of constitutional supervision of the USSR”. 1990. No. 8. Article 314. 68 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY editor-in-chief of the people’s deputy magazine. The lawyers elected to the CCS specialized in such branches of science as theory of state and law, state (constitutional) law, international law, civil law, criminal law and process, etc. The members of the Committee were divided into three sections: state and legal; civil and economic legislation; and law enforcement legislation, headed by prominent legal scholars-professors M.I. Piscotin, Y.K. Tolstoy, and V.D. Filimonov. The CCS Secretariat had a division for state and legal affairs (with the sectors of state and administrative law, international law), a division for sectoral legislation (with the sectors of socio-economic legislation and law enforcement legislation), a legal information group, a letter office, and an office. The device had 30 staff units136, what is several times less than the analogic structure in the later established Constitutional Court of RSFSR. On May 16, 1990, the Chairman of the CCS held the first press conference, where he defined the ethical and organizational principles of the constitutional oversight body. “Every member of the Committee,” he said, “should be guided in making a decision not by party affiliation, but by the conscience, duty, and civic position of the scientist… The Committee is not an immediate response body. There are procedures for the institution... Acceptance by the Committee itself for consideration of the issue ...should be the exception, not the norm...”137. Thus, the head of the CCS, in accordance with his theoretical and civic views, repeatedly expressed by him in scientific and journalistic works, directed the members of the Committee to activities that have a judicial nature, or at least very close to it. 3.The history of the constitutional and supervisory activities of the Committee of constitutional review from May 1990 to December 1991 is characterized by the number of issues considered (29), most of which are officially published in the “Vedomosti of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR” in the form of decisions, resolutions, conclusions and statements 138. Sometimes the acts of the

136 See: Lazarev B.M. Decree. Op. 24; Alekseev S. S. constitutional supervision: first steps and problems / / Izvestia. Mosk. Veches. vol. 1990. 28 Aug. 137 See: Stepovoy A. the Committee begins to act / / Izvestia. 1990. May 18. 138 See: Vedomosti of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR. Moscow, 1990. Number 27. CT. 524, 39. CT.CT. 773-776, 47. CT.CT. 1001-1004, number 50. CT. 1080; 1991. Number 4. CT. 89, 9. CT.CT. 205-207, 17. CT.CT. 498-502, number 26. Pp. 741, 29. CT.CT. 856-857, 46. CT. 1307-1309. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 69

Committee were published in the legal magazines and journals, and its applications on the contrary rather broadly published in press139. In response to these statements, interviews were usually given by the Chairman 140, and, in some cases, by members of the Committee. Interesting material about the activities of the ССS can also be gleaned from the journalistic works of its members - S.S. Alekseev, S.S. Bosholov, B. M. Lazarev, M.I. Piskotin, Yu.K. Tolstoy141, as well as journalists-O. lazis, Yu. Feofanov, A. Stepov, S. Chugaev, V. Shchepotkin 142. The last acts of the Committee of the constitutional supervision of the USSR (November-December 1991) were unofficially brought in the application to our monography (2006)143. In consequence the acts of CCS were wholly reproduced in some documents and collections144. The number of them is given in the bibliographical and separate papers145. The years and half activity of CCS was analyzed in the literature of the constitutional supervision, its officially published acts and not published, among those not published as a result of USSR collapse146, (on the categories of initiating of the constitutional- supervision proceedings) and statistic

139 Cm: Feofanov Y. can the power to be honest // news. 1990. 16 Dec; He. In the grip of justice. // News. Moscow, 1991. 2 APR. 140 See: Butenko A. August-91 / / Pravda. 1991. 18-19 Sept.; Alekseev S.S. Putsch and justice: necessary explanations for the article “August-91” / / Pravda. 1991. 30 Sept. 141 See: Alekseev S.S. constitutional supervision-the guarantor of democracy in the country / / Prav- da. 1989. 21 Dec.; He. Constitution of perestroika / / Izvestia. Mosk. Veches. vol. 1990. 15 Jan.; He. Legal adviser or full-fledged guardian of the rule of law / / Izvestia. 1990. June 17.; He. The liberty bell // Lit. newspaper. 1990. June 27.; Boskholov S.S. Decree. Op. 112 p.; Lazarev B.M. constitu- tional supervision. Pp. 3-4; He. I undertake to observe the Constitution; Piskotin M. the Constitution needs protection; Tolstoy Yu.K. in Memory of B.M. Lazarev / / Pravovedenie. SPb., 1995. No. 1. P. 135; He. Pages of memories. S.M. Korneev, V.A. Dozortsev, M.I. Piskotin. Moscow, 2004. 24 p. 142 See: Lacis O. the authors of the statement reject the idea of federalism / / Izvestia. Mosk. Veches. vol. 1991. 2 Sept.; Stepovoy A. the Committee begins to act / / Izvestia. 1990. May 18; Feofanov Yu. Do not rush to the barricades / / Izvestia. Mosk. Veches. vol. 1990. 12 Sept.; etc. 143 See: Mityukov, M.A., the forerunner of the constitutional justice: views, drafts, and institutional prerequisites. Pp. 133-152. 144 The collapse of the USSR: documents and facts (1986-1992): in 2 vols. Official messages / Edited by S.M. Shakhrai. Moscow: Volters Kluver, 2009. Pp. 320-1035; Domestic constitutional justice: Documents and materials (1988-2010). Moscow, 2010. Pp. 119-209; Shustrov D.G. Liv- ing constitutional law of Russia in decisions of the constitutional Court of the Russian Federation. In 7 volumes. Vol. 2: the Constitution of the Russian Federation and other sources of Russian law. Moscow, 2017. Pp. 33-51. 145 See: Bibliography on constitutional justice. Moscow, 2008. Pp. 179-182; Mityukov M.A., Op. Pp. 154-158. 146 See: Alekseev S.S. Year of the path to the rule of law / / Izvestia. 1991. 19 Jun; Naumov A.V. Foreword // Boskholov S. S. Decree. Op. 1992. Pp. 4-6; He. Word to the voter. Moscow, 1995. Pp. 6-13; Khabrieva T.Ya. Legal protection of the Constitution. Kazan, 1995. Pp. 86-92; Pryakhina T.M. Constitutional doctrine of modern Russia. Saratov, 2002. Pp. 71-75, etc. 70 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY review147. As a positive result it was emphasized that CCS tried to rather actively in its supervising and control work to develop the law-enforcement aspect, “operate” by categories of the acknowledged principles and norms of the international law148. It laid down the basis of the domestic understanding of the specialized bodies acts of the Constitution legal safeguard as a source of law, source of the modern Russia constitutional doctrine formation149. This idea goes in line with the expressed opinion of the well-known publicist Uriy Feofanov that at the best times of CCS activity its conclusion was the document, having legal force, force of law, removing the very legal fabric of antidemocratic practice” of the fact that the activity of CCS150. It is obvious that the author gave wishful thinking, “running ahead” in the possible development of legal protection of the Constitution in our country. ССS defined some guidelines for improving legislation and forming the principles and norms of the future Constitution of the Russian Federation. It, according to S.S. Alekseev, also laid the theory of such a legal structure as the “legal position”, which was later adopted by the constitutional justice151. And it also began to apply for the first time the spread of similar positions in one case to others152. At the same time, there was a practice of special opinions in specialized bodies of legal protection of the Constitution153. Under the conditions of political and economic crisis, the “parade of the sovereignties” and the CCS authorities limitation occurred helpless while accomplishing of the constitutional supervision in the field of federative relations, and the ineffective in the sphere of the preliminary constitutional, the problems of the procedural character in the activity of CCS and fulfilling of its conclusions were apparently defined154. They were ignored by the highest

147 See: Mityukov, M.A., the forerunner of the constitutional justice. Pp. 108-111, 117-118. 148 See: Alekseev S.S. constitutional supervision: first steps and problems / / Izvestia. 1990. 28 Aug.; He. Constitution and government // news. 1990. 3 Dec. P. 3; He. In the Committee of constitutional supervision of the USSR / / Izvestia. Mosk. Veches. vol. 1991 18 Jan. 149 See: Lukyanova E.A. Russian statehood and constitutional legislation in Russia (1917-1993). Moscow, 2000. P. 88; Pryakhina T.M. Decree. Op. P. 71. 150 See: Feofanov Yu. Is the government able to be honest? // News. 1990. 16 Oct. 151 Alekseev S.S. the Third power. // News. 1991. 23 Feb. 152 For more information, see: Mityukov M.A. forerunner of constitutional justice. Pp. 112-113. 153 See: Dissenting opinions of Committee members S.S. Boskholova, A.G. Bykov, G.Z. Intskirveli // VSND and the Soviet armed forces. 1990. No. 47. 1245-1248. 154 See: Feofanov Y. In the grip of justice // news. 1991. 2 APR. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 71 state authorities of the USSR 155 and the Union republics. The latter, as a rule, avoided contacting the CCS on issues of its competence. The legislative activities of the Congress of people’s deputies of the USSR and the Supreme Soviet of the USSR implemented the concept of dualistic constitutional supervision and control (by the Parliament and its specialized body), which was criticized in the first scientific papers on constitutional supervision156. Despite all these circumstances, the Chairman of the CCS, S.S. Alekseev, already in February 1991, hastened to declare “that there was, after all, even if not a strong, judicial and constitutional power”157. Sometime later, U. Feofanov doubted this, posing the question: “Was the Committee successful as the “third power” in the state, or was it another legal advisory body?” 158. Then the short experience of this institution of the state did not provide sufficient material to confirm its “justice” character. An attempt togivea negative answer to this question was made already in this century, although it was not denied that the CCS acquired some features of the constitutional court, expressed in the borrowing of certain elements of the judicial process159. Even earlier, the opinion was expressed about the “gradual transformation of CCS into a Constitutional Court”160, but apparently it was based on the judgment that existed in the early 90’s in party and Soviet circles about the identity of the Committee of constitutional supervision and the constitutional court161. However, the process of sovereignization of the Union republics determined that they became pioneers in the establishment of constitutional courts. 4. Several scientific works, interviews, publicist essays and informational articles, written at the beginning of 90-th and later, accompanied by disputes

155 See: Yaroshinskaya A. how Anatoly Ivanovich outwitted himself / / Izvestia. Mosk.Veches.vol. 1991. 21 Nov. 156 See the fourth congress of the people’s deputies of USSR M. 1990 Bul. 10-16 The constitutional control in the USSR autoreferat Fourth Congress of people’s deputies of the USSR. Moscow, 1990. Bull. 10-16, 21-26 Dec.; Shubert T.E. constitutional control in the USSR: autoref. Cand. dis. M: VNIISS, 1991. Pp. 16-17. 157 Alekseev S.S. the Third power / / Izvestia. Moscow, 1991. 23 Feb. This author also referred to the kkn as a” constitutional-judicial body “ in other articles (see: Constitution and power // Izvestia. 1990. 3 Dec.; Year on the way to the rule of law / / Izvestia. 1991. June 19). 158 See: Feofanov Yu. Right to power / / Izvestia. 1991. June 25. 159 For more information, see: Mityukov M.A. forerunner of constitutional justice. Pp. 115-117. 160 See: Lukyanov A. I. in the maelstrom of Russian turmoil. Moscow, 1999. P. 175.See: Lukyanov A.I. in the maelstrom of Russian turmoil. Moscow, 1999. P. 175. 161 See: First Congress of people’s deputies of the USSR. Stenographer. report. Moscow, 1989. Vol. 3. Pp. 141. 72 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of ineligibility and the destiny of this institute were dedicated to the crisis of the constitutional control162. Political processes in RSFSR and other Union republics also contributed to the development of the crisis of constitutional supervision, as stated by contemporaries and confirmed by documentary sources163, the recognition at Union level by scientists164 and part of people’s deputies165 of preference of the constitutional control over the constitutional supervision, refusal at the First Congress of people’s deputies from the constitutional supervision 166, independent from the union center elaboration of projects of the Russian Constitution and the Federal Treaty and finally the events of August 1991. Since the beginning of 1990, the question of the CCS’s destiny has been the subject of political, legal, and, of course, legislative discussions in connection with the preparation of the Union Treaty and the new Constitution of the USSR. Some of the participants in the controversy were in favor of preserving this institution167, while others were in favor of transferring its functions to the Supreme Court of the USSR168. Supporters of judicial constitutional control justified the idea of its transformation into a Federal Constitutional Court with

162 See: Mironenko A. Constitutional justice at the turn of the Millennium: Page 133: Creation and evolution Of the Committee of constitutional supervision of the USSR; Mityukov M.A. On the way to constitutional justice (1986-1991. confrontation of alternatives: constitutional supervision or the constitutional court). Crisis of constitutional supervision / / Legal problems of strengthening Russian statehood. Sat. articles. Part 23. Tomsk, 2005. 42-62. 163 For more information, see: Mityukov M.A. Constitutional courts in the post-Soviet space. Com- parative study of legislation and judicial practice. Moscow, 1999. Pp. 4-6. 164 See: The concept of the new Constitution of the USSR and the USSR Academy of Sciences IGIP // Sov. state and law. 1990. No. 4. P. 20; Kudryavtsev V., Topornin B. To the new Constitution of the USSR / / people’s Deputy. 1990. No. 1. P. 37; Analytical note “ The situation in society (after the first Congress of people’s deputies of the USSR)”, prepared in the sector of the theory of the state and socialist self-government of the Institute of state and law of the USSR Academy of Sciences. May 1990 / / Archive of the President of the Russian Federation. F. 3. Op. 110. D. 2. 123 to 126. 165 See: Fourth Congress of people’s deputies of the USSR. 1990. Bull. No. 6. 19 Dec.; No. 10. 21 Dec. 166 See more in: Boskholov S.S. Democracy, rule of law, sovereignty. P. 47; Mityukov M.A. On the history of constitutional justice in Russia. Moscow, 2002. 47-134. 167 See: Zlatopolsky D.L. Constitution of the USSR (project) / / Bulletin of the Moscow University. Series 11. Right. 1990. No. 5. Pp. 3-7; Krylov B.S., Kuznetsov I.N., Mikhaleva N.A. The concept of the Union Treaty. state and law. 1990. No. 10. Pp. 9-10. 168 See: Draft of the constitutional section “on judicial power” prepared by the Institute of problems of strengthening law and order / / Bulletin of the Supreme Court of the USSR. 1991. P. 21. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 73 expanded powers169 or of transferring this control to the Supreme Court170. In particular, in his project of A.D. Sakharov referred to the constitutional court as one of the four chambers of the Supreme Court of the Union (article 14) 171. This idea was then supported by S.S. Alekseev and U.H. Kalmykov, Chairman of the Committee of the Supreme Council of the USSR on legislation and law and order. According to the latter, the unification of all higher courts into one Supreme Court of the Union “would eliminate duplication, promote uniform application of laws, and ultimately stabilize the legal situation in the country”172. The struggle of these opinions is reflected in various versions of the draft Union Treaty173, published in periodicals, collections of documents,174, as well as in journalism and literature175. As a result, the last fifth draft of the Treaty already referred to the Supreme Court of the Union as a constitutional and inter-republican court. It is interesting that the author’s draft of the Treaty on the formation of the European-Asian Union of republics, published by

169 See: Kudryavtsev V., Topornin B. To the new Constitution of the USSR / / people’s Deputy. 1990. No. 1. Pp. 32-37; Concept of the new Constitution of the USSR / / Sov. state and law. 1990. No. 4. P. 15-21; What is the concept of the new Constitution of the USSR (proposal of the Institute of state and law of the USSR Academy of Sciences) / / people’s Deputy. 1990. No. 4; Topornin B.N. Constitutional reform – the way to a legal state. Pp. 3-14. 170 See: Sakharov A.D. Draft Constitution of the Union of Soviet Socialist Republics of Europe and Asia / / Horizon. Moscow, 1990. No. 1. Pp. 5-12; Maiminas E. Treaty on the formation of the European-Asian Union of republics: project / / Social Sciences and modernity. 1991. No. 1. Pp. 96- 102; Kalmykov Yu.Kh. Five reasons for the “war of laws”. About the legal situation in the country // Izvestia. 1991. 4 APR 171 See: Andrei Sakharov’s Constitutional ideas. Pp. 11, 92. 172 See: Alekseev S.S. the Third power / / Izvestia. 1991. 23 Feb.; Kalmykov Yu.Kh. Decree. Op. 6. 173 See: Union agreement: draft (article 16) / / Pravda. 1990. 24 Nov.; Treaty on the Union of sov- ereign republics: draft (article 17) / / Izvestia. 1991. March 9; Treaty on the Union of sovereign republics: draft (article 17) / / Pravda. 1991. 27iyunya; Resolution of the Supreme Soviet of the USSR of July 12, 1991 “on the draft Treaty on the Union of sovereign States” / / Izvestia. 1991. July 13; Treaty on the Union of sovereign republics: draft agreed on July 23, 1991 (art. 11, 17) / / Pravda. 1991. 15 Aug.; Treaty on the Union of Sovereign States: draft. Reviewed by the state Council of the USSR on November 14 and 25. // Izvestia: Mosk.Veches.vol., 1991. 25 Nov.; What amendments were made To the agreement on the SSG at the state Council on November 25 / / Izvestia: Mosk. Veches.vol., 1991. 25 Nov. 174 See: the Union could have been saved. White paper. Moscow, 1995. Pp. 43-273; The collapse of the USSR: documents and facts: in 2 vols. M, 2009. Pp. 672-982. 175 See: Mityukov M.A. Draft Union Treaty: pros and cons / / From the history of the Constitution of the Russian Federation. Constitutional Commission: transcripts, materials, documents (1990- 1993): in 6 vols. 2: 1991 / under the General ed. of O.G. Rumyantsev. Moscow, 2008. Pp. 953-957; Mironenko A. Constitutional justice at the turn of the Millennium. Page 136: From the draft Union Treaty to new objects of constitutional protection in the republics / / Law & Business. Kiev, 2009. 22-28 Aug., No. 34 (918). 74 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

E. Maiminas in early 1991, resolved this issue almost in the same way176. But these projects were not in demand for political reasons, including the collapse of the Soviet Union and the conclusion of the agreement on the establishment of the Commonwealth of independent States on December 8, 1991, and its subsequent ratification and accession to the agreement of the former Soviet republics177. For this reason, the Committee of constitutional supervision of the USSR also ceased its activities. For researchers of the CCS in the future, in our opinion, there are two unresolved major scientific questions: assessing its role in the formation of constitutional justice in Russia and in other post-Soviet states, and, accordingly, determining its place in the history of domestic constitutional justice. In this regard, the generalization of the ССS’s activities would be incomplete, without paying attention to the ambiguous assessments of it in the Western (especially German) special literature. We can mention the very interesting works of D. Barry, A. Blankenagel, B. Wieser, O. Luchterhandt, A. Mavcich, A. Nussberger, V. Ruckert, G. Hausmaninger, G. Schwartz, W. Shteyngrever, F.S. Schroeder, and others178, some of which have been translated into Russian. There is no unity in the assessment of the CCS’s activities either in Russian or in Western literature. Some researchers (A. Blankenagel, B. Maggs, etc.) characterize this activity negatively179. But this, as B.M. Lazarev correctly noted, is largely due to inflated expectations180. At the same time, a number of scientists give a very high assessment of this body. Thus, I.A. Ledyakh, considering retrospectively the functioning of the ССS, draws attention to the

176 See: Social Sciences and modernity. 1991. No. 2. Pp. 96-102. 177 See: Rossiyskaya Gazeta. 1991. 10 Dec.; Vedomosti SND and VS RSFSR. 1992. No. 51. 1798; the Collapse of the USSR: documents and facts: in 2 vols. Moscow, 2009. Pp. 1042-1054. 178 See: Blankenagel A. Verfassungkontrolle in der UdSSR // Der Staat. 1993. № 3. S. 448-457; Nuβberger A. Verfassungskontrolle in der Sowjetunion und in Deutschland. Baden-Baden: Nomos Verl.-Ges., 1994. S. 59-69; Shwartz H. The Struggle for Constitutional Justice in Post-Communist Europe. Chicago and London.2000.P.109-163; Steingrover U. Anfange der Verfassungsgericts- barkeit. Die erste Phase des Verfassungeriht der Russlandlihtchen Foderation 1991-1993: Erfah- rungen und Konsequenzen. Frankfurt am Main.2000. S. 18-23; Rǘckrert W. Das Vőlkerrecht in der Rechtsprechung des Russischen Verfassungsgerichts. BWV. Berliner Wissenschafts-Verlag, 2005. S. 55-98; Gazier A. Justice constitutionnele et Federalisme en Russie//Revue du droit public.1999. № 5. p.1359-1391. 179 Maggs D.P. Enforcing the Bill of Rights in the Twilight of the Soviet Union. 1991, № 2. P. 104; Blankenagel A. Verfassungkontrolle in der UdSSR // Der Staat. 1993. № 3(32). 180 Lazarev B. M. Committee of constitutional supervision (summing up). P. 24. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 75 fact that it played an important role in protecting human rights and freedoms. “Not having sufficient powers, not being endowed with the necessary mechanism for the implementation of its conclusions and being therefore mainly an advisory body, she wrote, the constitutional oversight Committee nevertheless made a significant contribution to the protection of human rights and freedoms”181. D. Barry noted that the Committee was “a more promising institution” than in the past the Supreme Court of the USSR in constitutional supervision. ССS “achieved public recognition” and created the basis for the formation of the Constitutional Court of Russia182. In modern studies, the creation of the Committee is described as a “progressive step”, “a victory for those who advocated the introduction of the institution of constitutional control in our country”, as well as an institution “on the way to transformation into a body of constitutional control”183. To our mind, the short-time experience of the Committee’s activity certifies that the specialized constitutional supervision as the institute of the highest representative body of the state authority occurred to be of a small effect, especially in the sphere of the supervision over norms (ensuring the supremacy of Constitution and laws of USSR) and resolution of the disputes in the system of the soviet federative state. This was conditioned not only by the political situation but dualistic, subordinate nature of the constitutional supervision in the system of constitution safeguarding, shortcomings of its legal regulation, restricting the possibilities of this state institution. The consideration by CCS of the issues on its own initiative deprived it of the opportunity to be politically impartial and resolve the matters purely of the law. In General, we can agree with the opinion expressed in 1989 that the establishment of the CCS was “a timid step, not decisive enough, and in many ways contradictory”184. The “organic vices” of the institution of constitutional supervision (the deprivation of independence and, by virtue of the law, more dependent on the Parliament, etc.) could not be overcome by the activities of members of

181 See: General theory of human rights / ed. by E.A. Lukasheva. Moscow: NORMA Publishing house, 1996. P. 137. 182 Cm.: Barry D. the constitutional Court of Russia through the eyes of an American lawyer / / State and law. 1993. No. 12. Pp. 76-79. 183 See: Avakyan S.A. Constitutional law of Russia: a Training course. In 2 t.: T. 2. Moscow, 2005. Pp. 596-597. 184 See: Baturin Yu.M., Livshits R.Z. the Socialist legal state: from idea to implementation: a political and legal view. Moscow, 1989. Pp. 164-167. 76 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY the CCS of the USSR, which deserved respect and generally a strong positive assessment185. The constitutional and supervisory direction of protection of the Constitution in the Federal state turned out to be unpromising. The constitutional supervision committees provided for in a number of Federal republics by the constitutional amendments of 1989-1990 did not become a reality186. The history of the formation and development of the legal protection of the Constitution in Kazakhstan was formed in a peculiar way. Here, in 1989, as in most of the Soviet republics of that times, the constitutional supervision Committee was initially included in the basic law, similar to the Constitution of the USSR 187. Then the Law of the Kazakh SSR of April 24, 1990 “On the establishment of the post of President of the Kazakh SSR and amendments and additions to the Constitution (Basic Law) of the Kazakh USSR” defined the composition, term and competence of the Committee, the legal force of its decision188. But, apparently, under the influence of the political and economic crisis in the country, which threatens the collapse of the USSR, as well as negative moments in the experience of the Union CCS, which the author believes can not be discounted from history, on December 16, 1991, the Constitutional law “On state independence of the Republic of Kazakhstan” adopted a different - more radical in the spirit of the time- decision: “the Highest body of judicial protection of the Constitution is the Constitutional Court of the Republic of Kazakhstan” (article 10)189. Although this law was the “basis for the development of a new Constitution of the Republic of Kazakhstan” (article 18), already in early June 1992, the Supreme Council of the Republic of Kazakhstan, ahead of the constitutional process, adopted the Laws “On the constitutional Court of the Republic of Kazakhstan” and “On constitutional court proceedings in the Republic of

185 See: When it comes to B.S. People, the people, the government in the constitutional system of the Russian Federation. Moscow, 2005. Pp. 503. 186 Only in Tajikistan, Uzbekistan, and certain republics of the Russian Federation (Komi, Tatarstan, and North Ossetia) did they precede the creation of constitutional courts as a transitional model. 187 See: Law of the Kazakh USSR of September 21, 1989 “on amendments and additions to the Con- stitution (basic Law) of the Kazakh SSR” / / Vedomosti of the Supreme Soviet of the Kazakh USSR. 1989. No. 40-41. Article 336. 188 // Vedomosti of the Supreme Soviet of the Kazakh USSR. 1990 No. 44. Article 408. 189 // Vedomosti of the Supreme Soviet of the Kazakh USSR. 1991. No. 51Article 622. See also: Mityukov M.A. Constitutional courts in the post-Soviet space. Moscow, 1999. P. 5. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 77

Kazakhstan”190. Only then was this model enshrined in the Constitution of the Republic of Kazakhstan in 1993. Later, by the Constitution, adopted at a referendum on August 30, 1995, it was changed to the Constitutional Council of the Republic of Kazakhstan. Recognizing the CCS that never emerged as “the first step towards the establishment of the Institute of constitutional control”, and then functioning in 1992-1995 as “the beginning of the establishment of the Institute of constitutional control in Kazakhstan”, Prof. V. A. Malinovsky notes the great contribution of this Court to the establishment of constitutionalism and thus deserves “a general positive assessment”. At the same time, the scientist identified a whole set (five) “lessons” that, in his opinion,191 led to a change in the model of legal protection of the Constitution in the Republic192. Their essence is to ensure that the status of a “powerful body of the constitutional justice” faced with “imperfect functional and institutional relation to the state apparatus” in terms of “transition” state of the Constitution “imperfect and inconsistent separation of powers” under the aspiration to “unlimited democracy” and “absolute of the subsequent constitutional control”. Now we can state that the implemented constitutional model of legal protection of the Constitution in the Republic of Kazakhstan has stood the test of time and is constantly being improved in its development. The unstable nature of constitutional supervision in the country was influenced by many circumstances, including legal ones: the “obsolescence” of the Constitution, the exclusion of constitutions and laws of the Union republics from the sphere of abstract norm control, and legal “prejudices” about the supremacy of the Parliament and the prerogatives of the Executive power. The crisis of interethnic relations, the real strengthening of the role of republics and centrifugal aspirations, the attempt of the legislator to “keep”

190 See: Statements of the Supreme Council of the Republic Of Kazakhstan. 1992. No. 10. Articles 266 and 267. 191 The same opinion is shared by many Kazakhstani constitutionalists, whose works are available in the section “Kazakhstan”: Bibliography on constitutional justice / auth.- comp. M.A. Mityukov. 2nd ed., additional M., 2011.Pp. 868-882; Constitutional justice: systems. Bibl. guide. (2011-2016) / auth. - comp. M.A. Mityukov. Moscow, 2018. Pp. 496-504. 192 About it: Malinovsky V.A. Speech [at the International conference dedicated to the anniversary of the constitutional Court of the Republic of Korea]. This material was presented by Viktor Alexandrov- ich to the author of the article, for which he expresses his gratitude. 78 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY control and supervisory powers in its hands, thus creating a “dualistic” and in some cases “multi-channel” constitutional supervision, also played an important role in this. One of the reasons for the “instability” of the CCS was also the publicly expressed doubt about the effectiveness of this institution. In all political and legal discussions of the late 80’s and early 90’s, wherever they took place (party forums, congresses of people’s deputies, “national discussions”, scientific conferences), many participants preferred the idea of the constitutional court. Thus, the functioning of CCS took place against the background of competition with the image of constitutional justice, which is still invisible to our country. At the same time, specialized constitutional supervision was the first real attempt to apply generally recognized principles and norms of international law in solving problems of protection of rights and freedoms in the country. The CCS of the USSR was a convincing example of the necessity to establish constitutional control on the basis of other legal principles, in particular, the division of state power. Therefore, it became an institution that preceded the establishment of judicial constitutional control in post-soviet countries. Although the term “forerunner of constitutional justice” was introduced by us in modern literature,193 there are two opposite points of view in Russian constitutional law regarding the historical continuity between the CCS and the Russian Constitutional Court. According to one of them, this body of judicial constitutional control is not a historical continuation of the first one194. According to the proponent of this position, V.B. Yastrebov, “there are no ... sufficient grounds to consider the constitutional Court of the RSFSR ... the successor of the Committee of constitutional supervision of the USSR. With all the advantages and generally progressive role of the Committee of constitutional supervision of the USSR they couldn’t manifest to full extent due to the specific situation of that time, the advisory nature of its decisions, very complex procedures for their implementation. The differences between the Committee of constitutional supervision and the Constitutional Court of the Russian Federation as a judicial body of constitutional control are not only

193 See, for example.: Judicial system and law enforcement agencies / edited by L.V. Golovko: text- book. Moscow: Gorodets publishing house, 2020. Pp. 404-409. 194 See: Ebzeev B.S. of the Constitutional right of Russia. Textbook. Moscow: Prospect, 2019. Pp. 705. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 79 terminological... but also the legal force of decisions... and the legal status of the bodies”195. According to another point of view, the Constitutional Court of the RSFSR – RF) is a direct continuation of the process of political and legal development of the institution of legal protection of the Constitution in the country. The previous stage, which was the CCS of the USSR, temporarily, and not prospectively, won the fight against the idea of judicial constitutional control. The first point of view is considered by supporters of this position to be purely legal and dogmatic, which does not take into account the political process and the single-order designation of specialized constitutional control and constitutional supervision in the general arsenal of legal protection of the Constitution as such196. Moreover, in the historical process, as a rule, politically conditioned, and often progressive or regressive “flowing” into each other.

195 Yastrebov V.B. On the history of the establishment of constitutional control in the Russian Fed- eration / / judicial System and law enforcement agencies / ed. by L. V. Golovko: textbook. Moscow, 2020. Pp. 407-408. 196 See: Mityukov M.A. Constitutional justice at the first stage of development (to the historiography of the issue from the position of a constitutionalist) / / Constitutional and municipal law. Moscow, 2019. Pp. 68-69. 80 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Joerg Pudelka Head of the representative office of the German Society for International Cooperation (GIZ) in Kazakhstan, judge, Berlin (Germany) THE REALIZATION OF THE PRINCIPLE OF THE LEGAL STATE IN THE SPHERE OF THE ADMINISTRATIVE LAW

1. Introduction he Constitutions of Germany and Kazakhstan contain several so- called principles of the state structure, among which the special place is occupied by the principle of the legal state197. In Kazakhstan it is also symbolically emphasized by position in the very beginning, thatT is part 1, article 1 of the Basic Law. In Germany the guarantee of the legal state is enshrined in part 3 article 20 of the Basic Law (BL), but this doesn’t diminish the importance of this principle. On the contrary it has symbolic

197 Federal constitutional court called it one of the elementary principles of the main law; see. BVerfGE 52, 131. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 81 meaning, that after many years of illegal state existence in the period of 1933-1945 with multiple violations of human rights at the very beginning of the Constitution of Germany the basic rights, starting with the guaranteeing of the man’s dignity were consolidated. They are followed by the principles of the state structure with the principle of the legal state, among which the principle of the state structure is single principle, that is not only stipulated, but brought in details in part 3 article 20 BL. Important aspects of the content of the rule of law include: the principle of legality of administrative bodies’ activity, the right to fair trade, the principle of supremacy of the Constitution and the law, the prohibition of arbitrariness, the clause in the law, the certainty principle, the principle of protection of trust and the principle of proportionality.198 There is practically no branch of law that is so permeated with these principles as administrative law. It is in the interpretation and application of administrative law find the use of the above-mentioned manifestations of the rule of law: norms and, in particular, contained in them are vague legal concepts should be interpreted in light of the Constitution and, in particular, the concept of a legal state; when applying the rules, it is necessary to take into account that these principles also apply to them, in particular, in cases where the rules – as is very often found in administrative law-provide for discretion for the administrative body.

2. The separate manifestation of the legal state principle in administrative law. Further in kind of the examples the separate manifestations of the principle of legal state such as norms of the administrative law will be considered. In doing so, for the more visibility we shall address only to general administrative law, which finds its expression in the law of Administrative procedures (LAP) of Germany or, correspondently, in the project of the Administrative procedural code of Kazakhstan (APCK). Both the positions of LAP and APCK are based on the basic principles, thus, the following reflections can be easily extrapolated.

198 See this question in more details. Jarass/Pieroth, Grundgesetz für die Bundesrepublik Deutsch- land. Kommentar, Art. 20, Rn. 37 and the following links to the sources. 82 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The supremacy of the Constitution and law/ the legitimacy of the administrative bodies activity. The principle of the legal state includes the subordination of all the branches of state power to law. It concerns the legislator itself; bringing in the laws, it is linked to Constitution. The executive and judicial powers are bound by the Constitution and all laws. It follows that the executive power in issuing the secondary legislation required to comply with the laws and the Constitution and that in the event of non-compliance by a subordinate legal acts are void. This, of course, also applies to administrative regulations. For the executive branch, this theoretically means that it is obliged to follow the law in its actions first and only within this framework to take into account by-laws. In practice, the situation is often the opposite: in an administrative body, the responsible employee, when making a decision on a case, looks only at “his” administrative regulations. In particular, this is the case when the law provides discretion. For example, ordinary employees of the German Agency for foreigners, when deciding whether a foreigner has committed a crime in Germany, taking into account that the law provides for discretion in this matter, usually look only at the departmental instructions to the law on foreigners, since they also give instructions regulating discretion. However, the principle of the legal state in its manifestation in the form of connection with law clearly requires any administrative activity to comply with law. In the long run, it is not important what the administrative regulations stipulate, if they do not correspond the law or even Constitution. Besides, the principle of the legal state has the same effect as the executive power in case of several possible variants of interpretation of undefined legal notions or choosing one of the several possible discretional options can choose only one of the correct legitimate variants. In this sense, the principle of the legal state always leads to interpretation of the administrative regulations in accordance with the law or Constitution and always leads the selection of the discretional decisions, corresponding to law or Constitution. The meaning of such consequences of the principle of the legal state for the everyday administrative practice can be hardly overestimated; their actual PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 83 observance – that is the connectedness of any administrative activity by law and legal acts – has to be examined by courts in the case of taking legal actions and be restored in necessary cases by means of correction of the administrative decisions.

b) Clause in the law One more partial aspect of the principle of the legal state influences upon the activity of the executive branch, at least, in that sense that the question whether the administrative body has the right to act raises. It is quite clear, that the administrative body is not entitled to interfere with the rights of private (physical or legal) entities, if it has no reasons for doing this, stipulated in law. This is the essence of the clause in the law – an important dimension of the principle of the rule of law. The question, however, is whether this principle of having a clause in law also applies in cases where an administrative body issues favorable administrative acts or provides other benefits. The judicial practice of the Federal administrative court in Germany in this matter is based on the principle that in this case there is no need for the law.199 A clause in law is not a total clause that requires a statutory authority to perform any action of the executive branch. All that is needed is a basis in the law on the state budget and corresponding by-laws that regulate the distribution of such benefits. However, an exception should apply in cases where a benefit for one person is simultaneously an encumbrance for another person. This may be the case, for example, in the case of subsidies allocated to one of the participants in the economic turnover, because this benefit is also a burden for its competitor. In such cases, then a legal basis is required. According to the jurisprudence of the Federal constitutional court of Germany, this is also true in cases where subsidies without specific encumbrances from a third party simply affect important areas of basic human rights. For example, subsidies for the press, because of the great importance of a free press both for a democratic society and for the exercise of freedom of speech and the press, will always require the existence of a law, even if there is no directly affected competitive

199 BVerfGE 45,8 84 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY enterprise for which a subsidy allocated to someone else would mean an indirect infringement of its interests.

c) The principle of the trust protection One more important aspect of the principle of the legal state is the trust protection. It implies that the narrow limits for making amendments, in particular, by the backdate. This regards both the legislator in the part of adoption of laws of the retroactive effect, at least, if this laws are burdensome (for example, the heightening of the taxes by the backdate for the current or past (calendar year), and, of course, to the administrative bodies in the part of laws implementation. According to the general rule the citizen can rely on the fact that the decisions, adopted by the administrative body in its regard, adopted with consideration of the law and thus will be unchangeable, at least, in reference to the past and as a rule under the unchangeable circumstances, regarding the future. This is, in particular, important for the climate of the reliability and legal stability in the country, what not least makes the stable influence upon the economic and investment climate in the country. The Federal Constitutional court of Germany divided the retroactive effect into two groups, mentioning the real and unreal retroactive effect.200 In the case of real retroactive effect any circumstance that has already been completed is retroactively subject to a new legal assessment; in other words, it is a question of the retroactive effect of legal consequences201. This form of retroactive effect is usually contrary to the principle of the rule of law and is therefore generally prohibited.202 Exceptions are recognized only in a few narrowly limited groups of cases, for example, when the person concerned should have expected a change, or the change has been known long before, or is caused by imperative considerations of the public good. The second form of the retroactive effect, so called, unreal force or retroactive effect, connected with the actual circumstances, concerns the circumstances, which have begun in the past, but were not completed, and there has been

200 BVerfGE 63, 346, 356. 201 Such is the new terminology of the Second Senate of the Federal onstitutional court: BVerfGE 92, 277, 325. 202 BVerfGE 95, 64, 86. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 85 influence aimed at the completion of them in the future, devaluating thus the legal positions retroactively.203 As there is no general protection of the trust in the sense that the definite circumstances or positions won’t change in the future, such form of the retroactive effect is in principle acceptable. It should be possible to re-evaluate situations that have not yet been completed, since, as a rule, any legal position and belief in its further existence could not yet be fully strengthened before the situation was completed. Therefore, non-real retroactive effect is only in exceptional cases inadmissible, namely, in particular, in cases where the person concerned, due to certain special circumstances, in a particular case, should not have expected any change204. These constitutional-legal lines, elaborated and differentiated by the Federal Constitutional Court of Germany in judicial practice for several decades find their attraction also in the everyday administrative practice, in particular, when it comes to the abolition or amendment of the administrative acts retroactively. Both the Law of the administrative procedures and the project of Administrative procedural Code of Kazakhstan contain the detailed positions of the circumstances under which it is allowed to change the administrative acts retroactively or repeal them. The detailed differentiated positions, which are at first seem to be complicated enough, present the thin balance of the competitive with each other constitutional principles. Here, in particular, the important role is played by the principle of the legal state and principle of the trust protection. In practice, both subprinciples of the legal state counteract each other and the goal of the mentioned norms205 is to ensure in the particular case the balance between them. For example, if some investor gets the permission to the construction of the plant and begins the construction, have invested to the time when the state body awares that, the permission shouldn’t been given, for example, for the reasons of ecological aspects, which were found out retroactively, the question raises how to agree on the principle of the legitimacy of the executive body activity, arguing for the immediate

203 BVerfGE 123, 186, 257. 204 BVerfGE 68, 237, 307. 205 In German law of the administrative procedures we speak about, in particular, article 48, 49 LAP. 86 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY repeal of the permission, with the principle of the trust protection, arguing for the permission to be left in force. In both cases we speak about changes of the same constitutional principle – principle of the legal state. The legislator, of course, cannot definitively resolve such contradictions; the administrative body must make a decision on a specific case, applying discretion in this particular case. However, the legislator himself does not draw any basic lines of differentiation between these dimensions of the principle of the rule of law. Therefore, the rules of law in the legislation on administrative procedures, as usual (both in Germany and Kazakhstan, and in many other countries, such as, for example, as Estonia, Latvia, Georgia, Azerbaijan, Turkmenistan, etc.), proceed from the fact that the cancellation of illegal, burdensome administrative acts is always possible. However, here both of these principles are not in contradiction, but in agreement with each other: the principle of legality of the activities of administrative bodies requires the abolition of illegal administrative acts; on the other hand, no one has a legitimate interest or confidence in the fact that the administrative act burdening them will remain valid in the future. If in contrast, we speak about the favorable illegal administrative act, the abovementioned principles are in contradiction. The principle of the legitimacy of the administrative bodies argues for the repeal, and the principle of the trust protection- to the favor of the administrative act restoring, if the addressee of the favorable act was entitled to believe in leaving the administrative act in force. Under the condition, that his trust doesn’t deserve protection, principle of the legality of the administrative body activity tipps the balance to the rights of the administrative body, that is to the repeal of the administrative act. This is, for example, takes place when the interested person himself achieved the issuing of the illegal act, for example, by giving not true information or by means of bribery of the administrative body. In such cases he knows of the illegitimacy of the administrative act, and thus, his trust is left in force, at least, doesn’t deserve protection. Thus, the administrative body has the right to cancel the act (cf. § 48 part 2 of the German note). In cases where the person concerned, on the contrary, is in good faith and has not committed PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 87 any wrongdoing, his confidence in the immutability of the administrative act will be given more weight than the principle of legality of the activities of administrative bodies. This rule applies, in any case, when a person has committed any action based on their trust. This happens, for example, when an investor used a construction permit and started building a plant; or the owner of the restaurant, who was given the appropriate permission, has already opened the restaurant and hired staff. That is, in such cases, the confidence of the person concerned in the immutability of the decision made will usually be evaluated higher than abstract considerations about the general legality of the activities of administrative bodies. A number of provisions complement the process of ensuring a balance between the legality of the activities of administrative bodies and the principle of protection of trust. Thus, according to German law, an administrative body may, for example, cancel only within one year from the moment when it became aware of the grounds for cancellation. If the authority misses this annual deadline, the addressee of the administrative act has the right to assume that the administrative body does not intend to cancel the act and, therefore, the balance is again outweighed in his favor. If we are talking about the cancellation of lawful administrative acts, a similar weighting is carried out, and here, as a rule, based on the fact that the legitimate addressee of a favorable act enjoys even greater protection, since both the principle of legality and the protection of trust usually speak in his favor. Then it will be necessary to put very different, weighty legal benefits on the scales. These may, for example, be environmental aspects or imperative interests of the public good. However, as a general rule, the cancellation of administrative acts in such cases will be possible only with the condition of payment of monetary compensation for damage caused by trust. However, in all these possible variations, due to the fact that the abolition rules are discretionary, in practice, the constitutional principles are weighed, in particular, the above-mentioned individual dimensions of the principle of the rule of law. Thus, constitutional principles – even if at first glance it may not look like this – find application in numerous cases every day and are eventually brought into balance. 88 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

d) The principle of proportionality One more important dimension of the constitutional principle of the legal state, which in the everyday administrative practice is being applied practically in each decision is the principle of proportionality. It reads that, any state decision should have the legitimate goal and has to be suitable and necessary and proportional for achieving this goal.206 This means at first that not a single administrative body can freely decide whether to act and in what way to act. Thus, the principle of proportionality states the important restriction of the choice freedom of the executive power, in particular, in those cases, when the law grants it’s the discretion. For example, the police cannot “just” identify any persons or drive them away from any place. This should always serve some legitimate purpose. In the case of police actions, this goal is usually to prevent threats to public safety and order. But if there is no such legitimate goal, the police have no right to act even if they are given discretion. Second, if an administrative body pursues a legitimate goal through its actions (or inaction), then these actions (inaction) must also be suitable for achieving the goal being pursued. It does not matter whether this goal was then actually achieved, since in practice, of course, something can go “wrong”. However, the actions of the administrative body must be at least suitable for achieving the goal. Third, action (inaction) must also be a necessary condition for achieving a legitimate goal. This means, for example, that the administrative body, exercising discretion, has the right to choose only the means that is necessary if there are several possible means. In this case, only the means, that burdens the addressee the less extent, is necessary. However, the administrative body is not obliged to apply ineffective measures or means here. Thus, the police, for example, has the right to use the less burdensome means, which, nevertheless, can quickly and effectively prevent a threat to public safety and order. It is not obliged to use ineffective means, even if these means will burden the addressee of the measure to an even lesser extent.

206 Jarass/Pieroth, Grundgesetz Kommentar, Art. 20 Rn. 80 ff. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 89

Fourth, the administrative body while choosing the means of their action, and in case of existing of several possible addressees of their action, has to act proportionally, in a narrow sense. This implies, that the chosen means is also in proportional ratio when considering the legal benefits protected and possibly violated by this action. Of course, here, too, the old principle applies first of all, according to which the right is not obliged to yield to disenfranchisement. However, it is a requirement of the rule of law that the protected and violated legal benefits are not in clear conflict with each other. For example, an action that requires people’s lives in order to protect property (e.g., the police must shoot a person to do this) will usually be just disproportionate, although the police pursues a legitimate goal (protection of property) with a suitable and perhaps even necessary means. Nonetheless, as a rule, weighing the referred legal benefits (property and life) leads to such a result that the decision to sacrifice life to save property is not exactly proportionate, that is, proportional in a narrow sense. Thus, in a question of estimation of proportionality we speak about the constitutional-legal weighing of the legal goods. Interference in legal goods should always be in proportional relation with the significance of the basic rights as it was formulated by the Federal Constitutional court.207 In other words: “in a general weighting between the severity of the intervention on the one hand and the weight and urgency of the justifying grounds on the other, the limit of reasonable tolerance must be observed.”208

3. Constitutional law and administrative law «The constitutional law passes, and administrative law remains» – in this way sounds the well-known saying of the founder of modern German law, Otto Mayer.209 This saying, of course, bears the print of the time, when Otto Mayer lived and created. At the beginning of 20-th Germany wasn’t characterized by constitutional-legal stability, having place today. Nonetheless, the administrative - legal principle and means of action survived the most

207 BVerfGE 67, 157, 173. 208 BVerfGE 113, 167, 260. 209 Otto Mayer, Deutsches Verwaltungsrecht, Band I, 3. Auflage, Berlin 1924. 90 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY different forms and models of government. This is naturally indicates, on the one hand to the order of coherent work and functioning of the German statehood and functioning apparatus of the professional statesman. On the other hand, from today’s point of view, we could also say that administrative law is so stable in its application, because it is based on principles and basic principles that have not changed at all or practically over a long period of time. However, if you look at these principles more closely, you can easily establish that these are just such principles that we now refer, in particular, to the principle of the legal state. Even if, for example, Prussia in the 18th or 19th centuries was not an exemplary democracy by today’s standards, nevertheless, it is impossible to dispute the existence of the Prussian character of the legal state. For example, Prussian three-class suffrage or the absence of women’s suffrage may be undemocratic, but Prussia has developed a judicial legal protection that guarantees legal statehood. Although the office of professional officials performed administrative procedures without the law on administrative procedures, it was guided by general, partially unwritten rules. These include, for example, criteria for certainty of law, protection of trust, and proportionality. And, in the end, it is the application of strong criteria of a constitutional and legal nature in everyday administrative practice that ensures the stability of the state. It leads to predictability of state actions. It protects the interests of citizens and (private) legal entities. It creates trust in the state and increases its credibility in the eyes of citizens and outside the country. The application of the constitutional principles in the administrative practice is, consequently, inalienable condition for the effective society system as the legal state. There is no necessity in repeating and putting into practice of each proposal of Constitution in a plain (administrative) law. Each individual employee of a public authority, when making any administrative decision and, above all, making discretionary decisions, must always take into account the Constitution and its principles. Only if we can understand the Constitution and its principles, and, ultimately, its application in the interpretation of vague legal concepts in laws PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 91 and in making discretionary decisions, we can talk about a fully developed, effective legal state. The adoption of the APC of Kazakhstan is an important step on this path. But the executive has yet to take an even more important step: the future application of procedural law in the light of the principles of the Constitution. 92 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Michael BLAIR QC Chairman of the Legal Advisory Council of the Astana International Financial Center, Queen’s counsel (UK) THE «ASTANA» INTERNATIONAL FINANCIAL CENTRE: A SPECIAL LEGAL CHILD OF THE CONSTITUTION

It is a great honour to have been invited to contribute a chapter to the official publication to celebrate the 25th anniversary of the Constitution of the Republic of Kazakhstan. My chapter describes the emergence, directly from that Constitution, of the Astana International Financial Centre (the AIFC), as an important institution for the future of the Republic. As I will show, the AIFC has come into being in a relatively surprising and unusual, but still very welcome, way. In the result it is perhaps the nearest equivalent that a nation state can come to taking on willingly the status of parent of an adopted child in the family of the state itself. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 93

The early signs are that this new-born “child” is going to meet with the success which those who brought it into being must have hoped for. Indeed, the progress towards success is, as I write, even faster and more solid than that of any of the similar developments in other countries. The chapter is divided into several parts, as follows: The inspiration of the first President of the Republic; The Constitutional Statute which embodies that inspiration; The structure of the AIFC: institutions and governance; The AIFC Structure in legal conceptual terms; The General Legal Framework, including the AIFC Court system; The process of building the centre, and Early signs of success.

Part 1. President Nazarbayev’s Inspiration. The historical record shows clearly what President Nursultan Nazarbayev, the First President of the Republic, wanted for his country in starting the process for the creation of the AIFC. As part of the May 2015 “Plan of the Nation”, he announced the intention to establish the AIFC: it was in the list of 100 Concrete Steps that formed part of that Plan of the Nation. This reveals four aims of his, relating to the AIFC project, either from what was actually stated, or else by derivation from the specific way in which the project was formulated in legislation in 2015210. First, he wanted a Financial Centre that adopted and upheld the best international standards of financial regulation. A new venture of this kind will succeed only if it aspires to the highest quality available worldwide. Secondly, he wanted a Centre that was infused with the spirit of the common law. The common law has done so much for the western world in providing a workable and just legal atmosphere, especially in relation to commerce, finance and international trade. In particular he admired and wished to rely on the common law of England and Wales, because of its reputation as a system of law that is transparent, incorruptible, just and procedurally fair. Thirdly, he wished the designers of the Centre to be familiar with and to draw inspiration from the international financial centres that have arisen 210 In particular, in the Constitutional Statute approved on 7 December 2015. 94 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY during this century in the Middle East211, and also those older markets further East in Hong Kong, Singapore and elsewhere. Fourthly and lastly, the First President clearly appears to have wanted a Financial Centre which would have effects for the benefit of Kazakhstan as a whole. What was designed in 2015, as I will show below, was not just a kind of international “free-port” planted in the Republic and operating on its own there for international customers etc. On the contrary, the clear intent was to create a centre of excellence that would have positive effects, as it developed, for the benefit of the Republic, its economy and its citizens. The result of these four aims is stated succinctly in the 2015 Legislation. That “Constitutional Statute” describes the purpose of the AIFC as “to establish a leading international financial centre for financial services212”: and five objectives beneath that are set out. Broadly213, they are (a) attracting inward investment in the financial services sphere; (b) developing a securities market and integrating it with international capital markets; (c) developing insurance and banking services, Islamic finance, and innovative projects including “fintech” and “e-commerce”; (d) developing financial and professional services, and (e) securing international recognition. The activities of the centre are by law to be based on the principles of efficiency, transparency, integrity, professionalism and application of international standards and international best practice214. Finally, the Constitutional Statute emphasises215 the important concept of the independence of the AIFC and its Participants, which regulation of the AIFC must respect. It also follows from the first three of these four Presidential aims that the official language of the AIFC was required, by Article 15 of the Constitutional Statute, to be the English language. The international standards of financial

211 In Dubai (2002), Qatar (2004) and Abu Dhabi (2013). 212 Constitutional Law, article 2.1 213 Article 2.2 reads in full as follows: 2. The objectives of the AIFC are as follows: (1) attracting investment into the economy of the Republic of Kazakhstan by creating an attractive environment for investment in the financial services sphere; (2) developing a securities market in the Republic of Kazakhstan and integrating it with international capital markets; (3) developing insurance mar- kets, banking services, Islamic finance, financial technologies, electronic commerce and innovative projects in the Republic of Kazakhstan; developing financial and professional services based on international best practice; (5) achieving international recognition as a financial center. 214 See Article 2.3. 215 Article 2.4. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 95 regulation tend to be written in English and the emphasis on English law made the choice of English as the official language a practical necessity. Further, the other centres that were to be relevant as precedents are ones where English language predominates. Part 2. The Constitution and Constitutional Statute which embody that inspiration As mentioned, the key piece of legislation passed in Kazakhstan was the Constitutional Statute of December 2015.216 This was passed by the Parliament of the Republic and signed by the President, and was thus made law on 7 December 2015. Its enactment took place within the framework of the implementation of the Plan of the Nation “100 Concrete Steps” of May 2015. On 9 March 2017, the Constitutional Council of the Republic of Kazakhstan formally reached a conclusion, in the context of a Law passed by the Parliament on 6 March 2017217, that there was no doubt about the constitutional propriety of the proposal for the AIFC. The amendment to the Constitution itself that was required by the AIFC project was thus itself verified as fully in order from the point of view of the Constitution of Kazakhstan. The amendment to the Constitution was introduced to give full effect to the fundamental principle of supremacy of the system of existing law in Kazakhstan; and, secondly, in order to ensure effective functioning of the newly established AIFC. The Constitution has thus, as the supreme document of the nation, become a solid foundation for the successful development of the Country, acting as the will of the people. The amendment was needed to establish a foundation and a constitutional ground for functioning and further development of the AIFC. This was a strategic decision and a result of the foresighted policy of the First President of the Republic of Kazakhstan to establish a financial hub in the heart of Eurasia. It is also worth noting that this serious step to ensure such a legal environment is an innovative and historical event in the region, which gives certainty and clear vision for the future of the AIFC future from the political perspective.

216 It has since been amended in 2017, in March and again in November, in some minor respects, and so as to create the office of Governor of the AIFC (new Article 10.1 inserted in November 2017). 217 The Law was entitled “On amendments and Additions to the Constitution of the Republic of Ka- kakhstan”, adopted by the Parliament on 6 March 2017. 96 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

I deal below with the central Articles of the Constitutional Statute of December 2015. These were the Articles, which established the institutions required for the direction and operation of the AIFC, through a series of “AIFC Bodies”. However, the Statute also, importantly, set out some of the central legal concepts, which together help to fashion the jurisdiction of the AIFC. The three key ones are: The Acting Law of the AIFC; The Centre Participant, and The Territory of the Centre. The Acting Law of the AIFC. The first of these was the “Acting Law of the AIFC”: this is said218, most fundamentally, to be “based on the Constitution of the Republic of Kazakhstan”. Article 4 then goes on to describe the make- up of the Acting Law of the AIFC, by describing what I think of as three “layers” of law219. The top layer, unsurprisingly, is the Constitutional Statute itself. The bottom layer (if I may jump to that first) is also Kazakhstan law: Article 4.1(3) states that this layer is “the Acting Law of the Republic of Kazakhstan, which applies in part to matters not governed by this Constitutional Statute and AIFC Acts.” That reference to AIFC Acts means the middle layer, which, broadly, is legislation created in the AIFC itself. So, the top layer applies at all times: this is exactly what one would expect of a body of law governing the institution itself. On the other hand the bottom layer, in the provision just cited, is at once both applied and dis-applied. Article 4.1(3) means that Kazakhstan general law is applied whenever the middle layer does not displace that general law. But it also means that Kazakhstan law does not apply at all in the Centre if there has been a valid process of creation of law in the middle layer to displace the general law. Let me give some examples of how that three layered structure works. First, since criminal law is not within the competence of any AIFC Body220, it follows that, as part of the bottom layer of the Acting Law of the AIFC, Kazakhstan’s criminal law and criminal procedure always apply in the AIFC.

218 In Article 4.1. 219 Images used in describing this concept include that of a sandwich or burger (with the top and bot- tom as Kazakhstani and the filling as AIFC law), or a three-layered cake (with an AIFC middle layer). 220 The reason why this is so appears in Article 4.3 of the Constitutional Statute; AIFC law deals with (civil) relationships and not with public order and the protection of the public from crime. Article 13.4 also excludes criminal law from the jurisdiction of the AIFC Court. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 97

Another example would be the Republic’s tax law, though the Constitutional Statute makes provision for a beneficial (50 year) tax regime for some activities in the AIFC221. A third would be law relating to activities in the AlFC’s territory which are not regulated by the AIFC Bodies: hotels, restaurants, sports, and recreation would be good examples of areas where the middle layer is not used, and thus the bottom layer (the general law of Kazakhstan) applies in full. Examples of places where the middle layer is effective to dis-apply the general law of Kazakhstan may also be useful. Most obviously, the Kazakhstan legislation on financial services will give way to the AIFC system. So too will the Kazakhstan law on companies and other forms of legal entity, as long as the AIFC law on that does actually apply on the facts of the case222. However, because of the language223 used in Article 4.1.2 for defining “AIFC Acts” there may possibly be some AIFC legislation that does not actually achieve the displacement of the bottom layer. This would be the case where the purported AIFC legislative provision was inconsistent with the top layer (the Constitutional Statute itself); or where the purported AIFC legislation had not actually been adopted by an AIFC body in due exercise of its powers. In such a case a challenge to the purported AIFC legislation would succeed in restoring Kazakhstan law, whether the case was brought in the AIFC Court (see below) or in the Courts of Kazakhstan. It must, however, be expected that, with the high quality of legal advice available to the AIFC, neither of these risks of legislative mishap will ever arise. Finally, I need to emphasise that the system of law in the AIFC is in no sense sovereign. It is essentially a subsidiary system, bounded by the Constitutional Statute of 2015. Not only does its validity depend upon its not being inconsistent with the Constitutional Statute itself. It also means

221 See Article 6. 222 The AIFC Companies Regulations apply only to companies created under the law of the Centre: so Kazakhstan companies can still be created in the centre where the law chosen for incorporation is Kazakhstan law. 223 Article 4.1 (2) of the Constitutional Statute defines “AIFC Acts’” as acts “which are not incon- sistent with this Constitutional Statute and which may be based on the principles, legislation and precedents of the law of England and Wales and the standards of leading centres, adopted by the ALFC Bodies in the exercise of the powers given by this Constitutional Statute.” I should add that while the first and last parts of this definition are strict (inconsistency; and “intra vires”), the middle one (English law and international standards) is best described as “soft law”; no challenge to validity could be based on these expressions of desirable content. 98 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY that the AIFC legal system is dependent for its future existence on continued acceptability of it to the sovereign legislature of the Republic. The AIFC legal system can continue to exist as long as no amendments are made to the Constitutional Statute, which would have the effect of narrowing or abolishing any of the present provisions of AIFC law. This is of course right and proper in a Centre inside a sovereign state, but the good will towards the AIFC which is clearly noticeable in greater Kazakhstan makes it extremely unlikely that anything would be done to impose new limits on the powers and constitutional position of the AIFC. As has been stated by the Chairman of the Constitutional Council of the Republic of Kazakhstan, “the law of the AIFC ... complements measures to modernise the national legal system of Kazakhstan and helps to increase the effectiveness of activities of legal structures.”224 The Centre Participant. The second key concept is that of the “Centre Participant”225. This means a person who has received permission of some kind from authorities in the Centre to become as it were a “member” of the Centre. This creates a jurisdictional nexus based on personal membership. That is not however enough of its own to create the necessary base for jurisdiction. Geography also has to be brought to bear, as is the case for any concept of jurisdiction, outside the world of religion at least. The Territory of the Centre. The third concept created by the Constitutional Statute therefore was the territory226 of the Centre. Originally quite small, that territory has since been enlarged at the end of 2017, by Presidential Decree, to cover over 1600 hectares and now extends to a large part of Nur-Sultan. These two constitutional concepts together provide the AIFC with a structure built on a deliberate mixture of jurisdiction based on people and jurisdiction based on place. In my experience it is an unusual structure, but one that has considerable benefits for the AIFC, and it is one on which the draftsmen and designers of the Constitutional Statute should be congratulated. What then are the benefits of this arrangement? The first benefit is internal cooperative overlap. In the 1600 hectares in Nur-Sultan, there is no 224 Foreword to the AIFC publication on ‘‘The AIFC General Legal Framework” (September 2G18). 225 See Article 1.5, Article 2.3 and Article 3 of the Constitutional Statute. 226 See Article 1.1 of the Constitutional Statute. The Centre means “the area within the City of [Nur- Sultan] determined by the President of the Republic of Kazakhstan as the area where the special legal regime in the financial sphere established by this Constitutional Statute applies.” PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 99

“exclusivity”. The centre is not the exclusive preserve of the Centre Participants: others can remain there too, or come in afresh to be there too. And these others continue to govern their affairs in accordance with the general law of the Republic of Kazakhstan. Restaurants, clothing stores, hotels and food supermarkets can “rub shoulders” in the Centre with the Centre Participants. It is only the Centre Participants who are bound by the legal system of the Centre. Even banks and other financial institutions can stay in the centre without joining the centre’s own legal arrangements. This is a big advantage of the AIFC approach. Some other centres have been set up on an “exclusive” basis, and this has immediately put pressure on the territorial limits, or the “border” between the Centre and the “mother state”. Arrangements have had to be made there to permit coffee shops and shirt makers, for example, to have a Centre status of some kind if they wish to trade in the Centre. In the AIFC this issue simply does not arise; the coffee shop and shirt maker simply continue to operate under the general law of Kazakhstan. Participants can mix easily with others in the Centre who are not part of it. The key phrase to remember as describing this non­exclusive approach is “No Centre Participation, no compulsory involvement”. The second benefit is “greater external reach”. The effect of the double approach (people and place) produces a result which has been strongly welcomed, and which appears to represent an advance on the “exclusive” generation of financial centres elsewhere. The status of “Centre Participant” derives essentially from the law of Kazakhstan, in the top “layer”, as elaborated in regulations made in the AIFC itself. The result is that a Centre Participant, based in or otherwise legally operating as such in the Centre, is able to use that status so as to carry on regulated activities elsewhere in the Republic without having to comply with the regulatory requirements that exist elsewhere in the Republic. His status as a Centre Participant enables him to carry on those activities “in or from” the Centre. So, a contract entered into between a Centre Participant and a non-participant in, say, Almaty under AIFC law will be as valid as if it had been entered into inside the Centre itself. The key, once again, is “No Centre Participation, no compulsory involvement”. The non-participant can of course say that he does not wish 100 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY to contract on a basis of AIFC law; no one can compel him to do so. But if he does agree to that, then that contract will be valid in the eyes of AIFC law even if the non-participant counterparty has never set foot in the Centre. The result therefore is that the border between the AIFC and the rest of the Republic is a truly “permeable” one, with advantages for both sides as a result. As an example, a resident of Shymkent may wish to have the services of an AIFC Centre Participant in order to buy shares for him, or to manage his investment portfolio. All he has to do is to reach agreement with the Centre Participant in a contract governed by the AIFC law of contract. Equally, an industrial enterprise in Pavlodar, anxious to become a quoted company on the AIX (the AIFC stock exchange), can make arrangements with a Centre Participant to prepare the shares for listing, and manage the launch. The Pavlodar company whose shares are to be quoted might eventually wish to become a Centre Participant in some way, either by incoiporation, or as a branch or by recognition, but this is not required. Both the early stages and the later stages can be dealt with across the “permeable border”. Of course, this involves an approach within Kazakhstan with an element of “opting-in”, and in consequence a system of choice of law. While this means that, in theory, jurisdictional disputes are possible, the legal structure has done its best to reduce the risk to zero or very near. And my observation is that there is a great deal of good will in place as between the jurisdictions of “greater” Kazakhstan and of the centre itself. In the first two years no legal issues about the constitutional structure have to my knowledge arisen. The permeable border, which has over the period 2017-2019 caused some serious constitutional problems in the UK in the Brexit context, simply does not appear to exist here in Kazakhstan.

Part 3. The structure of the AIFC: institutions and governance The Constitutional Statute establishes and gives powers and functions to the various bodies that together form the structure of the AIFC. I deal with governance hereafter, but start with the “AIFC Bodies” at working level. There are four of these. Operational AIFC Bodies. The first is the “AIFC Authority”, which is the PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 101 central capability of the AIFC. It provides the leadership and organisation required for the running of the Centre as a whole. Its specific functions227 are, first, support for the activities of other AIFC Bodies and their organisations, and, secondly, representation of their interests. More specific functions appear in Article 11.4 of the Constitutional Statute, including relationships with relevant international bodies, the central finance function, and powers to regulate activities in the Centre which are not “financial services or related activities”228. The AIFC Authority is thus the provider of the dedicated premises allocated to the Centre and its various bodies. It also has legislative capacity; it possesses the power to propose what might be called “primary legislation” on matters within its powers, and has a direct power to adopt secondary legislation as well. The second is “the Astana Financial Services Authority (AFSA)”, whose function229 is to take responsibility for the regulation of “financial services and related activities” in the AIFC. It has, like the AIFC Authority, legislative capacity, in that it has power to propose what might be called primary legislation and itself to adopt secondary legislation. The third and fourth bodies are the dispute resolution bodies established by the Constitutional Statute. I discuss them further below. The main one is the AIFC Court, as an institution required to be independent in its activities and to be separate from the main judicial system of the Republic. The secondary one is the so-called International Arbitration Centre, to hear and resolve disputes submitted to it by agreement of the parties. There are also a few other working level institutions within the AIFC, but without the status of “AIFC Bodies” as defined in the Constitutional Statute230. I specifically mention here the “Astana International Exchange (AIX)”, because it receives a passing mention in the Constitutional Statute231, albeit not listed as an AIFC Body in Article 9. I also add the AIFC Legal Advisory Council (LAC), which I have the great honour to chair, and which has a status

227 Set out in Article 11 of the Constitutional Statute. 228 This is because “Financial services and related activities” fall within the purview of the AFSA (see below). 229 As set out in Article 12.1 of the Constitutional Statute 230 The list of such Bodies is at Article 9 of the Constitutional Statute. 231 See Articles 1.23.2, where it is referred to as “the Stock Exchange”. 102 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY below that of an AIFC Body, since it was established by the Governor under the Constitutional Statute232, rather than by being mentioned specifically in the Statute. 1 mention the LAC further below. Governance of the AIFC. I turn to the strategic decision making bodies for the AIFC, which are two. First, there is a Management Council, chaired by the President of the Republic, and with broad legislative capacity and strategic powers as well as functions to foster favourable conditions for the development of the AIFC. Secondly, there is the Governor of the AIFC, whose functions are laid down by the Management Council itself, and who in practice exercises the legislative and oversight functions on its behalf on a day to day basis. His appointment is the preserve of the President of the Republic and 1 pay tribute to the Governor, Mr Kairat Kelimbetov, for the energy and vision which he has brought to his carrying on of these highly important functions.

Part 4. The AIFC Structure in legal conceptual terms I have already described the most unusual way in which legal authority to govern and regulate within the AIFC is based on a blend between personal jurisdiction and jurisdiction based on a territorial space. This blend is not unusual in the special field of juridical capacity but is extremely rare in the much broader field of a legal system’s essential structure. Because ofits importance in conceptual terms, I offer some more supporting comment here about the important nexus between “Centre Participant” and “Territory of the Centre” for the purposes of fixing the boundaries of the AIFC legal jurisdiction. Courts are familiar with this nexus in terms of their own jurisdiction. They have a territorial base and are also open to additional jurisdiction based on contractual or voluntary submission to jurisdiction, at least in civil and commercial matters. Arbitrations have “seats” and depend, even more than do courts, on a personal, contractual, agreement between the parties. However, the blend between “territory” and “person” is unusual in relation to the creation of an international financial centre, and in the associated commercial legal system which is required to support it.

232 See Article 11.4.7, which enables the AIFC Authority to offer advice on the establishment of ancillary bodies necessary for the AIFC. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 103

This blend of jurisdiction leads directly to a crucially important aspect of the AIFC model. The interlock between AIFC law and the national law of Kazakhstan, as the “mother state”, is directly, and unusually, affected by this blend between “territory” and “people”. The solution is seen beneficial to the AIFC, and, in my view, also to the Republic of Kazakhstan as a whole. Many of the other financial centres around the world, and especially in the Middle East are “enclave” models. They have a strict border around the relevant territory, whether it is of a few hundreds of hectares or something larger. Within this territory, every person located inside the boundary who carries on financial services is prohibited from doing so unless it, he or she has a licence from the regulator. This is very different from the AIFC. Here, non-Participants in the Centre, as already explained, can carry on trading, even in financial services, under the general law of the Republic. In the AIFC territory, both legal systems operate side by side, depending on who has or has not become a Centre Participant. Nowhere else, with the possible exception of Qatar, does this kind of co-existence of legal systems exist. This is self-evidently a flexible system, which seems very useful to all concerned. And the risk of jurisdictional clashes between the two legal and judicial systems has been greatly reduced by the clarity of the AIFC legal structure, including its ground-breaking Constitutional Statute. Further, in these other centres, the erection of the strict territorial border means that the question where the activity is being performed becomes a key one in one particular and important aspect. Two types of the three types of financial activities that are carried on in such centres are clear. Firms licensed in the centre can do regulated business (i) with other firms so licensed, and (ii) with persons “abroad”, that is, outside the “mother” state as a whole. But the legality of the third type of business, that is regulated business (iii) between a centre licensee and a person resident elsewhere in the “mother state”, is much less clear. It is no secret that there are or have been problems about the “enclave” structure in one or more of these centres, because of the unresolved issue about “which law applies to what?” When a firm licensed in the centre wishes 104 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY to do business with a counterparty in the “mother state”, there has been a question whether it can do so under the banner of the centre licence, or whether it needs to have an additional licence in the “mother state” in order to deal with that person. In the AIFC, by contrast, this question does not arise at all. The AIFC Centre Participant has its own licence, and as long as it carries out business in the rest of the Republic of Kazakhstan in a way that means it is still legally acting as a Centre Participant (registration, residence, transacting/booking the contract in the AIFC, etc), there should be no difficulty about determining which is the applicable legal system. This is the case even where the counterparty is not itself also governed by AIFC law. If it is willing to deal with the Centre Participant under the Centre Participant’s personal law (that is AIFC law) that is the end of the matter. The special structure in the Constitutional Statute has these two substantial benefits. Firstly, inside the Centre, there is no exclusion of persons preferring to remain subject to the general law of Kazakhstan. Banks and Insurance Companies in downtown Nur-Sultan can still carry on all their financial activities there in the same way as before 2018. And, secondly, outside the Centre, the risk of conflict between legal systems is largely avoided, by answering the three simple issues (a) whether there was a Centre Participant in the transaction or process; (b) whether it was acting in that transaction or process within the jurisdictional requirements of the AIFC (registration, business transacted in the Centre etc), and (c) whether the counterparty had or had not taken steps to ensure, as was its right, that the general law of the Republic still applied to its activities. The AIFC is unique in this way - there is, perhaps, no financial centre set up as an internal territory, with its own commercial legal system, but on the basis of a flexible and “permeable” border permitting business to be carried on under its own rules with counterparties in the “mother state”. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 105

Part 5. The General Legal Framework, including the special AIFC Court system I turn from the structural side of the AIFC to the content, again staying in the legal sphere. One of the main activities for the AIFC in its first few years of establishment and operation was the creation of a General Legal Framework (GLF). The infrastructure required to enable a financial centre to operate and grow demanded no less. It is useful to divide the legal infrastructure provided by the GLF into three parts, that is- A system of general commercial law to enable financial services to be carried on; A system of financial regulation to supervise and regulate those carrying on those financial services, and A dispute resolution system, involving at least a Court structure, to deal with disputes and differences that inevitably arise in the conduct of financial services. General commercial law. I start with the first of these three, that is, the AIFC’s general commercial law. This part of the GLF is a codified restatement for the AIFC of the commercial aspects of the common law and statutory legislation of England and Wales. As mentioned above, basing this legal system “on the principles, legislation and precedents of the law of England and Wales, and the standards of leading global financial centres” was a deliberate choice of the first President of the Republic of Kazakhstan. The code is provided in a large number233 of free-standing sets of Regulations, on Companies, Contract, Obligations, Insolvency etc. About half of the total deal with the types of legal entity which are permitted in the AIFC234. The Employment Regulations deal with the relationship between employers and their employees in the various types of AIFC entities. The result is a bespoke codified commercial law in simple language. Each

233 The total is over 25, including some Regulations that have only recently been made, and the various sets of Rules that deal with secondary matters in relation to some of the sets of Regulations. 234 These are Companies, General Partnerships, Limited Liability Partnerships, Non-Profit Incorpo- rated Organisations, and Limited Partnerships. There is also a selection of entities that are more in the nature of vehicles rather than active participants: these include the Special Purpose Company, and (to be found in the Companies Regulations) the Investment Company. 106 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of the various sets of Regulations, reflect, broadly speaking235, English Law on the subject, but with some special features adopted carefully from other jurisdictions236. And it has been necessary to ensure that the imported law in the commercial framework is able to work alongside Kazakhstan law so far as it needs to do so237. The process of creating this commercial law for the AIFC involved input by the Legal Advisory Council of the AIFC, mentioned above. Use of such an advisory body, composed of experienced international commercial practitioners, was a valuable innovation on the part of the AIFC Authority, as I do not know of any other international centre that has proceeded in this way. There would have been another way of importing a code of commercial law, which, deliberately and wisely, was not chosen for the AIFC. This would have been, as at least one other international financial centre has decided, to state that, so far as written laws and regulations in the centre do not deal with a matter, then the law of England and Wales as it is from time to time is to apply. This was not an option in the AIFC, because, as already shown, the underlying base law in the AIFC (the “bottom layer” mentioned above) is the Acting Law of Kazakhstan. And the path chosen by that provision seems better for the AIFC in any event, for two reasons. First, it makes the law of the AIFC much easier to understand and apply, especially in a jurisdiction which expects to encourage local lawyers to practise in the AIFC, rather than simply expecting foreign lawyers schooled in English common law to fulfil the need. Secondly, the necessary process of judicial development (and indeed of legislative improvement) can be handled in a more transparent and efficient way238 if the levers of change are in the

235 This is not the case, however, with the Employment Regulations which reflect the economy and culture of Kazakhstan as a whole. 236 An early decision by the Legal Advisor}’ Council was to recommend many of the “codes” of Eng- lish law rewritten in Dubai as the base for drafting the AIFC Code. 237 That is appears to do so emerges from a foreword to the printed Edition of the GLF written by the Chairman of the Constitutional Council of the Republic of Kazakhstan, Mr Kairat Mami, who wrote (as already mentioned above): “It seems to me that the law of the AIFC, created by the world’s legal lawyers, complements measures to modernise the national legal system of Kazakhstan and helps to increase the effectiveness of activities of legal structures. Eventually, such a tandem will have a positive impact on the strengthening of the Rule of Law in the country and the development of financial system.” 238 It will be recalled that, under the Constitutional Statute, Article2.3, two of the five “principles” which are the base of the AIFC activities are “efficiency” and “transparency”. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 107

AIFC rather than some being in London. All this means that the Judges in the AIFC Court will be able to take into account developments in common law jurisdictions elsewhere so far as relevant to the case being tried. But the central task of the judiciary in the AIFC will be the interpretation of the commercial “Code” provided here. The “Code” develops organically, and not by reference to an outside legal system. Further, the task, for the judiciary, does not include any duty to ascertain and apply what the law is in any parent legal system: instead, it includes the consideration of relevant developments in relevant foreign legal systems as part of the function of applying the AIFC code itself. In the AIFC, therefore, the intention of the Constitutional Statute and of the draftsmen of the commercial “Code” was to enable the law in the Centre to stand on its own feet, as a transplanted but autonomous entity, to a greater extent than in the alternative model. AIFC law speaks for itself and will develop organically with experience rather than by having to apply directly any of the results that belong elsewhere. My own preference is for the greater internal consistency, and I would say autonomy, of the approach here in the AIFC. Financial Regulation. The second limb of the General Legal Framework concerns the key function of the AIFC which is to foster and supervise a financial services sector. The principal Regulations for this purpose are the Financial Services Framework Regulations (FSFR)239. These provide a legal basis for the regulation and supervision of financial services. The Astana Financial Services Authority (AFSA)240 is enabled to regulate by means of these Regulations. It has written a large number of sets of regulatory rules under the powers given in the FSFR. Further, the Astana International Exchange (AIX) derives its authority to act as a market institution in the AIFC by a decision made by AFSA under section 36 of the FSFR.241 The AIX I understand has now been able to list and admit to trading all three of the main types of investment traded on exchanges, that is, shares (securities), bonds, and exchange traded funds.

239 The FSFR were made under the general power to establish the AIFC legal framework under Article 4.3 of the Constitutional Statute. 240 AFSA was established under Article 12 of the Constitutional Statute. 241 The AIX is also mentioned, as “the Stock Exchange” in Article 1.2 and Article 3.2 of the Consti- tutional Statute. 108 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

In addition to the FSFR, there are some parts of the GLF itself which are relevant to financial markets. They provide further support for the smooth functioning of financial markets and mirror those to be found in other financial centres. They include the Security Regulations (governing the process for taking and enforcing of security interests in property), the Netting Regulations and Payment System Finality Regulations. These last two are concerned with upholding the integrity of financial markets when faced with insolvency of one or more market participants. The AIFC Court; and the International Arbitration Centre. The last part of the GLF concerns dispute resolution. These bodies are established at Articles 13 and 14 of the Constitutional Statute, and each of them has its own set of regulations, which derive their authority, not from Article 4 of the Constitutional Statute, which is about the commercial Code, but from the specific legislative powers in Articles 13(5) and 14(2). The purpose of the Court, under Article 13.1 is “to protect the rights and freedoms and legal interests of the parties and to ensure that the Acting Law of the AIFC is implemented”. It is staffed by Judges appointed by the President of the Republic on the recommendation of the Governor of the AIFC. It consists of a Court of First Instance and a Court of Appeal. Its constitution and manner of operation are further set out in a set of Regulations entitled the Court Regulations, which, exceptionally, are made by the Management Council rather than by the Governor. And there are also Rules to regulate the procedure of the Court, made by the Chief Justice of the Court, Lord Woolf, formerly Lord Chief Justice of England and Wales. The Rules have been much complimented for their flexible and fair-minded approach, which is not surprising in view of the fact that Lord Woolf was earlier personally responsible for a major reform in English civil procedure. The AIFC Court is staffed by Judges appointed by the President of the Republic and drawn from the ranks of senior judges in England and Wales and from the English Bar. It operates to the highest international standards to resolve civil and commercial disputes of the AIFC. It is an independent body PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 109 which has exclusive jurisdiction over disputes arising out of the activities of the AIFC and over other disputes where all parties have agreed in writing to give the AIFC Court jurisdiction. Its separate standing from the courts of the Republic of Kazakhstan serves as a safeguard for the rights and privileges provided by the limited constitutional and Acting Laws of the AIFC. Judgments of the AIFC Court, under Article 13.8 of the Constitutional Statute “arc to be enforced in the Republic of Kazakhstan in the same way and on the same terms as decisions of the Courts of the Republic”242, and this also connotes that enforcement of such Judgments will also be accorded in other countries in the same way as it is accorded to decisions of the Courts of the Republic. The International Arbitration Centre (IAC) is a voluntary dispute resolution organisation set up within the AIFC, and staffed in conjunction with the AIFC Court. It has its own sets of Regulations243 and Rules, both of which, again, are regarded as models of their kind. The aim is to offer arbitration, mediation and other forms of dispute resolution with the AIFC. Parties of any kind, whether with a connection with the AIFC or indeed Kazakhstan or not, are free to select the IAC as the forum for their dispute whatever the underlying law of the arbitration etc is to be.

Part 6. The building of the centre After starting life in various buildings in Astana in 2015 onwards, the AIFC finally moved in the course of 2018-19 into the magnificent premises designed for it in the former EXPO 2017 Centre. All of the AIFC Bodies ae now accommodated there in one wing of the pavilions that were established for the 2017 Exposition. The staff required for all the AIFC Bodies and their organisations has been found from the public service of the Republic of Kazakhstan and from some international and local recruitment. In all my dealings with staff in all parts of the AIFC, including AFSA, I have found them to be positively motivated, hard- working and keen to learn from any source how to do their best, especially

242 Under Article 13.9 the converse is also true: the AIFC Court must enforce a decision made in a Court in the Republic. 243 Also made by the Management Council. 110 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY from the overseas contingent which they invariably welcome in an open and friendly way. Although, as stated above, English is the official language of the AIFC and is required by the Constitutional Statute “to be used in all areas regulated by the AIFC”, one hears Russian and Kazakh spoken in the corridors in the AIFC premises, and in the canteens and areas for receptions as well. The AIFC as a whole is led by the Governor, Mr Kairat Kelimbetov, who had previously been the Governor of the National Bank of Kazakhstan. By law244, the Governor is appointed by the President of the Republic. The AIFC Authority itself is led by the Chief Executive and Deputy Chief Executive of the AIFC Authority, Mr Nurlan Kussainov and Mr Marat Aitenov.

Part 7. Early signs of success My final topic is the question how far the decision to proceed with the AIFC initiative has proved to be a success. At the last count there were over 100 Centre Participants, which represents, in my view, a relatively fast take up of the opportunity to operate in the AIFC. Some of the Participants are internationally prominent names which will bring reputational gains to the Centre now and over time. As mentioned above, the AIX is now functioning as an international exchange, with securities, bonds and exchange traded funds on offer. The Centre is attracting a good deal of interest from law firms in Kazakhstan and from abroad as well. An annual showcase, “Astana Finance Days” has twice already boosted interest in the opportunities presented by the Centre. It is not usually easy to measure, on an objective basis, the comparative success of a commercial venture. However, there is in this case a respected external comparator, known as the GFCI index of global centres, which is published every six months with an updated set of rankings. On this basis, like two of the other three broadly comparable Centres (in Dubai, Qatar and Abu Dhabi), the AIFC seems to be making very good progress. For example, the 25th Edition of the GFCI index, in March 2019, shows upward movement, and relatively high standing already, for three of the four centres. The AIFC in Kazakhstan, in particular, has risen from 88th place in March 2018 to 61st

244 Constitutional law, article 10-1. 1 PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS 111 in September 2018 and to 51st in March 2019. The authors of the report245, on the GFCI website, state that it is unusual for a recently launched centre to perform so strongly246. By the time the volume appears, the results of the GFCI which are due in September 2019 should have been made public. It is to be hoped that a further advance from 51st place will be accorded to the AIFC, to reflect the continued progress which it has shown.

Conclusions The AIFC in Nur-Sultan now offers, within what is an essentially civil law country, a financial centre equipped with a common law-based legislation and with a Court system staffed by English judges applying the law as so imported. This common law jurisdiction operates within the boundaries of the AIFC and between AIFC Centre Participants only, but a certain amount of legal co-existence is, even so, required. It has worked in my view very well so far. The codified common law, specially written for the Centre, has been widely welcomed, and the judicial system, though not yet much tested in practice, is seen as very suitable for the imaginative venture which has been pioneered in Kazakhstan. Commentators conclude that this common law, precedent based, “transplant” is working alongside, and is fitting in well with, the rest of the legal system in the country of Kazakhstan as a whole. There is, in the AIFC, a harmonious and well- designed internal legal system in the geographical area of the Centre where English law is welcomed and respected. The amendments made in 2017 to the 1995 Constitution of the Republic of Kazakhstan, the supreme document of Kazakhstan, verified that the AIFC was fully in accord with the spirit and the letter of the Republic’s Constitution, and is established on a secure constitutional foundation which will assist it with its current operations and with further development. The AIFC is the first international financial centre to be established in Central Asia, and thus forms a possible precedent for similar developments elsewhere.

245 The March 2019 Report contained the heading on the front cover “All Eyes on Nur-Sultan”. 246 Over the same one-year period the DIFC in Dubai has risen from 19th to 12”’, and Qatar from 47th to 42nd. Abu Dhabi has stayed stable at 25th or 26”’. 112 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

I am proud to have been asked to contribute to this publication to celebrate the 25th Anniversary of the Republic’s Constitution, and conclude by wishing all success possible to the AIFC, the adopted child of that Constitution. IІ LEADERS OF CONSTITUTIONAL REVIEW BODIES 114 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Farhad ABDULLAYEV Chairman of the Constitutional Court of the Republic of Azerbaijan, Doctor of law CONSTITUTIONALISM IN THE REPUBLIC OF KAZAKHSTAN: SPECIFICITY OF FORMATION AND EVOLUTION

he statehood of Kazakhstan has a centuries-old history. The Declaration of State Sovereignty of the Kazakh SSR of October 25, 1990 was the legitimate result of the struggle for the restoration of independent statehood. TThis historic act has become the most important political and legal act that inspired the democratic constitutional process in Kazakhstan. One of the most important achievements in this process was the adoption of the Constitution of the Republic of Kazakhstan, which established the legal basis for further development. The Constitution, drafted under the leadership of the First President of LEADERS OF CONSTITUTIONAL REVIEW BODIES 115

Kazakhstan H.E. Mr. Nursultan Nazarbayev and adopted on August 30, 1995, has proclaimed the Republic of Kazakhstan as a democratic, secular, legal and social welfare State, the highest values ​​of which are individuals, their rights and freedoms. Public accord and political stability, economic development for the benefit of nation, Kazakhstani patriotism, and solution of the most important issues of State life through democratic methods, including voting in the national referendum or the Parliament (Article 1 of the Constitution), has become the fundamental principles of the country’s activities. The Constitution of the Republic of Kazakhstan has the highest legal force and is directly applicable on the entire territory of the Republic. The Constitution has become the foundation for the development of all branches of law. At the same time, the Basic Law of Kazakhstan is being updated to meet the demands of time. Accordingly, the constitutional reform of 2017 has opened a new page in the political and legal development of the State. In its opinion, the European Commission for Democracy through Law of the Council of Europe (the Venice Commission) has noted that the reform goes in the right direction and constitutes a clear step forward. Understanding and definition of optimal parameters of interrelation between the power and the law is the most important requirement for the development of civil society. The absolute priority of the law, based on high humanitarian and general civilizational principles, constitutes the dominant priority of State and is not limited only by the Rule of Law. Universal human values underlie the Kazakhstani concept of the constitutional rights and freedoms. Thus, the natural law concept of rights and freedoms has found its comprehensive expression in the Constitution. This concept defines that an individual is the source of his natural rights and freedoms which are recognized as absolute and inalienable, in accordance with Article 12 of the Constitution. One of the guidelines of this article is that human rights and freedoms define the contents and implementation of laws and other regulatory and legal acts. This means that, when adopting laws of the Republic of Kazakhstan, the State must proceed from the individual’s constitutional rights and freedoms, from the individual’s and citizen’s interests. This article of the Constitution 116 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY has really embodied the principle of the priority of the individual over the State. The approach to the matters of human rights laid down in the Constitution of the Republic of Kazakhstan is based on the recognition of universal humanistic values, including the idea of respect for human rights, individual’s legal protection, personal autonomy, the existence of a sphere free from the State interference and the arbitrariness of officials. The Basic Law enshrined the concept of the individual’s involvement in a stable political and legal relationship, with the Republic of Kazakhstan, consisting of mutual rights and obligations. In this context, a person appears as an individual and citizen and associated holder of sovereignty, which is of crucial importance for these relations. Not only the State authorities or public officials, but the State, in general, has the obligation to guarantee the individual’s constitutional rights and freedoms. In this context, it should be specifically noted that Kazakhstan actively cooperates with the Council of Europe – an organization whose main goal is the provision of human rights – having used the possibility to access to Conventions open to non-members of the Council of Europe. Moreover, the Republic fruitfully interacts with the Venice Commission of the Council of Europe and this provides with opportunity to have an exchange of best practices in the field of improvement of legislation. The Republic of Kazakhstan respects principles and norms of international law, pursues the policy of cooperation and good-neighbourly relations between States, their equality and non-interference in each other’s domestic affairs, peaceful settlement of international disputes and renounces the first use of the military force (Article 8 of the Constitution of the Republic of Kazakhstan). Kazakhstan purposefully pursues the policy of establishment of the Rule of Law in securing the highest legal force of the Basic Law. Progress has been achieved in establishment of the Rule of Law and advancement on the path of political evolution. The Rule of Law is of fundamental importance for the sustainable economic, political and social development. Special role in the provision of constitutional LEADERS OF CONSTITUTIONAL REVIEW BODIES 117 legitimacy is attached to the constitutional justice bodies with the highest mission of observance the Rule of Law; and the modern civilized, democratic State is a state where the Rule of Law is ensured through independent justice. The legislative framework provides the courts with the tool that allows the judiciary to protect the citizen’s rights and freedoms through the completion of the task defined in the Constitution. The distance covered by Kazakhstan in a historically short period of time is really impressive: over a quarter of a century, the volume of the economy has increased manifold, the ideas and principles of the State governed by Rule of Law have been consistently implemented, and the welfare of the Kazakhstani people has improved. Kazakhstan not only succeeded as a sovereign and equal state, but has joined the ranks of the world’s 50 competitive countries and, today, is approaching the main goal of the Strategy “Kazakhstan 2050” – joining the ranks of 30 developed States. Today, Kazakhstan is a multi-ethnic, multi-religious State – a homeland for people who speak their native languages, manifest their religion, observe their traditions and retain their culture without any restrictions. Kazakhstan participates in the work of regional and international organizations whose activities are in line with its national interests and provide practical benefits. Within the framework of strengthening regional and global security, Kazakhstan develops friendly and predictable relations with all States of the world and their associations; is committed to the goals and principles of the UN Charter and recognizes the fundamental importance of the principle of Rule of Law for political dialogue and cooperation between states; stands for the resolution of regional and international conflicts through the existing internationally recognized negotiation formats. Kazakhstan’s position is based on the UN fundamental principles concerning the sovereignty and territorial integrity of States within their internationally recognized borders, the search for peaceful means of the resolution of disputes based on the implementation of the provisions contained in crisis management documents, and, primarily, the UN Security Council resolutions. 118 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

In its Resolution of November 5, 2009 on the official interpretation of the provisions of Article 4 of the Constitution of the Republic of Kazakhstan in respect to the procedure of execution of decisions of international organizations and their bodies to which the Republic of Kazakhstan is a party, the Constitutional Council of the Republic of Kazakhstan held that decisions of international organizations and their bodies to which the Republic of Kazakhstan is a party, may acquire legal features of an international treaty ratified by the Republic, in case of a direct reference, in the international treaty ratified by the Republic of Kazakhstan, to the binding effect of these decisions for Kazakhstan. Decisions of international organizations and their bodies that violate the provisions of the Constitution (Paragraph 2 of Article 2 and Paragraph 2 of Article 91) concerning the extension of the sovereignty of the Republic to its entire territory and the inadmissibility of changing the unitary State and territorial integrity, and the form of government of the Republic, as established by the Constitution. In the event of a conflict between the international organization’s and/ or its body’s decision binding for Kazakhstan and the normative legal acts of the Republic of Kazakhstan, the decision of the international organization and/or its body shall be in force until such conflict is resolved. Decisions of international organizations and their bodies infringing on the person’s and citizen’s constitutional rights and freedoms may not be applied directly and, accordingly, may not have priority over normative legal acts of the Republic of Kazakhstan. Azerbaijan-Kazakhstani relations have been developing constantly over the years and continue their intensive growth. Following their independence, Kazakhstan and Azerbaijan have developed their relations in the spirit of good-neighbourly partnership, mutually beneficial cooperation on regional and international matters. Azerbaijan and Kazakhstan share many common issues on the international agenda. Particular interest of the Republic of Azerbaijan in cooperation with the Republic of Kazakhstan was conditioned by common historical ties and LEADERS OF CONSTITUTIONAL REVIEW BODIES 119 traditions and belonging of both States to the Turkic world. Our nations are very close in terms of ethnic, religious and cultural values. The Republic of Kazakhstan has become the first post-Soviet Turkic- speaking republic with which Azerbaijan has established bilateral political relations and direct independent relations to preserve, create and develop relations between these brotherly republics in the new historical conditions. The similarity of the tasks that emerged between Azerbaijan and Kazakhstan after the establishment of independent States, such as the need for reforms in the field of state building and the transition to a market economy has led to the comprehensive development of relations between Azerbaijan and Kazakhstan, whose mutual interest in each other’s economy is significant. The President of Azerbaijan H.E. Mr. Heydar Aliyev undertook the most critical steps to strengthen ties between Azerbaijan and Kazakhstan. The national leader of the Azerbaijani people has played a vital role in the foundation and development of bilateral relations between Azerbaijan and Kazakhstan. During the years of leadership of Azerbaijan by Mr. Heydar Aliyev, two countries successfully cooperated within several formats, including the meetings of Turkic-speaking states, ECO and other formats. Thanks to the efforts of the President Ilham Aliyev this cooperation has become more strategic and intensive. Ilham Aliyev’s first official visit to Kazakhstan took place in March 2004. During the visit, President Ilham Aliyev and President Nursultan Nazarbayev had an extensive exchange of opinions on cooperation in the economic sphere, particularly in the field of transportation of hydrocarbon reserves of the Caspian Sea to world markets. Following the visit, the development of cooperation between Azerbaijan and Kazakhstan progressively continued. Azerbaijan and Kazakhstan successfully develop political, economic and cultural ties based on deep historical roots and geographical proximity, common religion, language and culture. To date, Azerbaijan and Kazakhstan have established significant treaty basis for their bilateral relations. 120 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Azerbaijan and Kazakhstan actively cooperate and support each other within the framework of the UN and regional organizations. Both countries are members of the international organization of Turkic culture (TURKSOY), CIS, Economic Cooperation Organization (ECO) and OSCE. The visit of the President of Kazakhstan H.E. Mr. Nursultan Nazarbayev in April 2017 was very productive: a package of agreements was signed to accelerate the development of bilateral relations. Azerbaijan has always welcomed the fair position of Kazakhstan concerning the settlement of the Nagorno-Karabakh conflict based on the norms and principles of international law. Azerbaijan and Kazakhstan held close positions in the process of determining the status of the Caspian Sea. The joint efforts of the Caspian littoral States led to the adoption of the Convention on the Legal Status of the Caspian Sea at the 5th Caspian Sea Summit on August 12, 2018. The Constitutional Court of the Republic of Azerbaijan maintains legal cooperation with the Constitutional Council of the Republic of Kazakhstan. Cooperation between constitutional review bodies is carried out both bilaterally and within the framework of international organizations. In December 2017, the Constitutional Council of the Republic of Kazakhstan was elected Chairman of the Eurasian Association of Constitutional Review Bodies. On August 28, 2018 in Nur-Sultan the Constitutional Court of the Republic of Azerbaijan joined the Association. The shared historical past leaves a positive imprint on the processes taking place in our countries, which gives rise to similar developments, including in the legislation of the countries. Cooperation between our countries and the constitutional control bodies contributes to familiarization with many topical and similar constitutional and legal issues, allows forming legal positions with due regard to modern trends in law. Undoubtedly, further development of mutually beneficial cooperation in all areas of mutual interest will contribute to the strengthening and further development of the State governed by Rule of Law in Azerbaijan and Kazakhstan. LEADERS OF CONSTITUTIONAL REVIEW BODIES 121

We congratulate our colleagues and friends from the Constitutional Council of Kazakhstan and the entire legal community of the country on the 25th anniversary of the Constitution of the Republic of Kazakhstan and wish further success in the activities aimed at protection and development of the State governed by Rule of Law. 122 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Zühtü ARSLAN Chairman of the Constitutional Court of the Republic of Turkey FREEDOM OF EXPRESSION, DEMOCRACY AND CHALLENGES

1. Freedom of expression as a precondition for democracy n affirmative answer to the question whether freedom of expression is still a precondition for democracy must refer to both instrumental and essential justifications. The freedom of expression is still a precondition of democracy for at least three reasons. AFirst of all, we must have the right to the freedom of expression because it maintains diversity and plurality, which are requirements of a democratic society. We live in a diverse society in terms of nationality, ethnicity, religion, ideology, life style and so on. Since modern democracy is and must be pluralist, it requires the cohabitation of different and often conflicting ways of LEADERS OF CONSTITUTIONAL REVIEW BODIES 123 life, ideas and ideologies. The freedom of expression is an effective instrument of nurturing and maintaining such a diverse and plural society and politics. The freedom of expression is the freedom to address others. As a prerequisite of dialogue among individuals, the act of speaking renders us as interlocutors in the community. Therefore, imposing silence on someone deprives him/her of addressing others. In Lyotard’s view, death sentence is evidently wrong because at the same time “it implies the exclusion of the speaker from the speech community”.247 In other words, killing means to “refuse to others the role of interlocutor.”248 Lyotard’s argument is also applicable to terrorism, which is a serious threat not only to the right to life, but also to the freedom of expression. Terror is an act of violence that excludes people from the speech community. Once more Turkey experienced this devastating and agonising affect of terrorism. Two suicide bombers killed at least 97 civilians in Ankara. Those who were killed will never have any chance to address others. Most of them were preparing to participate in a peace rally. Terrorism imposed a dark silence on them. Therefore, combatting terrorism is a precondition of protecting the freedom of expression. Secondly, democracy requires a free public sphere of exchange in which everybody must be able to participate by expressing their opinions. Only through a free expression of our ideas on certain policies we are able to participate in decision-making process including the process of enacting laws. Therefore, the freedom of expression is of a political value that is “indispensable to the operation of a democratic form of government.”249 Finally, the freedom of expression is seen not only as a means for realising a democratic society, but also as an end in itself. This essential or constitutive justification of the freedom of expression is related to the moral responsibility of individuals. Individuals as morally responsible agents must be free to receive and express opinions.4 Therefore an arbitrary restriction on the

247 Jean-François Lyotard, “The Other’s Rights”, Stephen Shute and Susan Hurley (eds.), On Human Rights: The Oxford Amnesty Lectures 1993, (New York: Basic Books, 1993), p.144. 248 Ibid., p.147. 249 Thomas I. Emerson, Toward A General Theory of the First Amendment, (New York: A Vintage Books, 1966), p.10 4 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitu- tion, (Cambridge, Massachusetts: Harvard University Press, 1996), p. 200. 124 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY freedom of expression will violate the radical autonomy of individuals as free moral agents of a democratic society. We value freedom of expression also because it is the sole instrument of communicating our thoughts. The act of thinking lies at the heart of human existence. Descartes’s cogito which is translated as “I think, therefore I am” refers to this existential certainty. Long before Descartes, Mawlana Jalaluddin Rumi considered thought as the essence of a human being. He states that “man consists of thought, and the rest is nothing but flesh and bone”. As thinking and speaking beings, we need the freedom of expression to fulfil ourselves. The denial of this freedom will therefore infringe the essential nature of human beings.

2. Three Challenges for Freedom of Expression Although the freedom of expression is a precondition for democracy, it is by no means an absolute freedom. The right to the freedom of expression may be restricted on certain grounds such as the protection of the rights of others, national security and public safety. The Turkish Constitution also stipulates that the freedom of expression and of the press may be restricted for certain reasons stated in the relevant provisions of the Constitution. In evaluating the restrictions on the freedom of expression, the TCC applies a three-level test. First of all, the Court decides whether the intervention is prescribed by law, that is by an act of parliament. Secondly, the Court examines the existence of a legitimate aim for restricting the freedom. Thirdly, the Court applies the democratic necessity test by referring to the jurisprudence of the European Court of Human Rights. The TCC has consistently pointed out that the freedom of expression constitutes one of the basic pillars of a democratic society. Therefore, in order to restrict the freedom of expression, the public authority must prove the existence of a pressing social need, i.e. compelling reasons, for such restrictions. Today’s constitutional courts face three main challenges in adjudicating the freedom of expression. These challenges have been posed by (a) the protection of privacy and reputation, (b) combatting terrorism, and (c) regulating Internet. LEADERS OF CONSTITUTIONAL REVIEW BODIES 125

2.1 Protection of privacy, honour and reputation It is generally accepted that speech acts such as insult, libel, defamation and hate speech are not protected by the free speech provisions of constitutions. There is, however, no global consensus as to the legal sanctions to be imposed on these speech acts. The Turkish Penal Code, for instance, provides imprisonment for insult and defamation, even though in most cases the terms of imprisonment are either postponed or converted to a “judicial fine”. In some admissibility decisions, the TCC has referred to the Parliamentary Assembly’s resolutions towards decriminalisation of defamation, and ruled inadmissibility by pointing out the non-exhaustion of legal remedies. Accordingly, in cases of insult and defamation, civil law remedies must also be exhausted before lodging a constitutional complaint.250 This is not, however, applicable to cases of “hate speech”, such as anti- Semitism and Islamophobia. As Jeremy Waldron put it eloquently, the restriction of hate speech aims to “protect people’s dignity against assault”, rather than to “prevent people from being offended”.251 The political reason to restrict hate speech is to provide a vulnerable group of people with a certain degree of assurance and security in a democratic society.252 The TCC differentiates between insult or defamation and “hate speech”. In a case, where the applicant claimed that he had been subjected to “hate speech”, the Court tried to clarify the boundaries of “hate speech” by referring to various instruments of international human rights law. The Court noted that in cases of “hate speech” the applicant did not have to exhaust the available civil remedies alongside the criminal procedures. However, having applied the principles to the application in question, the Court reached the conclusion that the expressions at issue could not be considered as “hate speech”, because those were mere reflections in an ongoing public debate on the ideas and actions of the applicant. There is no doubt that the freedom of expression largely guarantees the freedom of individual to criticise thoughts and opinions of those using the public authority, who are expected to tolerate even harsh criticisms. In the

250 Adnan Oktar (2), Application No: 2013/514, 2/10/2013, par.35. 251 Jeremy Waldron, The Harm in Hate Speech, (Cambridge, MA: Harvard University Press, 2012), pp.105-106. 252 Ibid., pp.100-104. 126 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Court’s opinion, the freedom of political expression deserves greater protection, simply because it is “the core principle of all democratic systems”.253 The Court has also taken up the issue of whether the fact that verdict about the applicant was postponed might render the interference as acceptable and proportionate to the legitimate aim pursued. The TCC has responded to this question negatively by stating that the possibility of being subject to sanctions in the future may create a chilling effect on authors who may refrain from expressing their opinions or engage in press activities.254 The Court has reached the conclusion that the restriction on the applicant’s freedom of expression and the freedom of the press for the purpose of the “protection of the reputation” is not necessary in a democratic society. In a recent judgment, the TCC has once again pointed out that the limits of acceptable criticism involving politicians and public officials are wider, such as a metropolitan mayor compared to private individuals.255 In this case, the applicant as a radiation oncologist had published a press release criticising the quality of the drinking water provided by the Ankara Metropolitan Municipality. In turn, he had been sentenced to pay 750 TL in damages for insulting the metropolitan mayor. According to the first instance court, the applicant’s expressions had reached beyond criticism, because there was no scientific certainty as to the quality of drinking water.256 The TCC rejected this argument by clarifying that the requirement of scientific certainty as a criterion to participate in a public debate would make such participation impossible. It is therefore incompatible with the requirements of open society.257

2.2 Freedom of expression in an age of terrorism Terrorism is a most serious threat not only to the right to life, but also to all rights and freedoms, including the freedom of expression. Terrorism imposes silence on people not only by killing them but also by poisoning the democratic environment. Therefore, the expressions that incite and praise

253 Bekir Coşkun, (Plenary), Application No: 2014/12151, 4/6/2015, par. 64. 254 Bekir Coşkun, par. 70. 255 Ali Rıza Üçer (2) (Plenary), Application No: 2013/8598, 2/7/2015, par.61. 256 Ali Rıza Üçer(2), par. 13, 58. 257 Ali Rıza Üçer(2), par. 59. LEADERS OF CONSTITUTIONAL REVIEW BODIES 127 violence fall outside the scope of the freedom of expression. Since the terrorism aims to paralyze the democratic political order and to undermine a pluralistic civil society, we are bound to combat it while protecting the basic values. We must keep in mind the following principle laid down in the Council of Europe’s Guideline on Human Rights and the Fight against Terrorism: “it is not only possible, but also absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international humanitarian law.”258 Bearing this principle in mind, the TCC tries to protect the freedom of expression even in rather difficult cases. For instance, in a constitutional complaint case, the applicant, who was the leader of a terrorist organisation, asserted that his freedom of expression had been violated, because his book had been confiscated and partly destroyed by the state authorities. Inits decision, the court of first instance had ruled that the map at the cover page, the identity of the author as the leader of a terrorist organisation, and finally the content of certain pages had indicated that the book had been written to propagate the terrorist organisation in question.259 The Turkish Constitutional Court, sitting as the Plenary Court, examined each argument of the confiscation order in details. For the Court, the cover- page, the identity of the writer and certain pages of the book that seemed to incite violence could not be taken in isolation. On the contrary, the message and aim of the book had to be evaluated as a whole. Although, some pages of the book were really disturbing or even shocking to certain part of society, the bulk of the book was about a critical and historical analysis of the so-called “Kurdish problem”. The author, among other things, called for a recognition of the “Kurdish reality” and for a peaceful solution of the problem without recourse to armed resistance. The Court noted that, compared to other means of mass communication, the applicant’s book aiming to describe the changing ideology of the terrorist organisation spoke to a limited group of people. It also pointed out that the

258 CE, Committee of Ministers, Guidelines on Human Rights and the Fight against Terrorism, H (2002) 4, Strasbourg, July 2002. 259 Abdullah Öcalan (Plenary), Application No: 2013/409, 25/6/2014, par. 14. Full text of the judg- ment is available in English at www.anayasa.gov.tr/en 16Abdullah Öcalan, par. 102, 106, 112. 128 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY copies of the book had been destroyed by the authorities in the absence of a judicial decision in that regard. Having emphasized the importance of the freedom of expression and of the press in a democratic society, the Court reached the conclusion that the confiscation of the book at issue was not proportionate with the legitimate aim of protecting national security and public order.

2.3 Freedom of expression in an age of Internet In the much-highlighted Twitter case, where the applicant lodged an individual application directly to the TCC, the Court first examined the question of admissibility. The Constitution and the Law on the Constitutional Court explicitly provide that all legal remedies must be exhausted before launching a constitutional complaint. The TCC held that as a rule all legal remedies available must be exhausted before lodging a constitutional complaint. Yet, the Court also clarified that legal remedies must be effective and capable to remove violations of rights. Moreover, under exceptional circumstances where the urgent action was necessary to halt possible breaches of rights and liberties, the individual application could be declared admissible by avoiding the condition of exhaustion of other legal remedies. The Court then declared the application admissible on the ground that the administrative courts did not provide a reasonable chance of success. On the contrary, the failure and indeed reluctance of the authorities to lift the ban on Twitter despite a stay of execution decision delivered by Ankara Administrative Court was the main reason for the admissibility. The TCC stated that the uncertainty as to the lifting of the ban affected the freedom of expression of millions of people.260 As to the merits of the case, the TCC found a violation of the freedom of expression by the public authority insofar as a blanket ban of Twitter was not prescribed by law. The Court clearly indicated that the relevant law did

260 Yaman Akdeniz and others, Application No: 2014/3986, 2/4/2014, par.26. Full text of the judg- ment is available in English at www.anayasa.gov.tr/en LEADERS OF CONSTITUTIONAL REVIEW BODIES 129 not authorise the administrative body (The Directorate of Telecommunication and Communication) to completely block access to Internet sites like Twitter without a judicial decision.261 In its Youtube judgment, the Court similarly found a violation of the freedom of expression in the ban for lacking a legal basis. Referring to the judgment of the Strasbourg Court in the case Yıldırım v. Turkey, the TCC this time questioned the quality of the law and stated that the law constraining rights and liberties had to possess certainty and foreseeability. The Court declared that the relevant provisions of the Internet Law failed to meet this condition.262 In both judgments, Twitter and Youtube, the Court also stated that Internet and social media played a crucial role in democratic societies as widely used and efficient means of the freedom of expression. Given this function of Internet, the Court states that the authorities have to act carefully and responsibly in regulating Internet.263

Conclusion Using certain facilities provided by Internet, today terrorism poses the most formidable challenge to democracy and the freedom of expression. Perhaps the best response to terrorism is to ensure the cooperation of democratic powers in protecting and promoting the political values that terrorism aims to destroy. We should therefore agree on the necessity of fighting all forms of terrorism while respecting the freedom of expression as the cornerstone of a democracy. Given the essential role of the freedom of expression in a democratic society, we as the judges of constitutional and supreme courts must be more vigilant against restrictive measures. Those measures may arbitrarily curb the right to the freedom of expression even if they are imposed in the name of fighting terrorism.

261 Yaman Akdeniz and others, par.49. 262 Youtube Llc Corporation Company and others (Plenary), Application No: 2014/4705, 29/5/2014, par.56-57. Full text of the judgment is available in English at www.anayasa.gov.tr/en. 263 Yaman Akdeniz and others, par. 39; Youtube Llc, par.52. 130 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The freedom of expression is necessary not only for a pluralist political and civil society, but also a precondition of realising ourselves as moral agents. Let me conclude my speech by citing Rumi’s insightful words about free speech. He says: “As you are not a slave, speak like a Sultan (a King); express your opinions as you wish”.264

264 Cited in Ergin Ergül, Rumi: A Source of Inspiration for Universal Justice and Peace, (Konya: Konya Metropolitan Municipality, 2014), p.49. LEADERS OF CONSTITUTIONAL REVIEW BODIES 131

Boris VELCHEV Chairman of the Constitutional Court of the Republic of Bulgaria, Doctor of law, professor CONSTITUTIONAL FOUNDATIONS OF CRIMINAL LAW OF THE REPUBLIC OF KAZAKHSTAN

A few years ago I received an invitation to provide my material for a collection devoted to the Constitution of the Republic of Kazakhstan265. This caused my interest to law of this wonderful country. My professional interests were naturally associated with the criminal law in Kazakhstan. In the republic, since recently operated only the advanced Criminal Code that can be a role model in many other countries. One of the most reliable criteria for the democracy of a state and its legal nature is the harmonious connection between its constitutional and criminal law.

265 Constitution of the Republic of Kazakhstan, Scientific and practical commentary, Astana, 2018 132 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Frequently, the Constitution are seen not as a law in force, but as a catalog of excellent wishes on the human rights and democratic development of society. The most progressive legal acts - constitutions sometimes become meaningless by the criminal laws in country are deprived of effective guarantees of their supremacy. The action does not comply with the constitution of criminal law is the most serious possible endeavor on the rights of citizens. The supremacy of constitution, including and in the field of criminal law, is provided by three primary ways. The first - the inclusion in the Constitution of basic legal provisions involving substantive and procedural criminal law. The Constitution of the Republic of Kazakhstan contains all the basic legal provisions applicable to criminal law. It settles rules on extradition / art. 11 /, necessary defense / art. 13 /, the right to life and the death penalty / art. 15 /, personal freedom / art. 16 /, prohibition of torture and torment / p. 2 art. 17 /, privacy of correspondence and bank secrecy / art. 18 /, inviolability / art. 52 /. In art. 77 provides a long list of provisions providing a constitutional foundation for the most significant principles of criminal and criminal procedural law. The second element is associated with the body responsible for control over the constitutionality of laws. In the Constitution of the Republic of Kazakhstan, this is Constitutional Council that has an impressive practice on issues related to the constitutionality of certain provisions of the Criminal Code. The presence of mentioned provisions of the constitution allows the Constitutional Council of Kazakhstan to consider the compliance of the provisions of laws with the provisions of the constitution and make a decision. This procedure of ensuring the supremacy of the constitution is a guarantee against criminal law that does not comply with the constitution, but it is not effective enough. The bodies that have the ability to appeal to the body of constitutional review, most commonly, are few. Sometimes some of them have their own political reasons to refrain from applying to the constitutional court. This may lead despite a progressive constitution, to the existence of clearly incompatible with the constitution provisions affecting the rights and interests of citizens, including by means of punitive repression. LEADERS OF CONSTITUTIONAL REVIEW BODIES 133

The third – through the indications of the immediate effect of the constitution. Therefore, each court in its own way is “constitutional”. Indeed, his decisions have not erga omnes effect, but are binding on the parties to the case, are an effective guarantee that any incompatible with the constitution criminal law provision will not be applied in a particular case. The simultaneous availability of all three types of guarantees is uncommon even in states with a long legal tradition. However, in fact it exists in the legal system of the Republic of Kazakhstan. The difficult historical way of the Republic of Kazakhstan, the long soviet past, the necessity for a sharp transition to a new level of development in the early 90s of the ХХth century - all this may raise some doubts in the high quality of its constitutional and criminal law. These doubts would be groundless. The wisdom of the people of Kazakhstan and the political leadership of the First President of the Republic, since the beginning of democratic change to the present day are reflected in law of this state. It combined the historical tradition of kazakh people and some of the most progressive european legal attitudes. The result of this was a harmonious combination of the national characteristics of kazakhtan society and the requirements of a modern legal state. I can responsibly declare that the Constitution of the Republic of Kazakhstan contains all the basic guarantees of rights and freedoms of citizens, attributable to criminal law. Allow myself to give a few examples. Mandatory to start with the right to life. Paragraph 1 article 15 of the Constitution does not just proclaim that everyone has the right to life. It also determines that the death penalty - an exceptional measure, applicable only to two groups of crimes - for terrorism involving human casualties, and for especially serious crimes committed during wartime. This constitutional provision is the point of intersection between the two previously mentioned beginnings. On the one hand, it corresponds to the historical tradition, but, on the other hand, in practice limits the death penalty to the degree of practical exception. Even in these two strongly limited hypotheses, the convicted person 134 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY cannot be denied the right to pardon. Furthermore, since January 1, 2004, at the initiative of the First President of Kazakhstan Nursultan Nazarbayev established an unlimited moratorium on the death penalty. It reminds me of historical experience in my own country - the Republic of Bulgaria. During the entire contemporary history, the bulgarian criminal law stipulated the death penalty. At the beginning of democratic processes (late 1989s) established a moratorium on the death penalty that led to its abolition in 1998s. I have no doubt that it will be canceled in Kazakhstan, when suitable conditions are ripe. Attempts made to date clearly indicate this.

Meanwhile, the Constitution of the Republic of Kazakhstan does not provide restrictions on the right of everyone to protect his own life from illicit attacks. This is one of the few constitutions known to me that specifically expressed the right to the necessary defense / art. 13/. This circumstance enabled to create in the Criminal Code a modern regulation of the necessary defense / Art. 32 /, which specifically stipulates that there is no exceeding the limits of necessary defense in cases when the attacker attempts on the life of a defender or threatens with a similar attack. This example is a correct evidence of harmony between the Constitution and the Criminal Code of Kazakhstan - an important feature of a modern legal state. Nevertheless, in the Criminal Code of Kazakhstan has a provision that has no analogue in many states - paragraph 2 article 1 provides that the code is based on the Constitution that has the highest legal force and direct effect on the entire territory of the Republic266. In cases of contradictions between the provisions of the Criminal Code and the Constitution, the latter have primacy. Moreover, the code does not only stipulate that the norms declared unconstitutional are not applied. This is natural and cannot be otherwise if the Constitutional Council of Kazakhstan adopted such a decision. However, the law made one-step further. This provision of the Code grants power to any kazakh court to assess whether this provision of the Criminal Code is

266 This is not just a repetition of article 4 of the Constitution of the Republic of Kazakhstan. The transfer of this constitutional provision is of great practical importance, because it thus loses its legal abstraction and acquires the force of a specific instruction addressed to all judges. LEADERS OF CONSTITUTIONAL REVIEW BODIES 135 consistent with the Constitution267. This is an exclusively vanguard decision, confirming the legal nature of the Republic of Kazakhstan. It should be remembered that the most important feature of a legal state is the supremacy of the constitution. And here’s one of thing - such a mechanism is also provided for the direct operation of international treaties. The Criminal Code itself does not merely repeat the constitutional provision on the primacy of international law, but imposes an obligation on the court to conform to it. I’m looking at to this fact not coincidentally. Each state is particularly jealous to its sovereignty, one of the most prominent manifestations of which is criminal jurisdiction. In the Republic of Bulgaria, the Constitution also provides the primacy of international over domestic law. The Bulgarian Constitutional Court in practice severely restricts this primacy in the field of criminal law, believing that crimes and punishments for them can be established only by law and the provisions of international treaties can be used only in cases of interpretation of this law. This position of the bulgarian Constitutional Court has its constitutional grounds, but restricts the direct effect of international criminal law. The kazakh constitutional order, vice versa, open to international law and allows its direct application in the country’s criminal law. This vanguard determination shows the advanced spirit of constitutionalism in Kazakhstan. The kazakh Constitution proclaims the dignity of a person indefeasible. Essentially, the right loses the meaning in case if protects a person only as a biological being. The protection of human dignity - the main feature of the state of law. Obviously, a wide range of legal norms provides it, but especially by the norms of criminal law. In this case, through the compositions of defamation and insulting /articles 131-132 Criminal Code/ kazakh criminal law provides effective protection of the honor and dignity of a people. I bring to the attention to this fact because unfortunately, in recent years there has been a tendency to evade the protection of dignity by criminal law and a tendency to decriminalize insulting. Only a few years ago, this happened in the

267 In fact, decision No. 3 of the constitutional Council of Kazakhstan of March 6, 1997, emphasizes that the Constitution has direct effect not only in criminal cases, but also in all court cases. 136 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY criminal law of Russia; there insult is no longer a crime and is punished under administrative procedure. The criminal law of the Republic of Kazakhstan carries out the enactment of the constitution to grant immunity to human dignity. Indeed, criminal law should be the last resort in combating offenses, but there are acts that cannot be punished otherwise than the means of criminal repression. Any deviation from the criminal defense of the human dignity transforms the constitutional provision on his immunity to an ordinary wish. The effective means of protecting the human dignity are provided in the Republic of Kazakhstan, which is another evidence of the balanced relationship between constitutional and criminal law. I would like to provide the conclusion made earlier - the supremacy of the Constitution in the Republic of Kazakhstan can be defended any criminal court. Whatever the norms of criminal and procedural law, each court will be obliged not to accept them if they contradict such basic provisions of art. 77 of the Constitution, as the presumption of innocence, the prohibition to be subjected to repeated responsibility for the same act, the interpretation of doubts in favor of the accused, the dismissal of evidence obtained illegally, the right not to testify against close people, the prohibition on retroactive effect of the more severely criminal law, enforcement by analogy in criminal law. The Constitution of Kazakhstan provides to the legislator space in the creation of contemporary criminal law. I would like to highlight some constituent elements that I believe illustrate the understanding that Kazakhstan has an exclusively contemporary criminal code. As a specialist in criminal law, I cannot help but mention the provisions of art. 118 that regulates the infection with the AIDS virus, the incrimination of mercenarism, ecocide /art. 169/ or exceptionally elaborated in details chapter seven, covering computer crimes. Even the human cloning is incriminated in the criminal law of Kazakhstan / art. 129/ that is clear manifestation of perspective thinking in the field of criminal law. LEADERS OF CONSTITUTIONAL REVIEW BODIES 137

Even «direct or indirect» restriction of the rights and freedoms of a person and citizen /art. 145/ is incriminated in the Criminal Code of Kazakhstan, as for impeding the legal professional activities of journalists /art. 158/. Even only two of these instances give an idea on exceptionally progressive nature of criminal law in the Republic of Kazakhstan, about the uncompromising protection of the rights and freedoms of citizens. It is difficult to provide a more reliable criterion of the legal nature of the Republic of Kazakhstan than a successful combination of a modern constitution and an advanced sometimes vanguard criminal code. The Constitution of the Republic of Kazakhstan - an advanced constitution ensuring the achievement of its aims - the construction of a democratic, secular, legal and social state. It harmoniously combines the traditions of the people of Kazakhstan with the achievements of european constitutionalism. The geography textbooks said that a small part of Kazakhstan belongs to the european continent. I don’t know how in terms of geography, but by virtue of its Constitution and modern criminal law, the Republic of Kazakhstan is an integral part of the european legal space. 138 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Valery ZORKIN Chairman of the Constitutional Сourt of Russian Federation, Doctor of law, professor CONSTITUTIONAL IDENTITY IN CONJUGATION WITH THE NATIONAL AND STATE-TO-STATE LAW ORDERS

1. The problem of constitutional identity setting he notion of the constitutional identity in Russian constitutional- legal practice emerged recently. For the first time it was used in the resolution of the Constitutional Court of July 14, 2015. № 21-R, and later of April 16, 2016 — in connection to the issue of the possibilityT of the European Court resolution enforcement, which considered that the norm of the Russian Constitution, which forbids the participation of the individuals in the elections, staying at the places of deprivation of liberty, doesn’t correspond to the European Convention on human rights and liberties protection. LEADERS OF CONSTITUTIONAL REVIEW BODIES 139

Doctrinal approaches to this problem began to form much earlier (the impetus was the famous case “Markin V. Russia”). Foreign legal practice had a certain influence on the development of the relevant doctrine. However, the main factor that led to the formation of the doctrine of the constitutional identity of Russia was the peculiarities of the world political and legal development in recent years, which stimulated interest in the appropriate interpretation of the Russian Constitution. And first of all, the text of its Preamble, where the characteristic of Russia as part of the world community is adjacent to the words that the peoples of Russia are united by a common destiny on their land, that they honor the memory of their ancestors and are responsible for their Homeland before future generations of Russians. In the doctrine and practice of the constitutional courts, there is no unity in the understanding of national constitutional identity. In explanation of this situation, it should be noted that although the concept of constitutional identity in science is not yet sufficiently developed, nevertheless, leading experts do not limit the interpretation of this concept to the letter of the Constitution. Thus, the American Professor M. Rosenfeld notes that the term “constitutional identity” can be invested with a completely different content: from the provisions of the Constitution as a written document, including, for example, the foundations of the Federal structure, to the relationship of the Constitution and the culture of the corresponding society, which suggests including in the constitutional identity also other identities, such as religious, national or ideological. The French professor Michele Troper assumes, that the constitutional identity is manifested in the substantive principles of the Constitution, these principles constitute the basis of other norms and serve for the protection of the Constitution itself, including the cases of danger of infringement of the links between Constitution and the humans or people, to whom it is called to serve268. This approach seems to be more appropriate. We should pay attention at the last thesis of the cited saying, on the sense of which the constitutional identity – this is what one can refer to for

268 Michel Troper. «Behind the Constitution? The Principle of Constitutional Identity in » in Andras Sajo and Renata Uitz (eds.) Constitutional Topography: Values and Constitutions. 2010. 140 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY maintaining links between Constitution and the humans or people, to whom it is called to serve. In the given context the constitutional identity as the notion means the expressed first of all in the basis (principles) of the constitutional structure the essence of the nation- state in sociocultural context of the general pattern and specific features of the historical development of the country. The concept of the national constitutional identity allows to define the most significant provisions of the Constitution and based on them national law order and serves as the restraining factor, legal barrier on the way to unpredictable activists expansion on the side of supra-national regulation. For the sense of this thesis clarification I would like to say a few words of those socio-cultural differences in the mentality, which exist between western societies and Russia. In the plane of legal consciousness, these differences are focused on approaches to understanding such a key category for public consciousness as the common good. In the West, the common well-fare has traditionally been seen as a condition for the good of each individual. Moreover, in recent decades, in legal theory and practice, this category is increasingly receding into the background, giving way to a liberal-individualistic interpretation of human rights. And in the Russian cultural matrix, the concept of the common well-fare has always occupied and continues to occupy a much more significant place. That, by the way, is reflected in the text of our Constitution, where there is a norm of part 3 of article 55, according to which the rights and freedoms of man and citizen may be limited by law “to the extent that this is necessary in order to protect the foundations of the constitutional system, morality, health, rights and lawful interests of other persons, national defense and state security”. Thus, the Constitution provides for the restriction of human freedom not only by the rights of others, but also by constitutional values, which can be defined as the values of the common good. Our society’s understanding of these values is the main semantic content of the concept of the constitutional identity of the people and the state. And it is obvious that the Constitutional Court in its decisions and legal positions cannot ignore this fundamentally important circumstance. LEADERS OF CONSTITUTIONAL REVIEW BODIES 141

In the context of problems related to the development of the doctrine of constitutional identity, I want to emphasize that the basis of this concept is the recognition of the fact that the understanding of law (and above all human rights) in a particular society and state is the result of public agreement on what a person is and what his human dignity is. If we accept this thesis, we must recognize the following points that follow from it: first, public consent on the issue of human rights in different States has a socio-cultural specificity; secondly, it is precisely social consent that is established by the majority of society and is established for the majority. I do not mean that the doctrine of constitutional identity is focused only on the protection of the rights of the majority. But I want to emphasize that the rights of minorities can be protected to the extent that the majority agrees with this. If the “advanced” part of society believes that the majority does not do enough to protect minorities, then it (this “advanced” part) must find ways to convince the majority by word and deed of the need for legal improvement. This is a difficult, ungrateful job, not designed for quick success. Unfortunately, there is no other way. Because the attempt to impose on a particular society not peculiar to it ideas about human dignity and the rights of certain minorities can be effective only in a very limited extent. And this applies not only to Russia. After all, the surge of populism in the West is largely due to the underestimation of the majority opinion and infringement of its rights. Continuing this line of reasoning, it is logical to ask the question: what, in this case, is the general formal-normative criterion of “correct” and” incorrect” interpretation of both the international agreement and the constitutional text? Obviously, political expediency cannot serve as such a criterion. A more controversial answer would be the concept of judges’ beliefs, which can certainly influence a decision, but it is hardly possible to measure this influence or even fit it into a strictly legal framework: social, psychological, and other factors must be taken into account. The answer seems quite definite. It is necessary to be guided by the principle of good faith when making decisions by judicial bodies. 142 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The principle of bona fides, which was established in Roman private law as a principle of contract law, is now increasingly asserting itself as a legal principle also in the field of international and supranational relations. The legal character of this principle is given by its internal relationship with the General legal principle of equality and the resulting constitutional principle of justice. Вona fides, as a principle of good faith cooperation of states that have agreed to accept the jurisdiction of an interstate body, implies both loyalty to the Treaty (in the form in which it was agreed) on the part of its participants, and the obligation of the interstate body to take into account the reasonable expectations of all parties to the relevant international Treaty and, consequently, to act in accordance with General principles of law. And in this sense, this principle is one of the expressions of equality of the parties to the international agreement. From the point of view of this principle, it is obvious that when one state becomes more closely criticized than others (other things being equal), or when an interstate body begins to perform its statutory functions with an eye to political rather than legal considerations, the principle of good faith is violated. In my opinion, these ideas are appropriate to use in discussions about the correlation of legal force of the Constitution and the European Convention for the protection of human rights and fundamental freedoms, as the interpretation of the Convention by the European Court sometimes contrary to the requirements of equality and fairness — changes the terms of this intergovernmental agreement. The doctrine of the constitutional identity, upon which we still have to work much, can serve that “watershed”, which is potentially able to divide the acceptable and at times desirable changes of the inner constitutional law order, inspired, for example, by supra-national body on the human rights protection, and those principles, by which the states, which acknowledged the obligatory jurisdiction of such bodies, can not compromise on. The given doctrine assumes not the textual interpretation of the constitutional changes, including the use of the achievements of the modern hermeneutics which has come out of the boundaries of interpreting exclusively the texts. LEADERS OF CONSTITUTIONAL REVIEW BODIES 143

It does not follow from this doctrine that every fact of inconsistency between the norms of international law and national legal institutions is an attempt on constitutional identity. Particularly important legal principles that form the backbone of the national legal order need to be protected. Obviously, not all legal traditions are included in this core. Therefore, we need a methodology for recognizing both “nuclear” legal traditions, the destruction of which means the loss of identity based on the rule of law, and those stereotypes of public consciousness that are an example of legal inertia or even anachronism.

2. The factors, which influenced on the actualization of the problem of the constitutional identity of the state. The problem of the supra-national constitutional identity has actualized under the influence of the two actuals for the last time tendencies: 1) revival and spread of the populist’s ideology, which have covered the modern developed societies all over the world and 2) increase of the contradictions between national and supra-national judicial systems, which becomes more and more notable in different world regions. The most obvious (laying on the surface of the political life) tendencies of the last decade is the spread of the populism ideology as of the right, so of the left sense. Populism is connected with the crisis of the characteristic to the post war of the liberal world order, the values of which in the light of the global events lose their past significance. One of the consequences of such change of the guidance of the development is the return of the states and nations to their traditional values, which can not but reflect the law. In doctrines and legal positions, on which the bodies of the constitutional control base while collaboration with state-to-state judicial bodies, the problem of national constitutional identity is given more and more attention. The examples, confirming the fact of the broad populist’s turn are well- known. But from the point of view of the law, it is not populism itself that is interesting, but what is behind it. After all, populism is just a manipulation of the mass consciousness, using a very natural human desire for well-being. More specifically, it is such manipulation, which is based on the promise of 144 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY a simple solution to complex problems, addressed to the so-called simple, ordinary person. Populism is amplified at critical moments in history, when the existing elites and existing political and legal institutions can not cope with new challenges and are not able to solve the problems facing people. And we live in an era of serious tectonic shifts in the entire system of the world order, generated by the processes of globalization, which carry not only good, but also huge risks and already quite obvious costs. These risks and costs affect ordinary people in all regions of the world, although they manifest themselves in different ways. For countries that are not among the leaders of technological progress, globalization carries the risk of entrenching their periphery, and in some cases, complete marginalization. The problem of the democratic deficit of supranational bodies on human rights protection, including the European Court for Human rights. From the moment of the enforcement of the 11 Additional protocol to the Convention on human rights and basic liberties, the ECHR uses all the formal opportunities to change the convectional system and bringing to life its activists position, for what the Court uses different theoretical justification and constructions –from the doctrine of the European consensus and the limits of state discretion to the understanding of the Convention as a “living instrument”. At the same time, the influence of European citizens on the Court itself is practically minimized, which, on the one hand, allows to ensure the independence of this body, but, on the other hand, makes it disconnected from the real social needs and from the real consensus that takes place in societies. And here I come to another objective trend of globalization that contributes to the actualization of the problem of constitutional identity, namely, the trend of expanding supranational regulation in the field of human rights protection and increasing activism of interstate judicial bodies. While recognizing the objective nature of this trend, I would like to once again draw attention to the fact that it is already dangerously at odds with the Westphalian system of international law, which places the principle of national sovereignty at the forefront. I have repeatedly said that the mindless destruction of the Westphalian system is the destruction of international law, which in the foreseeable future can be preserved primarily as the result of the LEADERS OF CONSTITUTIONAL REVIEW BODIES 145 agreement reached at the international level. In the context of the considered theme, I would like to note fist, that any norms of the international law, guaranteed by supranational structures, are left the product of consensus (consensus of wills) of the states. And the consensus of the states – is an ambiguous notion. With all the objectivity of the trend towards more supranational regulation of implementation of this trend in practice largely depends on what is meant by the consent of states, that underlies in international law. This also applies fully to international human rights law: it is the same result of the agreement of sovereign states on the content of human rights and the obligations to protect them. There is a common view in international law that international human rights law is customary law with an indefinite content that states once recognized as binding, and this recognition was “unconditional and eternal”. This leads to the possibility of expanding the content of such international legal norms as a result of their interpretation by supranational judicial bodies, and the impossibility for states to challenge these interpretations. But there is another view of the consent of states as the Foundation of international law, which implies that the basis of such consent of states is the consent of peoples who, in the spirit of social contract theories, recognize the need to limit the sovereignty of states and give binding constitutional force to international norms for the protection of human rights. This approach is more sensitive to the interpretations of international legal norms that are given by supranational (primarily judicial) bodies, since it involves the assessment of these interpretations from the standpoint of legal, primarily constitutional and legal, identity of peoples. This very approach becomes more and more demanded in the light of the mentioned challenges of the globalization. At least, there are some grounds to state that, that the large place in the doctrines, on which the bodies of the constitutional control base all over the world, is given to сonsiderations of the national constitutional identity. Obviously, on the majority of the cases the activity of the international judicial bodies, claimed to guarantee the observance of the international 146 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY agreements by the states-participants, do not call the contradictions and displeasure of the states. At the same time, as the researches note, the emergence of the institute of supra-national judicial control brought to one important consequence, which periodically brings to the conflicts of two systems, - the break of monopoly of national judicial bodies for the definition of the significance and role of the international law in the national legal system. This, in its turn, puts the highest national judicial bodies before the choice — to consider the national constitutional law order in the subordinate position in reference with the norms of the international law or not. The given question is not a plain choice between monistic and dualistic systems of the international law. The answer to this question is motivated by the national relation to the law, traditions and the role of the judicial constitutional control, which developed historically. At the same time, such a reply for the majority of the states is quite obvious – the national constitutional law in such a view, as it is interpreted by the constitutional court, has a priority over the national interpretation, but how such a conclusion is justified and how national judicial bodies come to it, having faced such a conflict —depends on each specific country and of each specific situation, making the existence of unified universal recipe, what nonetheless, doesn’t hinder the consideration of some general tendencies.

3.Inter-state bodies for the protection of human rights and evolutionary interpretation A significant influence on the actualization of the problem of national constitutional identity was exerted by the increasing activism of interstate judicial bodies for the protection of human rights, including through the law-making “evolutionary” interpretation of international (interstate) treaties and related conflicts with the interpretation of national constitutions in the decisions of constitutional courts and their analogues. Within the Council of Europe, this is also facilitated by certain doubts about the legal nature of the European consensus that usually underlies the decisions of the European Court of human rights. If we approach the assessment of consensus from the point of view of the liberal-democratic LEADERS OF CONSTITUTIONAL REVIEW BODIES 147 principles that form the philosophical basis of the European Convention for the protection of human rights and fundamental freedoms, does following the consensus mean exactly the imposition of the will of the majority on the minority, from which the Convention is intended to protect? After all, the Court itself has repeatedly stressed that in a democratic state it is necessary to ensure a balance between fair and proper treatment of minorities and to avoid any abuse of a dominant position. The European Convention on human rights and basic freedoms as an agreement of the sovereign state, comprising the Council of Europe, presents the combination in a highest degree abstract norms and principles, guaranteeing the fundamental private, political human rights. The European court on human rights, created as subsidiary interstate body for protection of these rights, what is officially confirmed (by Protocol № 15 to the Convention), is authorized to give the official interpretation of the Convention, which for the state-participants bears obligatory character. By means of the evolutionary interpretation of the Convention as “the alive instrument” ECHR makes concrete its positions, “broadens” their normative contents, accomplishes the incrementation of the legal material, and in fact — on the basis of the own interpretation of the conventional norms and principles -creates new legal norms. For example, ECHR for the long time did not acknowledge contradicting the Convention the national legislation, depriving the convicts of the right to elect and be elected at the general elections. But then in the resolutions made against the United Kingdom and Russia (in 2013), the Court ordered the need for a differentiated material approach. Obviously, the states that had expected at the time of signing the Convention that they would set the “rules of the game” themselves had miscalculated and failed to foresee the potential of the Court they had agreed to establish. To date, judicial activism, the practice of evolutionary interpretation of the Convention, the principle of consensus as it is understood by the ECHR-all this is already so ingrained in its activities that even the formal establishment in Additional Protocol No. 15 of the principle of subsidiarity of this Court is unlikely to be able to limit it. 148 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The creative evolutionary interpretation of international normative legal acts by the competent supranational judicial bodies, and the related possibility of a conflict between international acts in this interpretation and national normative legal acts, including constitutions, is a problem that can be truly a Pandora’s box. The problem of conflict of interpretation is aggravated by the fact that the ECHR takes a rather rigid position, according to which the Court does not distinguish between ordinary law and the Constitution (basic law) of the state when assessing national normative acts for their compliance with the norms of the Convention in their interpretation. Thus, the norms of the Constitution are placed in hierarchical subordination to the norms of the Convention in their “evolutionary” interpretation of the ECHR. While the constitutional courts in resolving conflicts with supranational judicial bodies are guided by the principles of the supremacy of the Constitution and its supreme legal force in the system of normative legal acts of the state, among them, to the relevant ratified international treaties. In each case, of course, the practical result of a corresponding interpretation, namely, how the conflict of interpretations by the constitutional and the interstate court is resolved is rather important.

4. Constitutional identity and interpretation of the Constitutional Court of the Russian Federation and European Court on human rights. The Constitutional Court of the Russian Federation in its recent resolutions formulated the legal positions, according to which the special attention of supra-national bodies to the basic elements of the constitutional identity , which constitute interstate norms about the fundamental rights, and the Constitutional Court of Russia, in its recent rulings, has formulated legal positions according to which the special attention of supranational bodies to the basic elements of constitutional identity that form the domestic norms on fundamental rights, as well as the norms guaranteeing these rights on the foundations of the constitutional system, will reduce the likelihood of conflict between national and supranational law. This will largely determine — while preserving the constitutional sovereignty of states-the effectiveness of the entire European system of protection of human and civil rights and freedoms LEADERS OF CONSTITUTIONAL REVIEW BODIES 149 and the further harmonization of the European legal space in this area. The court emphasizes that the interaction of the European Convention and the Russian constitutional law and order is impossible in terms of subordination. Only a dialogue between different legal systems can serve as the basis for their proper balance, and the European Court of human rights’ respect for the national constitutional identity of the states -parties to the Convention largely determines the effectiveness of its rules in the domestic legal order. In turn, the Constitutional Court, recognizing the fundamental importance of the European system for the protection of human and civil rights and freedoms, of which the ECHR rulings are an integral part, is ready to search for a legitimate compromise in order to maintain this system, but reserves the determination of the degree of its readiness for it, since the boundaries of compromise in this issue are outlined by the Constitution of the Russian Federation (rulings of July 14, 2015, No. 21-R, April 19, 2016, No. 12-R, January 19, 2017, No. 1-R, November 15, 2016, No. 24-R, January 19, 2017, No. 1-R and may 11, 2017, No.13-R). The principle of the constitutional identity was used in the resolution of the Constitutional Court of January 19, 2017 № 1-R in connection with the resolution of the question about the opportunity of the bringing to effect in accordance with the Constitution of the Resolution of ECHR of July 31, 2014 on “ACS UKOS oil company against Russia” case. In its Resolution ECHR considered that this company was brought to account for the tax legislation infringement exceeding three years limitation period, thus the rights of the company claimant, guaranteed by the article 1 Protocol 1 of the Convention, were violated. Meanwhile, the Constitutional Court came to the conclusion, that in the case of deliberate obstructing by the taxpayer the tax control and conducting the tax audit the court may recognize valid reasons for missing by the tax authority the statute of limitations to tax liability (in the case of Ukos it has been exceeded for three months) and to recover from the taxpayer tax penalties for offences committed over a three-year period, which extended a tax audit. In making this decision, the Constitutional Court relied on the following legal positions: 150 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

- the principles of legal equality and justice expressed in articles 17 (part 3), 19 (part 1 and 2) and 55 (part 3) of the Constitution and the principle of proportionality arising from them make it necessary to ensure the same amount of legal guarantees to all taxpayers; with regard to the operation of the statute of limitations on bringing to account for committing tax offenses in a circle of persons, these principles suggest the need for a differentiated approach to taxpayers who, in opposition to tax control and tax audit, use the statute of limitations contrary to its purpose, to the detriment of the rights of other taxpayers and legitimate public interests; - if in case of counteraction of the taxpayer to implementation of tax control and carrying out tax audit tax sanctions could not be imposed for the sole reason of the expiration of the three-year limitation period provided by article 113 of the Tax code of the Russian Federation, besides that its interruption or suspension is not allowed, then contrary to the purpose of this norm there would be a possibility of abuse of the right not to be brought to tax responsibility beyond this term; - the taxpayer, who did not provide the documents in a due time and counteracted the conducting of audit and to whom this norm on the statute of limitation to attraction to tax account was applied solely according to its literal meaning, would acquire illegal advantage over the taxpayer, who committed the same offence but did not obstruct the tax audit and was brought to responsibility according to limitation period; as a result, bringing to legal responsibility would violate the constitutional principles of equality and justice and the resulting principles of proportionality and inevitability of responsibility for tax offenses, as well as the principle of taxpayer integrity as one of the most important elements of the constitutional regime of tax relations and the constitutional foundations of public law and order in whole. The Constitutional Court of the Russian Federation also relied on the principle of constitutional identity in its Decision No. 12-R of April 19, 2016 in connection with the question of the possibility of executing the decision of the European Court of human rights of July 4, 2013 in the case “Anchugov and Gladkov V. Russia”. This case, concerning the electoral rights of prisoners, was initiated in the ECHR by two Russian citizens, each of whom was serving LEADERS OF CONSTITUTIONAL REVIEW BODIES 151 a sentence for murder and a number of other crimes. At the time, the Constitutional Court of the Russian Federation refused to accept the relevant complaint for consideration on the basis that checking certain provisions of the Constitution of the Russian Federation (in this case, the norms of part 3 of article 32) for their compliance with other provisions of the Constitution is not within the powers of the Constitutional Court. And the European Court, where the applicants then applied, found that there had been a violation of the right to participate in elections guaranteed by article 3 of Protocol No. 1 to the Convention for the protection of human rights and fundamental freedoms. ECHR came to the conclusion, that set by p.3 article 32 of the Constitution of Russian Federation ban to participate in the elections for the individuals, who are held in the places of detention on the court sentences, restricts the electoral rights of this category of citizens, violates the guaranteed by article 3 Protocol No. 1 to the Convention subjective right to participate in elections. Based on the principle of constitutional identity, Constitutional Court decided to accept performance in accordance with the Constitution of the Russian Federation decision of the ECHR in the case “Anchugov and Gladkov V. Russia”, adopted on the basis of the provisions of article 3 “Right to free elections” of Protocol No. 1 to the Convention for the protection of human rights and fundamental freedoms in their interpretation by the European Court of human rights, in the following aspects: “[1] - in terms of general measures that involve changes in Russian legislation (and thus change the judicial practice based on it), which would allow to restrict the voting rights of not all convicts who are serving their sentence in prison on a court sentence, — impossible, since the requirement of article 32 (part 3) of the Constitution of the Russian Federation, which has the supremacy and supreme legal force in the Russian legal system, clearly means an imperative ban, according to which all convicted persons serving their sentences in places of deprivation of liberty defined by criminal law do not have voting rights without any exceptions. [2] - in terms of general measures that ensure fairness, proportionality and differentiation of the application of restrictions on electoral rights-possible and 152 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY implemented in Russian legislation and judicial practice, since in accordance with part 3 of article 32 of the Constitution of Russia and specifying its provisions in the Criminal code of the Russian Federation, as a general rule, eliminates the penalty of deprivation of liberty and thus the disenfranchisement of convicts who committed for the first time, minor offenses, and for crimes of medium gravity and serious crimes imprisonment, as a more strict kind of punishment from among provided for in the special part of this Code for the commission of the crime, judicial sentence, and therefore entails the loss of voting rights only in the case, if less strict kind of punishment cannot provide achievement of the purposes of punishment.” At the same time, the Constitutional Court of the Russian Federation noted that, guided by the Constitution of the Russian Federation, including its article 32 (part 3), and the legal positions of the Constitutional Court expressed in this decision, the Federal legislator is entitled, consistently implementing the principle of humanism in criminal law, to optimize the system of criminal penalties, among them transferring certain regimes of serving the sentences to alternative types of punishment, though connected with the compulsory restriction of freedom, but not resulting in restriction of their electoral rights. By this the Constitutional Council of RF noted, that as it follows of the resolutions on “Scopolla v. Italy” case (№ 3) (p. 106, 108 и 110) and «Anchugov and Gladkov v. Russia» (p. 100), crimes, for commitment of which the punishment on the limitation of liberty for the term of three years and more, are recognized by ECHR “sufficiently serious” for serving the reason- without violation of the requirement of proportionality - for deprivation of the persons guilty of their Commission of electoral rights by virtue of direct instructions of the law (and not only during serving of punishment, but also within two years after release); the person sentenced to imprisonment for a term of five years or more, by a court decision can be deprived of electoral rights for life. It was emphasized that the task of the ECHR was not to control in abstracto compatibility with the Convention on the protection of human rights and fundamental freedoms, part 3 of article 32 of the Russian Constitution, but to determine in concreto the consequences of its application for the rights LEADERS OF CONSTITUTIONAL REVIEW BODIES 153 of applicants guaranteed by article 3 of Protocol No. 1 to the Convention (paragraph 52). Coming out of the set by ECHR standards, the deprivation of the electoral rights for the serious crimes (crimes, the punishment for which is the imprisonment for the term of three years and more) cannot be considered as the violation of the principle of proportionality. Citizens S.B. Anchugov and V.M. Gladkov were sentenced (as a substitute for the death penalty) to fifteen years of imprisonment for committing particularly serious crimes and in this regard were deprived of voting rights, so they can not be considered victims of an offense, and their rights guaranteed by article 3 of Protocol No. 1 to the Convention-violated. Consequently, in this sense, the ECHR’s ruling in the case of Anchugov and Gladkov V. Russia is essentially an act of abstract norm control (in abstracto). In the decision under consideration, the ECHR draws attention to the fact that the Court did not take into account the fact that the applicants challenged not just a rule of law (which in itself meant the need for the state to take general measures), but a norm of the country’s Constitution. Yes, and such a rule, which can be changed only as a result of the adoption of a new Constitution. In this regard, the ECHR ruling only noted that the respondent state can achieve compliance with the Convention “through some form of political process or interpretation of the Russian Constitution...”. Thus, Russia was asked either to adopt the new Constitution as part of the appropriate “form of political process”, or to give a very free interpretation of its text. Concerning the adoption of the new Constitution, this idea for many years doesn’t come off the agenda for the representatives of the various flanks of the political opposition. And it is quite obvious, that the realization of this idea (even if the both chambers of the parliament would not agree with it, as the constitutional procedure requires) it would become a strong factor of destabilization of the social-political situation in the country. And in addition (and this is no less important), the fundamental (and it must be admitted — painful for national consciousness) question of the correlation of the legal force of the Russian Constitution and the European Convention was touched upon here. For this 154 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY reason, as I mentioned, the Constitutional Court expressed in the Decree of July 14, 2015, recognizing that the European Convention in its interpretation of the ECHR has greater legal force than a Federal law, but not equal to or greater than the legal validity of the Constitution. The second proposal of the ECHR is to solve the problem by interpreting part 3 of article 32 of the Constitution-also did not take into account a number of important circumstances. The fact is that the views on the evolutionary interpretation held by the national bodies of constitutional control, on the one hand, and the ECHR as a body of supranational justice, on the other, have significant differences. These differences are due to the different nature of the acts interpreted by the European Court of Justice and the Constitutional Court, respectively. The ECHR sees its role not only and not so much in the interpretation of the content of the rights protected by the European Convention (formulated, as we know, in the most general form), but in the creation of a new unified European legal order. And national constitutional justice is more closely linked to the text of the national Constitution and the need to follow not only its spirit, but also the letter. In so doing, the Constitution can not be understood exclusively as the normative text. This is first of all, historically formed and developing axiological set of principles and norms, characteristic to the specific society at the given stage of its development and shared by the majority of its members. That means the outcome of the historically caused consensus. And in our case – of the consensus, reached as I have already said, under complicated conditions. And on the side of the Constitutional Court it was rather inconsiderate to doubt those results of the “social agreement” which is expressed in sufficiently precise normative form. This is how part 3 of article 32 of the Constitution of the Russian Federation is formulated, which says: “citizens do not have the right to elect and be elected ...held in places of deprivation of liberty by a court sentence”. In addition, the Russian Constitution, in contrast to the European Convention — is a much more detailed document, the provisions of which constitute a single internally agreed regulatory system. All this together means that the limits of legal activism of the national body of constitutional control are not as wide as those of its supranational vis-a-vis. LEADERS OF CONSTITUTIONAL REVIEW BODIES 155

Therefore, in its ruling, upon request of the Ministry of justice, we felt it necessary to reiterate the point expressed earlier (in the order of 14 July 2015) legal position, according to which a number of articles of the Constitution of the Russian Federation (p. 1 and 2 of art. 4, p. 1 and 4 of art. 15, art. 79 and p. “g” of p.2 and p. 6, art. 125) that reinforce Russia’s sovereignty, the supremacy and the Supreme legal force of the Constitution in the Russian legal system (including in relation to international treaties), Russia has no right to conclude international treaties, not corresponding to the Constitution. In addition, we noted the fact that in 1996 Russia signed and in 1998 ratified the Convention on the protection of human rights and fundamental freedoms on the basis that article 32 (part 3) of the Constitution of the Russian Federation is fully consistent with the requirements of article 3 of Protocol No.1 to the Convention and does not need any amendments. This is how part 3 of article 32 of the Constitution of Russian Federation is formulated, which says: “citizens do not have the right to elect and be elected ...held in places of deprivation of liberty by a court sentence”. Moreover, the Russian Constitution, in contrast to the European Convention — is a much more detailed document, the provisions of which constitute a single internally agreed regulatory system. All this together means that the limits of legal activism of the national body of constitutional control are not as wide as those of its supranational vis-a-vis. The Council of Europe had no questions, connected with the possible contradictions between them. In other words, Russia and the Council of Europe recognized that the corresponding articles of the Convention and Constitution of the Russian Federation are in complete compliance with each other. From this moment of time and up to present the specified norms haven’t been changed textually. In this connection, the Constitutional Court stated, that the conclusion of the ECHR on the violation by Russian Federation of the art.3 of the Protocol № 1 to the Convention, is based on the interpretation of its positions, differing to that meaning, from which the Council of Europe and Russia for the moment of its signing and ratification. Under this circumstances Russia has the right to insist on the interpretation of the art.3 of the Protocol №1 to the Convention and its implementation in Russian legal space in 156 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY that understanding, which had place while introducing this international agreement as the constituent part of the Russian legal system. Nonetheless the Constitutional Court found its opportunity for implementation of the basic requirement of ECHR on differentiation of those restricting measures in the part of the electoral rights, which are foreseen by the Constitution of RF for individuals, being held in the detention places. First of all, we payed attention at the fact that the semantic filling of the term “deprivation of liberty” in Russian legal system differs from the corresponding sense in European Convention. The Russian legal system under “deprivation of liberty” implies not any deprivation of liberty, connected with isolation from the society, including, for example, arrest and freedom limitation (as un p.1 art.5 of the Convention) but the specific type of punishment, involving the isolation of the convict of the society by sending him to a colony-settlement, to an educational colony, a medical correctional institution, a correctional colony of general, strict or special regime, or to a prison. And this in itself means a much greater differentiation in the issue of special restrictions on electoral rights than that which follows from the interpretation of the concept of “deprivation of liberty” contained in part 1 of article 5 of the Convention. While this understanding of the term is not given in the Constitution itself, and in specifying its Criminal code, because the definition of what constitutes a deprivation of liberty as a form of criminal punishment and how is it different from other types of criminal punishment associated with the restriction of freedom, as well as other measures related to detention, but are not criminal penalties, as well as the definition itself of prison and punishment is the prerogative of the Federal legislator by virtue of article 71 (p. “o”) of the Constitution. This fact gives us the opportunity, without affecting the text of the Constitution, to make appropriate changes to the legislation, thus narrowing the concept of “places of deprivation of liberty”, which in the text of the Constitution is linked to the need for special restrictions on the electoral rights of citizens who are in prison. This is what we have proposed to the legislator, calling on him to optimize the system of criminal penalties by transferring certain regimes of imprisonment to alternative types of punishment associated with such a restriction of the LEADERS OF CONSTITUTIONAL REVIEW BODIES 157 freedom of convicts, which does not entail restrictions on their voting rights. And the fact that such differentiation is given by law, and not by a court decision, does not change the legal essence of the case. Which, by the way, the ECHR agrees with. However, in the context of the topic under discussion, I would like first of all to draw attention to another part of our Decision of 19 April 2016, which notes that, while recognizing the objective need for the ECHR to identify the structural shortcomings of national legal systems, we expect the European Court to adhere more consistently to the principle of subsidiarity. We expect that we will not be put before the fact of the European consensus reached behind our back. While generally agreeing with this form of legitimation of the ECHR’s decisions, we proceed from the fact that the European consensus is an informal agreement that is reached with our direct participation and which takes into account the peculiarities of Russia’s historical development and the objective difficulties it faces on its way to law and democracy. Effective interaction of the European and constitutional legal order is impossible in the conditions of subordination. Only dialogue and cooperation between different legal systems are the basis for their proper coherence and balance. The constitutional Court is ready to continue to act in a spirit of cooperation and dialogue with the ECHR in order to strengthen the domestic and international judicial protection of human and civil rights and freedoms.

* * *

In conclusion, I would like to note the following. The doctrine of constitutional identity, on which we all have much work to do, can serve as a” watershed “ that has the potential to separate acceptable and sometimes desirable changes in the internal constitutional order, inspired, for example, by a supranational human rights body, from those principles, which can not be given up by he states, that have recognized the mandatory jurisdiction of such bodies. It does not follow from this doctrine that every fact of inconsistency between the norms of international law and national legal institutions is an attempt 158 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY on constitutional identity. Particularly important legal principles that form the backbone of the national legal order need to be protected. Obviously, not all legal traditions are included in this core. Therefore, we need a methodology for recognizing “nuclear” legal traditions, the destruction of which means the loss of identity based on the rule of law, and those legal traditions or prejudices, stereotypes of public consciousness, which are an example of legal inertia or even anachronism. Constitutional identity is crystallized by each state from its unique individual experience. It cannot be “invented” or changed by any volitional decision, nor can it be imposed from the outside. Identity is contained in the totality of historical, cultural and social factors, refracted in law. Such an identity is not a frozen state, but a dialogic process, which is a collection of beliefs and ideas from the historical past of each country, which are reinterpreted in each new era. It can be revealed, and the best means of doing so is constitutional justice. LEADERS OF CONSTITUTIONAL REVIEW BODIES 159

Petr MIKLASHEVICH Chairman of the Constitutional Court of the Republic of Belarus, Honored Lawyer of the Republic of Belarus AFFIRMATION OF MODERN CONSTITUTIONALISM

owadays, the process of modernization and transformation in constitutional and legal development is characteristic of social processes in many countries of the world. As the Latin proverb goes, “times change, and we change with them”. NThe high dynamics of constitutional development is an objective reflection of acceleration and complication of social interaction. At the same time, both constitutional reforms and modernization, and evolutionary constitutional development are characterised by a “constitutional dimension” of social processes. Despite the diversity of forms of organisation and activities of State institutions, different paradigms of relationship-building 160 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY in the “man – society – state” system, the search is carried out precisely within the framework of the functioning of the constitutional model of society and the state on the principles of constitutionalism. It seems that this is one of the significant achievements of state and legal development in the 21st century, which entails, along with other institutional changes, generation of a new understanding of the content of constitutions, awareness of the increasing role of the constitution in social processes.

1. Problems of modern constitutionalism At the present stage, constitutionalism in the legal policy of states has become a general system of ideas, which presupposes a model of organisation of the state and society on a constitutional basis, legally saturated large-scale constructions of state sovereignty, government by the people, state based on the rule of law, democracy, separation of powers, human rights and freedoms. The openness of national economies, the transition to a new technological order of development of the global economic environment and the global digital reality management system in various fields lead to changes in the foundations of today’s world order. Modern legal regulation is undergoing significant changes due to the changed “architecture” of the world social space, the profound transformation of social relations. The digital society is becoming decentralised. The system of multi-level “flexible” law begins to prevail in the legal regulation of social processes, and this law is adapted to the global network interaction of modern society. Technological changes have become a constant. Social processes that are traditionally “governed” by law are becoming transnational, going beyond the state boundaries and national law. This combination of factors represents a challenge to modern constitutionalism, which, as a stable doctrine of the state legal system, has not yet fully “sounded” at the national level, and now one of the main tendencies of constitutional development is “the emergence of the phenomenon of global constitutionalism changing spatial limits of the constitution, enhancing international intervention in constitutional design and LEADERS OF CONSTITUTIONAL REVIEW BODIES 161 shaping universal constitutional standards”269; the formation of “corporate constitutionalism” in the context of multi-billion transnational and global corporations270, etc. The question arose whether, without prejudice to the essence of the ideas of constitutionalism, it is possible to “multiply” at the supranational and global levels, by analogy with the European “multi-level constitutionalism”, the construction that is developed within the framework of the state and its national institutions, primarily the constitutional courts. Today, the doctrine of constitutionalism has been built as a system of ideas that absorbed the achievements of modern civilisation by the 21st century, as constitutional values ​​and ideals accumulated by mankind. “Within the framework of modern constitutionalism, all three principles – the rule of law, democracy and human rights – are thought as absolutely necessary”271. However, it should not be forgotten that the basis of this system is the constitution of a given state, and it is within the state that all the tools and mechanisms are concentrated for the protection of the constitution and the implementation of its provisions in all spheres of state and social activities. According to Susanne Baer, Judge at the Federal Constitutional Court of Germany, “constitutionalism names the global understanding of the way to ensure that government works for the people, empowered by the people, with independent courts to ensure fair proceedings”272. In the European constitutional and legal space, modern constitutionalism represents a complex multidimensional phenomenon; the idea of ​​multi-level constitutionalism has been put forward, which is characterised by the fact that the constitutional monism of the nation States is complemented by a

269 Umnova-Konyukhova I.A. The 1993 Constitution of the Russian Federation: The Constitutional Ideal Evaluation and its Implementation in Light of International Experience // Lex russica. – 2018. – № 11. – P. 23–39. 270 Crisis of Law: History and Modernity / under the general editorship of V.V. Denisenko, M.A. Bely- aev, E.N. Tonkov. – Saint Petersburg: Aletheia, 2018. – 514 p.; Dobrynin Nikolay M. Contemporary notion of constitutionalism in Russia: ontological consonance or frustration dissonance of legal pic- ture of social existence? // Constitutional and Municipal Law. – 2017. – № 9. – P. 8–12. 271 Mrozek A., Sledzinska-Simon A. On the legitimacy of constitutional courts and the rule of law in a comparative view on the Polish constitutional crisis // Comparative Constitutional Review. – 2017. – № 1. – P. 64–79. 272 Baer S. Challenges to Constitutionalism: The Role of Constitutional Courts // 16th meeting of the Joint Council on Constitutional Justice / Mini-Conference on “Courageous Courts: Security, Xenopho- bia and Fundamental Rights” // Venice Commission of Council of Europe // URL: https://www.venice. coe.int/webforms/documents/default.aspx?pdffile=CDL-JU(2017)002-e. – Date of access: 06.01.2019. 162 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY supranational and then a global “dimension”273. At the same time, I believe that the constitutional values enshrined​​ in national constitutions are the core that “binds” various levels of constitutionalism, in different regions of the world. Stable constitutional values, generally recognised in the light of modern constitutional development, constitute the “framework” of any legal system and constitute the ideological “core” of modern constitutionalism.

2. Constitutional values and constitutional identity The multi-dimensional and multi-level modern constitutionalism, which has gone beyond a sovereign state, acts as a global factor in the formation of a modern constitutional and legal worldview. Therefore, today the vector of sustainable constitutional development is predetermined by the adequacy of the content of national constitutions to modern challenges. It seems that the leading trend of modern constitutionalism is the development of the value content of national constitutions, which is possible in the most explicit way in a particular state with its stable domestic constitutional and legal tradition and the established system of value paradigms. In this way, the foundations of the constitutional identity of the state are formed by preserving the priorities of the political and legal heritage and the historical and cultural path of the state in the process of its constitutional development. The First President of the Republic of Kazakhstan Nursultan Nazarbayev in his article “Seven Facets of the Great Steppe” notes that “space is the measure of all things, time is the measure of all events; when the horizons of space and time merge, national history begins”274. Constitutional values ​​are determined by the historical development of social processes, based both on national ideas, moral and spiritual ideals, and universal values. Within the framework of the concept of constitutional identity, both general civilisational values ​​and national features of the

273 Tanchev E. Constitutional Court Functions in Protecting the Democratic Constitutional Order // Bulletin of the Constitutional Court of the Republic of Belarus. – 2012. – № 1. – P. 108–121; Tanchev E. Constitutional Pluralism and Multi-Level Governance in the European Union // Journal of Foreign Legislation and Comparative Law. – 2014. – № 6. – P. 1052–1062. 274 Nazarbayev N. Seven Facets of the Great Steppe // Official site of the President of the Republic of Kazakhstan // URL: http://www.akorda.kz/ru/events/statya-glavy-gosudarstva-sem-granei-velikoi- stepi. – Date of access: 8.01.2019. LEADERS OF CONSTITUTIONAL REVIEW BODIES 163 development of society and the state play a certain role in strengthening statehood and democracy. In the process of historical development of society and the state and self-determination of the nation, values ​​are formed and developed, and, as a rule, these values are enshrined in the Constitution. Constitutional values are in a certain relationship and interdependence. Thus, it is obvious that human rights and freedoms can be fully ensured and exercised only in a truly democratic social state based on the rule of law, and a state based on the rule of law cannot be one without the real rule of law principle. When interpreting the constitutional values ​​and filling these axiological structures with formal and legal content, it is necessary to pay attention to the fact that their content does not remain unchanged. The development of society and the state, convergence of national legal systems, understanding of new conceptual approaches to human rights naturally entail an “increment” of the meaning content of the constitutional values, making them more multifaceted. The most important role in this process is played by the constitutional review bodies, since it is thanks to their activities that the content of constitutional provisions acquires certainty and accuracy. Current globalisation processes make society more vulnerable, impose new demands on it, make it necessary to ensure justice, preservation of consent in society, its stable development. Objectively, for these purposes, the rights and freedoms of a person and a citizen should determine the content and proper application of normative legal acts, and the state should provide an effective mechanism for their implementation. The practice of constitutional review takes into account that human rights and freedoms, on the one hand, are absolute, but on the other, they are not, which implies the possibility of a certain restriction, but a fair balance between the interests of the individual and the interests of society and the state must be strictly observed. Today, the approach to find a balance of values, goals and interests only in the relationship “person – society” seems simplified. Modern society is heterogeneous; it represents the interaction of many social groups in which an individual is “included” with different, sometimes mutually exclusive, 164 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY goals and interests. A fair balance of constitutional values should​​ lead to maintaining the balance of society, its stability, effective interaction of all social forces on the basis of the constitutional priority – the individual as the highest value and goal of society and the state.

3. The role of constitutional courts in strengthening constitutionalism At present, it is important to find a balance between the ever-changing social relations and the constant public need for security and stability. The state, acting as a social tool to ensure the security and integrity of society, balance the interests of social groups, coordination of social interaction, achieves these goals through constitutional and legal mechanisms. In constitutional and legal development of states, constitutional courts have emerged as an institutional form of legal protection of the Constitution, and the role of the “guardian” of the Constitution still remains a priority for them. The constitutional review, exercised by the bodies of constitutional justice and equal jurisdiction, has now become an integral element of national statehood. At the same time, the transformations of the political and legal systems of states are characteristic of the constitutional development of the 21st century, which naturally leads to the search for the most effective forms of constitutional review, their optimal combination and their compliance with modern challenges. It was noted in one of the presentations during the XVI Congress of the Conference of European Constitutional Courts that “it is the task of constitutional courts to give effect to the fundamental determinations laid down in the Constitution … and to make sure that they (can) effectively shape the political, social and economic reality of a society constituted within a state”275. The development and improvement of national legislation under the influence of decisions of constitutional courts should be attributed to one of the most distinct trends in modern constitutional justice.

275 Huber P. Presentation at the Second session of the XVI Congress of the Conference of European Constitutional Courts “Constitutional Courts between Constitutional Law and European Law” (Vi- enna, 2014) // XVI Congress of the Conference of European Constitutional Courts. URL: https://www. vfgh.gv.at/cms/vfgh-kongress/ru/xvi-kongress-2014/organisation.html. – Date of access: 08.01.2019. LEADERS OF CONSTITUTIONAL REVIEW BODIES 165

This is conditioned by the importance of the matters on which constitutional courts make decisions, resolving significant problems in the legal system or constitutional conflicts, by particular legal consequences of their decisions, and in general by the purpose of the institution of constitutional review in the state system. One has to agree with Valery Zorkin that “in the legal system, there is less and less obvious unconstitutionality”276. The constitutional courts, in addition to identifying unconstitutionality in the exercise of concrete review of constitutionality of norms in the form of a constitutional complaint, preliminary request, application for a priority preliminary ruling on the issue of constitutionality, seek to contribute to the overall development of legislation and law enforcement practice in the constitutional and legal framework. The ultimate goals of the constitutionalisation of law are transformation of constitutional provisions as regulatory and legal provisions having a high degree of legal generalisation and abstraction into specific norms of legislative acts, and ensuring a multi-level, universal mechanism of constitutional and legal regulation. The search, including by means of constitutional justice, of a mechanism for the interaction of national, supranational and international law should be mentioned as another modern trend in constitutional justice. In recent years, this issue has been the focus not only of articles by leading Russian and European constitutionalists, but also of congresses of the Conference of European Constitutional Courts, in particular the XVI Congress “The Co-operation of Constitutional Courts in Europe – Current Situation and Perspectives” (, 2014), one of the sub-topics of which was “Constitutional Courts between Constitutional Law and European Law”, and the upcoming XVIII Congress that will address the topic “Human Rights and Fundamental Freedoms: The Relationship of International, Transnational and National Catalogues in the 21st Century” (Czech Republic, 2020). This is explained by the internationalisation of national law, expansion of global legal regulation, formation of transnational branches of law, rapid development of supranational law, which modifies the legal systems of states

276 Zorkin V. The Constitution of the Russian Federation – the legal basis the integration of Russian society. – Journal of Constitutional Justice. – 2018. – № 6. – P. 1–11. 166 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY both on the European continent and in the post-Soviet space. The development of integration law of the Eurasian Economic Union requires Member States to have coordinated approaches in integration processes, as well as in constitutional and legal development in general. The active participation of our states, Belarus and Kazakhstan, in the integration processes in the post- Soviet space poses new challenges for the constitutional review bodies. The role of constitutional courts and bodies of equal jurisdiction in this process is aimed at developing a clear procedure and conditions for the fulfillment of international legal obligations assumed by the state within the domestic legal space. In the modern world, despite the fact that the concept of state sovereignty remains the cornerstone of the functioning of any state, the sphere of legal regulation, including international law, acts of interstate integration formations, is constantly expanding. Often, the promotion of national interests, including for economically beneficial purposes, is possible only by joint efforts of states. We see how regionalisation gives possibility to states to increase their foreign policy- related influence and fulfil their economic interests. At the same time,it is necessary to take into account the ongoing process of opposition from sovereign states to the system of global management of information and communication space, that is, upholding digital sovereignty. Under these conditions, strengthening the foundations of a sovereign state is impossible without ensuring its constitutional security.

Conclusion The constitutional goal of the formation of a modern state based on the rule of law determines the vector of functioning of the entire state mechanism, the strategy for the development of society. This fully applies both to Belarus and Kazakhstan, which is the key to prosperity and peace in our countries. The Republic of Kazakhstan and the Republic of Belarus continue to pursue the path towards evolutionary constitutional development, formation of a democratic social state based on the rule of law. LEADERS OF CONSTITUTIONAL REVIEW BODIES 167

In this process, the Constitutional Council of the Republic of Kazakhstan and the Constitutional Court of the Republic of Belarus will continue to protect the fundamental constitutional values ​​in order to uphold modern constitutionalism. 168 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Tamás SULYOK Gergely DELI Chairman Senior advisor of the Constitutional Court of the Constitutional Court of the Republic of Hungary of the Republic of Hungary

SOVEREIGNTY IN THE JURISDICTION OF THE HUNGARIAN CONSTITUTIONAL COURT

1. Introduction n our short paper we introduce a new interpretation of sovereignty, which is a response to the challenges of globalization. We also show how the Hungarian Constitutional Court has applied this new concept in its jurisdiction. IOur new ideal of sovereignty can be seen as a concept that expresses the democratic basis of the legal order in such a way that at the same time it is does not exclude plurality and constitutionalism. What we can undoubtedly experience these days is that the significance of sovereignty is changing in the context of globalisation. Even so, the ideal LEADERS OF CONSTITUTIONAL REVIEW BODIES 169 of sovereignty has not become irrelevant or obsolete, because it symbolizes the right of political self-determination of a community as well as the capacity to transfer some of its regulatory competence to a supranational legal order. In the first section, we describe a prominent critique of the concept of sovereignty: Hannah Arendt’s famous interpretation of sovereignty. In the second part we introduce a new interpretation of sovereignty, which is built upon the legitimacy of a democratic legal order. Finally, we will show how the Hungarian Constitutional Court has developed this new concept in its practice and have a closer look at three landmark cases.

2. The critique of sovereignty Most scholars will probably agree if we say that the concept of sovereignty is still an intriguing issue, subject to permanent debate, and considered by many as an obsolete ideal. In „What is freedom?” Hannah Arendt gives a very concise and excellent summary of this type of criticism pointing out that „the famous sovereignty of political bodies has always been an illusion, which, moreover, can be maintained only by the instruments of violence […]. Under human condition, […] freedom and sovereignty [...] cannot even exist simultaneously. […] If men wish to be free, it is precisely sovereignty they must renounce.”277 For Arendt and many scholars, both absolutism and its degeneration into tyranny are rooted in the concept of an absolute and unbounded sovereignty. Let us explain in a few words the reasons behind this approach. Arendt argued that sovereignty represented a so-called general will, a vague and mystified notion which can be easily manipulated and abused by the majority. For this reason, justifying any action by reference to sovereignty may serve as an excuse for uncontrolled political power, that is, for tyranny and dictatorship. Much of today’s intellectual antipathy against the concept of sovereignty draws upon Arendt’s concept because of its potential irreconcilability with freedom.

277 Hannah Arendt: Between Past and Future, New York: Penguin 2006, 163. 17 0 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

3. Alternative concept of sovereignty Admittedly, this critique has its own merits, but we definitely regard it as a simplification. The question is whether we can come up with a new answer and look at the problem from a different angle. We believe that the notion of sovereignty must be examined in a historical perspective so that we can understand the origin of this concept. The ideal of sovereignty was created as a concept which contributed to the political neutralisation of bloody religious conflicts between Catholics and Protestants. When the citizens were divided by sectarian violence, there was no longer any consensus on the meaning of the fundamental principles of justice. It was evident that any reference to divine power lost its appeal and supremacy. The new basis of human power became defined by Bodin as “commandement du souverain”278 instead of divine will. The following question arises: Does this imply that the sovereign has unrestricted, uncontrolled power? The answer is unequivocally, NO! Our understanding of the function of sovereignty is based on a concept which does not allow the exercise of unbridled and repressive political power. Within the new conceptual framework sovereignty will enable people to achieve freedom by exercising a democratic control through a pacified and democratic legal system. The Hungarian Constitutional Court has embraced this concept of sovereignty which prevails in its practice and jurisdiction.

4. Notion of sovereignty in the jurisdiction of the Hungarian Constitutional Court (HCC) Our position on sovereignty was first formulated in decision No. 22/2016., in which the HCC provided an abstract interpretation of an article of the Fundamental Law concerning the EU membership of Hungary. The HCC declared that „respecting and safeguarding the sovereignty of Hungary and its constitutional identity is a must for everybody […], and, […] the principal organ for the protection is the Constitutional Court”.

278 See Jean-François Courtine: Nature et empire de la loi. Études suaréziennes, Vrin, 1999, 33-34 LEADERS OF CONSTITUTIONAL REVIEW BODIES 171

In the following we explain the underlying reasoning of the Constitutional Court to clarify the meaning of this principle. The HCC interpreted sovereignty as «popular sovereignty» or the sovereignty of the people, which means that legal regulations applying to everyone must be adopted by means of democratic processes. The HCC also intended to put a hold on the so-called „stalking integration” and thus prevent certain EU bodies from expropriating certain competences. The HCC stressed that EU accession does not mean giving up sovereignty, only the joint exercising of certain competences. The „principle of maintained sovereignty” means that when the joint exercising of further competences - beyond those already laid down in the Treaties - is at issue, the maintenance of Hungary’s sovereignty must be presumed. Sovereignty itself should be regarded as the source of competences and not as a competence itself. As such it cannot be transferred. Consequently, Hungarian people must have the opportunity to exercise control over any political power whether national or supranational, in other words, people cannot be deprived of such possibility.

5. The notion of sovereignty in the UPC Agreement (No. 9/2018) This HCC decision dealt with the problems related to Hungary’s accession to the Unified Patent Court. The main question was whether the accession violated Hungary’s sovereignty and whether there existed a proper constitutional legal framework for the accession. The HCC had to determine first whether the UPC Agreement qualified as an agreement subject to international law or EU law. The HCC concluded that the sovereignty transfer under Article E) paragraph (2) of the Fundamental Law is separated from international law and it requires distinct handling due to the sui generis nature of Union law. The HCC also argued that in this case the presumption of maintained sovereignty requires restrictive interpretation: as long as an international agreement has not become part of acquis communautaire, it must be examined whether Article Q) (article for international treaties) or Article E) (EU-article) of the Fundamental Law provides the constitutional legal basis for it. 172 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Furthermore, the HCC pointed out that the concept of sovereignty can be interpreted in the context of internal relations (supreme power within the state) and of external, international relations (sovereign equality with other states). The HCC concluded that the international treaty belongs to the external side of sovereignty, but the subject matter of the regulation belongs to the internal side of sovereignty. The internal side of sovereignty means that the State will develop its constitutional architecture and its legal system without any interference by the supreme power of any other state. The HCC was of the opinion that the ratification of the UPC Agreement could not take place unless the Fundamental Law was amended to provide the legal ground for the ratification.

6. The notion of sovereignty in the case on refugees (No. 1416/2018) In the third case the HCC interpreted a new provision of the Fundamental Law which stipulated that refugees arriving from safe third countries are not entitled to be granted refugee status as an individual right. According to the European Commission this provision was incompatible with EU law and Hungary’s international commitments. The HCC tried to preserve the integrity of the Fundamental Law and, at the same time, interpreted the contested provision in line with EU-law and the international treaties. The HCC held that the joint exercising of competences is allowed by the Fundamental Law through the constitutional self-restraint of Hungary’s sovereignty, but on the other hand, the limitations set by the Fundamental Law must also be respected. The relevant article of the Fundamental Law on refugees coming through „safe” third countries should be interpreted from the internal side of sovereignty. The right to asylum derives from international treaties, in which the signatories – by imposing external restrictions on their own sovereignty – committed themselves to helping refugees. This also means that due to its internal sovereignty, the Hungarian state is obliged to establish the procedural and substantive law regulations for processing and examining asylum claims within the limits of the international treaties. LEADERS OF CONSTITUTIONAL REVIEW BODIES 173

7. Summary Finally, let us summarize the main points. We have reached the following conclusions on the basis of the analysis of the notion of sovereignty and the jurisdiction of the HCC: We can regard the people as the ultimate source of public power, which means that sovereignty is vested in the people, and safeguarding the sovereignty of Hungary is a must for everybody. We also agreed that Hungary’s sovereignty should be presumed against ultra vires acts of the EU (the principle of maintained sovereignty), and the principal organ for the protection is the Constitutional Court. We have seen that the concept of sovereignty can be interpreted in the context of internal relations (supreme power within the state) and of external, international relations (sovereign equality among the states). And finally, the concept of sovereignty symbolizes the right of political self- determination of a community as well as the capacity to transfer some of its regulatory competence to a supra-national legal order. 174 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Namseok YOO President of the Constitutional Court of the Republic of Korea, Master of Law from the National University of Seoul CONSTITUTIONAL ADJUDICATORY INSTITUTION’S INFLUENCE OVER INTERPRETATION AND REALIZATION OF THE CONSTITUTION – CENTERING ON THE CONSTITUTIONAL COURT OF KOREA’S EXPERIENCE OF THE PAST THIRTY-ONE YEARS

Constitution and Constitutional Adjudicatory Institution onstitution, known as ‘the supreme law of the land,’ is a set of fundamental principles that constitutes the legal basis of a state and governs the basic relations between a state and its people. Core matters are implicitly expressed in a constitution, since all Cthe fundamentals of state organization and operation as well as the basic values pursued in community are to be prescribed. As per the nature of abstractness and openness, it is possible to have constitutional provision LEADERS OF CONSTITUTIONAL REVIEW BODIES 175 whose meaning and interpretation does not remain fixed. In order to practice constitutional provisions in state and social affairs, it is a must to proceed constitutional interpretation so as to derive specific meaning and content therefrom. Furthermore, for a constitution to assert normative power over legislative, executive, judicial and all the other state affairs, constitutional adjudication is necessary as a judicial measure to ensure the supremacy of a constitution. Constitutional adjudicatory institutions render final interpretation of a constitution, secure normative power of a constitution and contribute to realizing constitutional values through constitutional review. Such pattern has been evident throughout the history of activities by constitutional adjudicatory institutions in the Republic of Korea ever since the establishment of the founding Constitution in 1948 – specifically the activities by the current adjudicatory institution, the Constitutional Court of Korea. In Korea, constitutional review system has long remained insignificant despite the fact that judicial bodies such as the Constitutional Council or the Supreme Court were vested with the right to review constitutionality of statutes since the founding of the Constitution in 1948. ‘Constitutional supremacy’ was nothing more than a decorative and declaratory remark, and the power to review constitutionality of statutes was exercised in an extremely limited manner. Against this backdrop, it is not an exaggeration to state that constitutional review had existed in name only. However, the revised Constitution in fruition of the 1987 June Democratic Movement made a faithful correction to the past authoritarian regime and responded to the people’s aspiration towards democracy. It provided for the creation of a constitutional court that could function as a basis to ensure basic rights of the people and realize the rule of law. Consequently, the Constitutional Court of Korea was established in September 1988 and a year after in January 1989, the first unconstitutionality decision279 was pronounced. From the early days, the Constitutional Court proactively functioned as a constitutional adjudicatory body. It reviewed approximately 38,000 cases and ruled 1,700 of them unconstitutional over the past thirty-one years. Thus far, the

279 Constitutional Court of Korea, 88Hun-Ka7, January 25 1989. In this decision, the Constitutional Court ruled that a provision prohibiting the provisional execution in the event of a claim of property rights against the state is against the equality principle, as it grants the state a superior legal status without a reasonable ground. 176 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Constitutional Court reviewed numerous cases on constitutionality of statutes, constitutional complaint, competence dispute, impeachment and dissolution of a political party in pursuit of bridging the gap between constitutional norms and ‘constitutional reality.’ The Court reaffirmed the spirit and value that the Constitution holds and constantly underlined and proved the State’s duty to protect basic rights of the people. That being the case, the Constitutional Court of Korea gradually won the trust of the people calling for greater efforts to strengthen the rule of law and basic rights. Now, the Constitution is no longer regarded as a decorative book but as a living norm in people’s everyday lives. It is also regarded as a standard for every state action, as the rule of law principle, which mandates state powers to abide by the Constitution and law, has been constantly put into practice through constitutional review.

Interpretation of the Constitution by the Constitutional Court of Korea From early days on, the Constitutional Court of Korea claimed “constitutional interpretation is an effort to duly respond to the historical and social demands upon constitutional ideals and values, and suggest direction towards the achievement of constitutional ideas.”280 Since then, the Constitutional Court has been earnest in carrying out active interpretation of constitutional provisions. First, the Constitutional Court finds and affirms the specific content from each individual constitutional provision, recognized for its abstractness and openness, through constitutional interpretation. The basic rights provisions in the Korean Constitution are stipulated in a highly concise and general manner. For instance, Article 10 of the Constitution prescribes “All citizens shall be assured of human dignity and worth and have the right to pursue happiness.” and Article 37(1) prescribes “Freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution.” The Constitutional Court has been active in interpreting such constitutional provisions to draw out a number of important basic rights that are not explicitly written in the Constitution.

280 Constitutional Court of Korea, 88Hun-Ka6, Sep. 8, 1989 LEADERS OF CONSTITUTIONAL REVIEW BODIES 177

For instance, in the case of verifying constitutionality of capital punishment in November 1996, the Constitutional Court acknowledged the right to life as one of the constitutionally guaranteed fundamental rights.281 The Court opined that “the right to life, albeit not prescribed in the Constitution, is a natural right that is innate to all human being. The right is derived from human instinct for survival and has its inherent purpose of existence.” Further, in the case of verifying constitutionality of a provision that imposes criminal punishment for adultery in September 1990, the Constitutional Court opined that “Article 10 of the Constitution guarantees the essentials and intrinsic values of human being in the form of expressing the right of personality and the right to pursue happiness. These rights presume the individual’s right to self-determination, which includes the right to sexual self- determination, namely, the right to decide whether and with whom to enter into sexual relationship.”282 In the Constitutional Court’s ‘constitutional non- conformity’ decision on a provision imposing criminal liability for abortion in April 2019, the individual’s right to self-determination was once again brought to attention in the context of examining the right of a pregnant woman to self- determination.283 The Constitutional Court opined that the right to informational self- determination – the right of the subject of the information to decide when, to whom or by whom, and to what extent his or her personal information will be disclosed or used – is guaranteed by the right of personality derived from the context in Article 10 and by the right to privacy in Article 17 of the Constitution.284 In doing so, the Court aimed to deal with cases of human rights infringement caused by the advancement of info-communication technology, i.e. reckless collection and abuse of personal information. Following the Court’s decision, Personal Information Protection Act was enacted by the National Assembly in 2011.

281 Constitutional Court of Korea, 95Hun-Ba1, Nov. 28, 1996 282 Constitutional Court of Korea, 89Hun-Ma82, Sep. 10, 1990. This ‘anti-adultery’ provision was ruled unconstitutional in February 2015, after being examined and found constitutional in a number of previous rulings. 283 Constitutional Court of Korea, 2017Hun-Ba127, Apr. 11, 2019. 284 Constitutional Court of Korea, 99Hun-Ma513 etc., May 26, 2005; 2003Hun-Ma282 etc., July 21, 2005. 178 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

It is noteworthy that constitutional norm gains concrete and deeper meaning through constitutional review, by which political, economic and social issues are resolved in compliance with the spirit and value that the Constitution holds. Second, the Constitutional Court carries out interpretation on constitutional principles written in a piecemeal fashion or on constitutional provisions containing layered meaning, so as to demarcate the scope of their application or to identify their exact meaning and content. For instance, it is mandated by Article 12 of the Korean Constitution that ‘due process of law’ principle shall apply in case compulsory measure such as punishment, detention, seizure or search takes place. It is a general constitutional principle in that the idea and concept behind the due process of law principle constitutes the rule of law. As such, the Constitutional Court did not limit the usage of the principle to criminal procedures. Rather, the Court interpreted that due process of law principle shall apply in the exercise of every legislative, administrative and other governmental power.285 In this vein, the National Assembly enacted Administrative Procedures Act in 1996 to actualize the due process of law principle, a general constitutional principle, in delivering administrative action. Impeachment process is provided in the Korean Constitution as an institutional measure to protect the core of the rule of law from corrosion by the persons in authority. Nevertheless, it is somewhat simply stated, under Article 65 of the Constitution, that in case he or she “has violated the Constitution or other Acts in the performance of official duties,” the President may be subject to impeachment. During the adjudication on two presidential impeachment cases, the Constitutional Court defined that the aforementioned preconditions for impeachment equals the existence of a ‘grave violation’ of law that is sufficient to justify the removal of the President from office from the perspective of protecting the Constitution and the trust of the people, by which it means not of any trivial violation made in the performance of his or her official duty.

285 Constitutional Court of Korea, 92Hun-Ka8, Dec. 24, 1992; 2007Hun-Ma451, June 25, 2009. LEADERS OF CONSTITUTIONAL REVIEW BODIES 17 9

As such, the Court provides final authoritative interpretation to constitutional provisions. The interpretation thereof is used as a standard for every state affairs.

Constitutional Review and Realization of the Constitution Constitutional Court of Korea’s strong commitment to safeguard the spirit and value that the Constitution holds, through guarantee of the people’s fundamental rights and control on the abuse of state power, is considered one of the greatest achievements of the Court in its thirty-one year history from the inception in 1988. As state affairs lacking constitutional value has been found unconstitutional by the Constitutional Court, state agencies became more aware of the importance of assessing constitutionality before taking any legislative, administrative, judicial and other state action. The people also begun to show confidence that constitutional review on state action by an independent judicial organ, the Constitutional Court, is a necessary means to guarantee their freedom and happiness. The Court’s finding of unconstitutionality of a statute and the National Assembly’s subsequent legislative amendments manifest the process of realization of the Constitution through constitutional review. When the Constitutional Court decides that a statute is unconstitutional, the statute shall lose its effect from the day on which the decision is made, and the decision binds the ordinary courts, other state agencies and local governments (Constitutional Court Act Article 47). In case the Constitutional Court finds that immediate elimination of an unconstitutional statute might create a vacuum in legal order, or acknowledges that the legislature is capable of fixing unconstitutionality using various means, the Court could request the legislature to revise the statute by a certain period while having it remain effective until that time. This type of ruling is called a ‘decision of constitutional nonconformity.’286 This nonconformity decision is a way of respecting legislative discretion of lawmakers, and thereof gains significance in the perspective of the principle of power separation and the principle of

286 See Constitutional Review at AACC Members (Seoul: AACC SRD, 2019), pp. 140-142 for more information. 180 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY democracy. After the nonconformity decision is rendered, it is common that the legislature, in line with the intent behind the decision, enacts a revised law so as to correct the unconstitutionality. Every decision by the Constitutional Court of Korea contributes to realize the Constitution. That being said, below are some of its notable decisions by which the basic norm that forms an underlying basis for a legal system – the Constitution – is being actualized.

Decisions on Criminal Procedure and Criminal Administration In the past, criminal suspects, criminal defendants and not to mention the sentenced prisoners convicted guilty of a crime have long been exposed to various systematic and procedural human rights infringements. Since the establishment, the Constitutional Court has adjudicated the provisions on criminal procedure and inmate treatment as well as the exercise of state power by law enforcement agency, and greatly contributed in realizing the due process of law principle in criminal procedure. The Court also stood at the forefront in revising criminal administration that infringed upon constitutional rights of sentenced prisoners. Some of the notable decisions include: i) Interference with Attorney Visits case, where the Constitutional Court struck down an act that allowed investigation officers or correction officers to attend a meeting and listen or record the conversation between a detainee under trial (suspect, defendant) and his or her attorney on the grounds that the act interferes with the core of the constitutionally guaranteed right to counsel,287 ii) Defendant’s Access to Criminal Investigation Records case, in which the Constitutional Court ruled that prosecutor’s refusal to grant the defendant’s attorney the right to inspect and copy criminal investigation records without a reasonable cause is unconstitutional, on the ground that the refusal contravenes the defendant’s right to have a speedy and fair trial and the right to assistance of counsel,288 iii) Mandatory Wearing of Prison Uniforms for Detainees case, where the Constitutional Court decided that requiring detainees to wear prison uniform during investigation and trial is a violation of their right to be presumed

287 Constitutional Court of Korea, 91Hun-Ma111, Jan. 28, 1992 288 Constitutional Court of Korea, 94Hun-Ma60, Nov. 27, 1997 LEADERS OF CONSTITUTIONAL REVIEW BODIES 181 innocent, rights to dignity and worth as a human being and rights to a fair trial,289 iv) Overcrowded Detention Centers case, where the Constitutional Court ruled that if the confinement space provided per person in a correctional facility is excessively small, making it difficult for a convicted prisoner to satisfy the basic needs of a human being, it itself is an infringement of the human dignity and worth of the convicted prisoner.290 To be sure, there are a collection of other relevant decisions.291

B. Decisions on Freedom of Expression Freedom of expression is recognized as one of the most important basic rights to realize human dignity and worth and pursue happiness, for it guarantees the right of individuals to freely express opinion and impart information. It is also an indispensable condition in a democratic political system, as political participation is exercised in the form of free expression and exchange of varying ideologies and opinions. Acknowledging such imperativeness, the Constitutional Court of Korea has strived to guarantee the freedom of expression through constitutional review. Some of the notable decisions include: i) Motion Pictures Pre-Inspection case, where an Act that subjects all movies to pre-inspection by a state agency was struck down by the Constitutional Court as being violative of the constitutional ban on censorship,292 ii) the case on Real-Name Verification Requirement on the Internet, where the Constitutional Court ruled that the provisions mandating internet service providers to keep identity verification information of online users, the condition under which users are required to verify their identity before engaging in internet forum or message board, violate the Constitution by infringing on the freedom of expression,293 and iii) the case on Prohibition of Nighttime Outdoor Assemblies, in which the Constitutional Court held

289 Constitutional Court of Korea, 97Hun-Ma137 etc., May 27, 1999 290 Constitutional Court of Korea, 2013Hun-Ma142, Dec. 29, 2016 291 Unconstitutionality decision on the act of censoring correspondence between detainee and coun- sel, forcing to use lavatories without sufficient shielding facilities at police detention facilities, excessive bodily search against a criminal suspect, banning participation of attorney in prosecutor’s interrogation of suspects not in custody, prohibiting exercise or writing of the inmates during the execution of sanction, allowing taking a photo of a handcuffed suspect, and etc. 292 Constitutional Court of Korea, 93Hun-Ka13, etc., Oct. 4, 1996; after the decision, the pre- inspection system was replaced by a film rating system. 293 Constitutional Court of Korea, 2010Hun-Ma47 etc., Aug. 23, 2012 182 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY that provisions imposing general ban on outdoor assemblies scheduled at nighttime (before sunrise and after sunset) do not conform to the Constitution by excessively limiting the right to assembly.294

C. Decisions on Family System The Constitutional Court of Korea greatly contributed to the improvement of the State’s family system and social practice based on patriarchy and male supremacy, which were handed down from the past as a cultural heritage of the Confucian tradition. The Constitutional Court of Korea held that a provision of the Civil Code which voids all same-surname-same-origin marriage regardless of the degree of kinship is nonconforming to the Constitution. The Court declared the instant provision “is in direct conflict with the principles of constitutional idea and provision on human dignity and worth and the right to pursue happiness, as well as with the provisions in the Constitution that calls for establishment and maintenance of marriage and family life on the basis of individual dignity and gender equality.”295 This decision granted legal marital status to the estimated 200,000 couples (previously in de facto marriage) and provided a breakthrough for the attempts to revise the other related family law statutes that were in standstill. The house head system is a traditional Korean family system whereby a household, a concept of a collective, is formed around the house head at its core and passes down only through direct male descendants serving as successive house heads. In 2005, the Constitutional Court held that the house head system discriminates men and women based on stereotypes concerning sexual roles without justifiable grounds, and issued a decision of constitutional nonconformity on the relevant provisions in the Civil Code.296 This decision instantly triggered the repeal of sexually discriminatory Civil Code provisions that constituted the backbone of the house head system and demanded major reform in family law.

294 Constitutional Court of Korea, 2008Hun-Ka25, Sep. 24, 2009 295 Constitutional Court of Korea, 95Hun-Ka6 etc., Jul. 16, 1997 296 Constitutional Court of Korea, 2001Hun-Ka9 etc., Feb. 3, 2005 LEADERS OF CONSTITUTIONAL REVIEW BODIES 183

These two abovementioned decisions clearly illustrate that even if a particular social system is distinctively an outcome of traditional culture, it cannot be contrary to constitutional values, and that constitutional interpretation is a forward-looking process that goes beyond the past and present practice.

D. Decisions on Election and Political Affairs Election law in Korea used to have the so called ‘one-person one-vote’ system for the elections of National Assembly members, under which the voters were not allowed to cast their votes for political parties. In 2001, the Constitutional Court of Korea found unconstitutionality in this system, as allocating proportional seats for each party according to the votes the party received in the electoral districts does not accurately express the voters’ preference, and is against the principle of direct election as well as the right to equality of citizens.297 Following the decision, the election law was revised to allow one voter to cast two votes: one for a candidate in the electoral district and another for the proportional seats in National Assembly elections. This decision is widely viewed as a catalyst for major overhaul in electoral system of public officials that significantly contributed to realizing the constitutional principles of popular sovereignty and democracy. Alongside the above decision, the Constitutional Court rendered a number of decisions on other issues such as voting rights of the imprisoned, population deviance in congressional districting and provisions on election campaign, to maximize the people’s political participation and to guarantee accurate expression of the people’s preference. These efforts led to key changes in the exercise of political rights.

E. Decisions on Presidential Impeachment Since the founding of the Constitution, Korea has undergone two presidential impeachment cases. To note, the Korean Constitution prescribes the National Assembly to pass motions for presidential impeachment and the Constitutional Court to adjudicate on impeachment case. The first petition

297 Constitutional Court of Korea, 2000Hun-Ma91 etc., Jul. 19, 2001 184 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY for impeachment was dismissed in May 2004298, while the second petition for impeachment was upheld in March 2017 to remove the President from office.299

The first impeachment case was dismissed for the reason that the President’s violations were not grave enough to merit the punishment of impeachment as a way to safeguard the Constitution and restore constitutional order. With regards to the second impeachment case, there was a suspicion that the President allowed her acquaintance to intervene in state affairs, abused presidential power to coerce large business companies to give economic favors to the acquaintance, and delivered to the acquaintance presidential documents related to official duties. In December 2016, the National Assembly passed a motion for presidential impeachment and in March 2017, the Constitutional Court rendered a decision to remove the President from office with the consensus of all Justices. The Court found that the President’s acts of violating the Constitution and law are a betrayal of the people’s confidence, and should be deemed as a grave violation of law that is unpardonable from the perspective of protecting the Constitution. This decision, though painfully achieved, was unavoidable in consideration of safeguarding the core values of the Constitution, in other words, the popular sovereignty, democracy and the rule of law. The impeachment decision is anticipated to serve as a guideline for the future Presidents and all public officials to distance themselves from power abuse and accord with the Constitution in handling state affairs.

Guardian of the Constitution For the past thirty-one years since its birth, the Constitutional Court of Korea rendered a multitude of decisions that proactively realized ideals and values that the Constitution holds through the guarantee of the people’s fundamental rights and control on the abuse of state power. In the aftermath of a political failure to find adequate solutions through dialogue and compromise, more and more cases on conflicting - yet socially influential - political, economic and social issues are filed with the Constitutional

298 Constitutional Court of Korea, 2004Hun-Na1, May 14, 2004 299 Constitutional Court of Korea, 2016Hun-Na1, Mar. 10, 2017 LEADERS OF CONSTITUTIONAL REVIEW BODIES 185

Court in expectation of receiving a judicial solution. Particularly with regards to polarized issues or those in serious dispute, there is a public expectation that the Constitutional Court will serve as a mediator to strike a proper balance between conflicting views and interests, and ultimately build social cohesion. As determined by constitutional value and spirit, the Constitutional Court should be able to properly adapt to the changing historical and social demands and provide a constitutional answer to the question of how the state and society should move forward. 186 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Bakhtiyar MIRBABAYEV Chairman of the Constitutional Court of the Republic of Uzbekistan, Candidate of Legal Sciences, Associate professor COMMON AND SPECIAL FEATURES IN THE CONSTITUTIONAL AND LEGAL STATUS OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN AND THE CONSTITUTIONAL COURT OF THE REPUBLIC OF UZBEKISTAN

fter independence, the Republic of Kazakhstan and the Republic of Uzbekistan enshrined in their constitutions the main provision that the highest values in these states are people, their life, rights and freedoms. AThe Constitution of the Republic of Kazakhstan, adopted on August 30, 1995, is a fundamental state-legal document that guarantees basic human rights and freedoms, free elections, the implementation of the principle of unity of state power and its division into the legislative, executive and judicial branches of government and others. LEADERS OF CONSTITUTIONAL REVIEW BODIES 187

Speaking at an international conference dedicated to the 20th Anniversary of the adoption of the Constitution, the First President of the Republic of Kazakhstan, N. Nazarbayev, said that “... we have come the greatest way by following the provisions of the Constitution. Kazakhstan today is a well- established, respected and worthy state of the world. This is a concrete implementation of all the provisions and principles of our Basic Law. Only that state and social system is effective if it is able to change for the better. Our Basic Law has all the legal tools for successful development and for the nation’s self-renewal. We have set a global goal to turn Kazakhstan into one of the 30 most developed countries in the world by the middle of the century on the basis of the developed strategic program until 2050.”300 During the years of independence, Uzbekistan has formed legislation in accordance with universally recognized norms of international law, the fundamental basis of which is the Constitution of the Republic of Uzbekistan. As is well known, the supremacy of the Constitution is one of the important principles of the State, which ensures constitutional legitimacy, hence the real protection of the constitutional rights and freedoms of citizens. President of the Republic of Uzbekistan Sh. Mirziyoyev noted that “At present, the most important task for building a democratic state and civil society in our country is to ensure the rule of law and justice. The role and importance of the judicial system, which is an independent branch of government, are very important in this process. We are even more aware of this truth in the process of large- scale reforms aimed at taking our country to a new level of development.”301 Ensuring the supremacy of the Constitution is one of the main means of protecting human rights and freedoms. Therefore, the Constitution of the Republic of Kazakhstan and the Constitution of the Republic of Uzbekistan provided for the functioning of a special body of constitutional control – in Kazakhstan initially the Constitutional Court, then the Constitutional Council and in Uzbekistan the Constitutional Court.

300 http://www.akorda.kz/ru/speeches/internal_political_affairs/in_speeches_and_addresses/vystuple nie-prezidenta-kazahstana-nnazarbaeva-na-mezhdunarodnoi-nauchno-prakticheskoi-konferencii- posvyashchennoi-20-letiyu-prinyatiya-konst 301 Sh. Mirziyoyev. Уверенно продолжим путь национального развития на новом этапе. Vol. 1. Ташкент: ИПТД «Узбекистан», 2018, pp. 333-334 188 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Constitutional control ensures the reliable protection of human rights and freedoms, the supremacy of the Constitution, i.e. compliance with the norms, principles and ideas of the Constitution by the state legislative and executive branches of government. As you know, constitutional control is expressed in the determination by the competent authority of the constitutionality of laws, other regulations. At the time of independence, the specialized body of constitutional control was not a novelty for our countries. The establishment of the institution of constitutional control in Kazakhstan is connected with the introduction in 1989 of an amendment to the Constitution of the Kazakh USSR, providing for the establishment of the Constitutional Oversight Committee, which, however, was not established. Later, the Constitutional Law of the Republic of Kazakhstan of December 16, 1991, “On the State Independence of the Republic of Kazakhstan” found that the highest judicial protection body of the Constitution was the Constitutional Court of the Republic of Kazakhstan. This body was elected by the Supreme Council of the Republic on 2 July 1992 and exercised constitutional control till October 1995.302 On the basis of the 1995 Constitution of the Republic of Kazakhstan, a new body exercising constitutional control, the Constitutional Council, was formed, which is characterized by the fact that “... is not included in any of those named in Clause 4 of Article 3 of the Constitution of the branches of government, including the judiciary, and is not a cassation or supervisory authority for the courts of general jurisdiction.”303 The Committee of Constitutional Oversight had been operating in the Uzbek USSR since 1990. By the nature of most of the rights granted to it, the Committee was an auxiliary institution of the highest legislative body, mainly with deliberative functions. However, the practice of developed democracies shows that constitutional control in the form of justice is the most effective mechanism for ensuring the supremacy and legal protection of

302 http://ksrk.gov.kz/index.php/page/istoriya-stanovleniya-i-razvitie-konstitucionnogo-kontrolya-v- respublike-kazakhstan 303 Constitutional control in Kazakhstan: doctrine and practice of constitutionalism approval. Almaty, «Rarity», 2015, p. 77 LEADERS OF CONSTITUTIONAL REVIEW BODIES 189 the Constitution. Therefore, the 1992 Constitution provided for a European model of constitutional control characterized by the establishment of a special judicial body of constitutional control. Thus, a judicial authority, the Constitutional Court, was established in the country.

General aspects The constitutional and legal status of the Constitutional Council of the Republic of Kazakhstan and the constitutional and legal status of the Constitutional Court of the Republic of Uzbekistan are determined by the constitutions of these countries and the constitutional laws on these bodies. The Constitution of the Republic of Kazakhstan devotes a special section, Section VI, consisting of four articles, 71, 72, 73 and 74. Separate powers of the Constitutional Council are provided in other articles of the Constitution. The Constitution of the Republic of Uzbekistan devotes two articles – 108 and 109 – to the Constitutional Court. Separate powers of the Constitutional Court are provided in other articles of the Constitution. In recent years, our countries have been introducing amendments and addenda to improve the institution of constitutional control. Thus, in the Republic of Kazakhstan, the law of 10 March 2017, amended Articles 72, 73, 74 of the Constitution, aimed at strengthening the institution of constitutional control and increasing the responsibility of the Constitutional Council. In the Republic of Uzbekistan, the law of 31 May 2017 introduced amendments and addenda to Articles 108, 109 of the Constitution, defining the basis of the constitutional court’s legal position, aimed at further improving the constitutional control and strengthening the independence of the Constitutional Court. The Constitutional Council and the Constitutional Court, in exercising their powers, are independent of public bodies, organizations, officials and citizens, and subject only to the Constitution. In accordance with the Constitution of the Republic of Kazakhstan, the Constitutional Council consists of seven members whose powers last for 6 years. The Constitution does not limit the number of appointments 190 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of members of the Constitutional Council. The Constitutional Court of the Republic of Uzbekistan consists of seven judges. The term of office of judges of the Constitutional Court is not provided by the Constitution, it is defined by constitutional law and is 5 years. The same person may not be elected a judge of the Constitutional Court more than twice. The issue of removing such a restriction is currently being discussed in Uzbekistan. The Chairperson of the Constitutional Council is appointed by the President of the Republic of Kazakhstan. The Chairperson of the Constitutional Court of the Republic of Uzbekistan and his deputy are elected from among the judges of the Constitutional Court at its meeting. Kazakhstan’s legislation does not provide for the position of Deputy Chairperson of the Constitutional Council. Two members of the Constitutional Council are appointed to the post by the President of Kazakhstan, two members of the Constitutional Council are appointed on the nomination of the Chairpersons of the Houses of Parliament, by the Senate and Majilis of the Parliament respectively. Half of the members of the Constitutional Council are renewed every three years. The Constitutional Court is elected by the Senate of Oliy Majlis (upper house of the parliament) on the nomination of the President of the Republic of Uzbekistan from among those recommended by the Supreme Judicial Council of the Republic of Uzbekistan, which is the body of the Judiciary community and assists in ensuring that the constitutional principle of judicial independence is respected.

Competence The Constitutional Council of the Republic of Kazakhstan makes decisions, in the event of a dispute, on the accuracy of elections of the President, the Parliament Members and on holding of a national referendum. The cases on the accuracy of the elections and the national referendum are not confined to the Constitutional Court of Uzbekistan. In accordance with the law, the decisions of the Central Electoral Commission can be appealed to the Supreme Court. LEADERS OF CONSTITUTIONAL REVIEW BODIES 191

The Constitutional Council verifies the conformity of the following with the Constitution: 1) the laws passed by Parliament before signing by the President of Uzbekistan; 2) the Resolutions of Parliament and its Chambers; 3) international treaties of Uzbekistan before they are ratified. The Constitutional Court determines the constitutionality of: 1) effective: the laws; Resolutions of Parliament’ Chambers; Decrees, Instructions and Orders of the President of the Republic; Government’s Resolutions; decisions of local government authorities; Interstate contractual and other obligations of Uzbekistan; 2) adopted by the Parliament constitutional laws, laws on ratification of international treaties before they are signed by the President of Uzbekistan. The Constitutional Council provides: 1) official interpretation of the norms of the Constitution; 2) prior to the adoption by Parliament respectively of the decision on the early dismissal of the President of the Republic, the final decision on the dismissal of the President of the Republic - an opinion on compliance with established constitutional procedures. The Constitutional Court interprets the rules of the Constitution and laws. The legislation of the Republic of Uzbekistan does not provide for issues on the early release of the President of the Republic. Constitutional Council: 1) considers the appeals of the President of the Republic sent to the Constitutional Council to verify the compliance of the enacted law or other legal act in accordance to the Constitution; to have conclusions on amendments and addenda into the Constitution on compliance to the requirements set out by Clause 2 of Article 91 of the Constitution; and appeals by the courts to declare statutes and regulations unconstitutional; 2) on the results of the generalization of the practice of constitutional proceedings annually sends to the Parliament a message on the state of constitutional legality in the Republic. 192 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Constitutional Court: 1) considers the appeals of the President of the Republic sent to the Constitutional Court to consider: verification of an enacted law or other legal act on compliance to the Constitution; verification of constitutional laws and laws on ratification of international treaties of the Republic of Uzbekistan – before they are signed by the President of the Republic – on compliance to the Constitution; giving agreement on dissolution of the Legislative Chamber, the Senate of Oliy Majlis in the event of insurmountable disagreements in the Legislative Chamber or the Senate that jeopardize their normal functioning, or in the event of their repeated decisions contrary to the Constitution, as well as the emergence of insurmountable disagreements between the Legislative Chamber and the Senate jeopardizing the normal functioning of Oliy Majlis; also the Constitutional Court considers the appeal of the Supreme Court, initiated by the courts, on the constitutionality of the regulations to be applied in a particular case; 2) considers the appeals of other public bodies and officials who have the right to submit questions to the Constitutional Court on matters within its jurisdiction; 3) on results of the generalization of the practice of constitutional proceedings, annually submits to the Chambers of Oliy Majlis and the President of Uzbekistan information on the state of constitutional legality in the country; 4) determines compliance of orders and other acts of the General Prosecutor (except for acts of an individual nature) to the Constitution and the laws. 5) gives an opinion on the compliance of the Constitution of the Republic of Karakalpakstan to that of the Republic of Uzbekistan and of the laws of the Republic of Karakalpakstan to that of the Republic of Uzbekistan. The Constitutional Court has the right of legislative initiative, that is, the right to submit draft laws to the Legislative Chamber of Oliy Majlis. LEADERS OF CONSTITUTIONAL REVIEW BODIES 193

Right to appeal As is well known, constitutional proceedings are initiated on the basis of the request of public authorities or officials to the constitutional control body with a request to consider an issue related by law to its competence. In accordance with the Constitution, the following may apply to the Constitutional Council: 1) President of the Republic of Kazakhstan; 2) Chairperson of the Senate of the Parliament; 3) Chairperson of the Mazhilis of the Parliament; 4) Members of Parliament of at least one-fifth of their total number; 5) Prime Minister; 6) Courts of the Republic. The following may apply to the Constitutional Court: 1) The Chambers of Oliy Majlis, 2) President of the Republic of Uzbekistan; 3) Cabinet of Ministers; 4) Human Rights Commissioner of Oliy Majlis (Ombudsman); 5) Zhokarghy Kenes (Parliament) of the Republic of Karakalpakstan; 6) Group of deputies of at least one-fourth of the total number of Members of the Legislative Chamber of Oliy Majlis; 7) Group of Senators of at least one-fourth of the total number of Members of the Senate of Oliy Majlis; 8) Supreme Court; 9) General Prosecutor. The issue may be submitted to the Constitutional Court on the initiative of at least three judges of the Constitutional Court. In recent years, Uzbekistan has seen a trend to expand the number of actors with such a right. For example, the Cabinet of Ministers and the Ombudsman were granted such a right by the new Constitutional Law. At the same time, the issue of granting the right to the National Centre for Human Rights to bring the issue to the Constitutional Court is currently under discussion. 194 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Conclusion Thus, the constitutional and legal status of the Constitutional Council of the Republic of Kazakhstan and the Constitutional Court of the Republic of Uzbekistan has much in common. These bodies are specialized bodies of constitutional control. Their works is aimed at protecting human rights and freedoms and uphold the supremacy of the Constitution. They perform the task of a peculiar element in the mechanism of ensuring checks and balances between branches of state power, and therefore are independent of the state authorities of the branches of government. Their constitutional and legal status is enshrined in the Constitution and in the constitutional laws on these bodies. In recent years, the Republic of Kazakhstan and the Republic of Uzbekistan have taken significant steps to improve constitutional control, increase responsibility and strengthen the independence of the Constitutional Council and the Constitutional Court. 3. The Constitutional Council and the Constitutional Court consist of the same number of seven members (judges). 4. The Head of State, the President of the Republic, and the legislature, the Parliament, take part in the formation of these bodies. 5. Verification of constitutionality of laws and other regulations is central to these bodies. 6. Constitutional proceedings in the Constitutional Council of the Republic of Kazakhstan and the Constitutional Court of the Republic of Uzbekistan are carried out in accordance with the Constitution and the Constitutional Law. A draft of a separate law “On Constitutional Proceedings” has been prepared in Uzbekistan. 7. Citizens are not among the subjects of appeal to the Constitutional Council of the Republic of Kazakhstan and the Constitutional Court of the Republic of Uzbekistan. Their constitutional rights and freedoms are usually protected in the courts of general jurisdiction. The laws of these countries stipulate that if the court considers that the law or other legal act to be applied infringes on the human right and freedoms enshrined in the Constitution, it is obliged to apply accordingly to the Constitutional Council or the Constitutional LEADERS OF CONSTITUTIONAL REVIEW BODIES 195

Court with the submission of request to recognise an act unconstitutional. The final decisions of the Constitutional Council and the Constitutional Court are final and cannot be appealed. However, they also have specific features. 1. The Constitutional Council of the Republic of Kazakhstan does not belong to the legislative, executive or judicial branch of the state government. The Constitutional Court of the Republic of Uzbekistan is the state body of the judicial branch of government. 2. The powers of the Chairperson and Members of the Constitutional Council last for 6 years. The powers of the Chairperson, his/her Deputy and the Judges of the Constitutional Court last for 5 years. 3. The Chairperson and Members of the Constitutional Council of the Republic of Kazakhstan are appointed; judges of the Constitutional Court of the Republic of Uzbekistan are elected. The Chairperson of the Constitutional Court and his Deputy are elected by the Judges of the Constitutional Court at their meeting. 4. The Constitutional Council of the Republic of Kazakhstan largely implements preliminary control, and the Constitutional Court of the Republic of Uzbekistan largely implements follow-up. 5. The Constitutional Council of the Republic of Kazakhstan is responsible for deciding on the correctness of conducting the election of the President of the Republic, Members of Parliament and the National Referendum. Such matters are not within the competence of the Constitutional Court of Uzbekistan. 6. The Constitutional Council of the Republic of Kazakhstan gives a formal interpretation of the Constitution. The Constitutional Court of the Republic of Uzbekistan gives a formal interpretation of the Constitution and laws. 7. The Prime Minister, the courts and others have the right to apply to the Constitutional Council of the Republic of Kazakhstan. The Cabinet of Ministers, the Human Rights Commissioner (Ombudsman), the Supreme Court, the General Prosecutor and others have the right to apply to the Constitutional Court of the Republic of Uzbekistan. 196 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Thus, while there are some differences in the constitutional and legal status of the Constitutional Council of the Republic of Kazakhstan and the Constitutional Court of the Republic of Uzbekistan, there are still many similarities. Their constitutional and legal status is determined on the basis of the main objective of ensuring the supremacy of the Constitution, aimed at genuine protection of human rights and freedoms. LEADERS OF CONSTITUTIONAL REVIEW BODIES 197

Karim KARIMZODA Deputy Chairman of the Constitutional Court of the Republic of Tajikistan, Candidate of political sciences CONSTITUTIONALISM - BASIS FOR THE DEVELOPMENT OF MODERN POLITICAL PROCESSES IN TAJIKISTAN

Over the past centuries, the issues of the theory and practice of constitutionalism have been and remain the most pressing problem of social development, and “more than a decade the general themes of the theory of constitutionalism have been discussed, its characteristic features are revealed: the rule of law, the separation of powers, the priority of individual rights and freedoms, the ways of their implementation and protection, democratic order, etc. The necessity and ways of establishing a multi-party political system and ideological pluralism are discussed304.”

304 See: Kutafin O.E. Russian constitutionalism. - Moscow: Norma, 2008.- P. 2. URL: http://www. juristlib.ru/book_3675.html 198 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Such an attitude to constitutionalism, in essence, is the rationale for the essence of this multifaceted category with all its nature and patterns of formation and development, and, as N.S. Bondar notes, the concept of “constitutionalism” on the level of generalization acquired the quality of one of the most significant and capacious concepts, playing the role of a system- forming category305. Today, one of the most important conditions for the progressive development of democratic states and societies is constitutionalism with its many theoretical conceptual and practical principles and approaches. It is recognized and perceived by society as the fundamental basis for building a democratic state, developing a political system, improving state power, and creating institutional structures of civil society. But the paradox is that neither in philosophy, nor in political science, nor in jurisprudence exist a single, understandable apparatus of constitutionalism. Although this did not become an obstacle to the constant and systemic functioning of genuine democratic states and civil societies. The states and their political systems, as in previous times, function constantly and systematically, aiming at being united, integral, effective, open and democratic. A characteristic feature of both the Western and Russian studies of the phenomenon of constitutionalism is that the ideas of democracy, separation of powers, constitutional-political structure and other democratic principles were not shared in them, but were viewed in unity and as integral parts of a single political system. The ideas that democratic principles based on constitutionalism should promote the effective functioning of the entire social system and the interaction of its basic elements were upheld. Even at this stage of development of political and legal doctrines, political and legal literature offers many characteristics of constitutionalism, democratic institutions and processes, in particular constitutionalism is considered as the most important direction of the political life of modern states. One cannot but agree with V.V. Nersesyants that the further development of the principles of civil society and the rule of law in Russia is directly

305 See: Bondar N.S. Human Rights in the theory and practice of Russian constitutionalism / / Rus- sian constitutionalism: problems and solutions. - Moscow, 1999.- Pp. 135-140. LEADERS OF CONSTITUTIONAL REVIEW BODIES 199 dependent on the strength of constitutionalism306. Undoubtedly, based on a multitude of features, the concept of constitutionalism is referred to those concepts in relation to which there are numerous and sometimes mutually exclusive formulations. So, T. Shogimen notes that “despite the fact that constitutionalism has become a “commonplace” in modern political discourse, it remains an indefinable concept. Some even believe that it is impossible, or not necessary, to give it a definition307.” A. Shayo characterizes constitutionalism, which “seems like a broad blanket, that can cover much,308” and notes that “we have approximately the same relations with constitutionalism as in saint. Augustine with God: “I cannot give Him a definition, but I know what is godlessness309.” G.G. Harutyunyan believes that the concept of “constitutionalism” is multi- layered and multifaceted, and it cannot be characterized by any specific feature310. But despite this, an analysis of political and legal literature as a whole allows us to distinguish three approaches to the conceptual apparatus of constitutionalism311. The first approach covers legal research. In this approach, constitutionalism is defined mainly as government, limited by the Constitution. So, A.A. Mishin notes that “the first bourgeois constitutions in the true sense of the word were the American in 1787 and the French in 1791. In the same epoch, the concept of constitutionalism emerges and is institutionalized, which was understood as a government limited by the constitution. Theorists of the time taught that the constitution not only limits the limits of state power, but also establishes procedures for exercising power functions312”

306 See: Nersesyants V.S. Constitutionalism as a state ideology //the Constitutional and legal reform in the Russian Federation: collection of articles / ed. edited by Yu. s. Pivovarov. - Moscow, 2000. - S. 6 - 8. 307 Shogimen T. Constitutionalism. In: New dictionary of the history of ideas. Vol. 2. N.Y. - Lnd., 2005, p. 458. 308 Chaillot A. self- Restraint of power. Short course of constitutionalism. Moscow, 1999. P. 8. 309 Ibid. P. 24. 310 Harutyunyan, Constitutionalism: lessons, challenges, guarantees: collection of FAV. publ. and invoiced. on the road. forums, posv. this problem/ - K.: Logos, 2011.- P. 15. 311 State law of bourgeois and developing countries: textbook-M. 1989.- P. 67; Stepanov I. M. Facets of Russian constitutionalism (XX century) / / constitutional system of Ru 312 State law of bourgeois and developing countries. - Moscow, 1989. - P. 67. 200 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Other authors also confirm the viability of the first approach. So, Yu.V. Puzrach defines constitutionalism as the existence ofa constitutional form of government, government, limited by the Constitution; E. Bradent - as constitutional means for imposing restrictions on state power; A. Shaio - as a community of principles, order of activity and structural mechanisms that are traditionally used to limit state power; self-restraint of power; G. Russell - as a restriction of the powers of state leaders, state bodies and the implementation of these restrictions using established procedures. As a subject of a political or legal theory, this concept is connected with the concept of the state, which primarily serves both for the good of society as a whole and for the protection of the rights of an individual313. According to O. Early, constitutionalism is a certain set of ideals that enter into competition with other ideals in search of a popular form of support for forms of constitutional governance of the country - constitutionalism, according to which the power of the government should be limited so that human rights are protected from attacks parties officials and individuals314. As can be seen, most authors agree on one thing that constitutionalism is characterized by “imposing restrictions on the use of political power”, and the main criterion of this concept is “the concept of limited rule under the rule of law”315. Thus, the definition of constitutionalism as a state government, limited by the Constitution, is closely connected with the historical evolution of this phenomenon, which reflects the epochs of struggle with the monarchy as a form of government. The ideological inspirer of this struggle is the Constitution as a political document and legal act with the highest legal force, as well as the further evolution and development of the political system of societies. Prav O.E. Kutafin is that in the future this term gained a wider meaning

313 See: Puzrach Yu.V. History of Russian constitutionalism of the IX-XX centuries- St. Peters- burg.,2004.- P. 7.; E. Barendt, Introduction to Constitutional Law –Oxford Univ. Press, 1998. - P. 14.; Chayo A. self- Restriction of power (short course of constitutionalism) - M., 1999; chayo A. Transnational networks and constitutionalism/ / Comparative constitutional review -2008. - No. 5(66). - P. 123.; Russell, Greg. Materials about democracy. Constitutionalism: the experience of America and other countries/ /”All about the US: Government and politics”. URL: http://www.infousa. ru / government / dmpaper 2.htm. etc. 314 Cyte. by: Sharan P. Constitutionalism/ / Comparative political science. Part 2. - Moscow, 1992. - P. 209. 315 Fellmand D. Constitutionalism. In: Dictionary of the history of ideas. Vol. 1. - N.Y., 1973, p. 485. LEADERS OF CONSTITUTIONAL REVIEW BODIES 201 and began to be used to characterize the democratism of the social system of various states316. The second approach to the conceptual apparatus of constitutionalism defines constitutionalism as a doctrine of the constitution, as the basic law of the state and society and the process of relations between them. According to the majority of the authors, it is associated with the origin of the very word “constitutionalism,” which comes from the Latin “constitutio” (establishment, prescription, norm, rule), and in modern political and legal research is one of the main. So, G.J. Berman notes that “the word” constitutionalism “was invented in the late XVIII - early XIX centuries. to refer mainly to the American doctrine of supremacy of a written constitution over published laws317. At the same time, legal experts adhering to the first and second approaches are conventionally divided into two large groups: 1) connecting the phenomenon of constitutionalism with the very fact of the existence of the Constitution and the legal regulation implemented by it; 2) considering constitutionalism from an axiological point of view as a manifestation of a certain culture of social coexistence. Moreover, they note that the first approach follows from the second and has a derived meaning318. Thus, I.A. Kravets notes that the term “constitutionalism” comes from the term “constitution”, but it is not equivalent to the constitution and has many interpretative meanings in modern legal, political and historical sciences319. Stepanov believes that in the categorical apparatus of science the concept of “constitutionalism” has begun to acquire an independent true meaning. Previously, they routinely resorted to it, almost as equivalent to the concepts of “constitution”, “constitutional system”, “form of government” and even “political regime”320.

316 Kutafin O.E. Russian constitutionalism. Moscow: Norma 2008. - P. 3. URL: http://www.juristlib. ru/book_3675.html 317 Berman G.Dzh. The Western tradition of law: the age of formation. Per. from the English. - 2nd ed. - Moscow: Publishing house of Moscow state University: publishing group INFRA-M-NORM, 1998. - P. 370. 318 G.G. Harutyunyan Decree. Op.-P. 15. 319 See: I. A. Kravets Formation of Russian constitutionalism. - P. 12. 320 I.M. Stepanov Facets of Russian constitutionalism (XX century) / / constitutional system of Russia. Vol. I.-M., 1992. - Pp. 30-31. 202 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

N.S. Bondar is also of the opinion that with all the variety of approaches to the concept of “constitutionalism”, it is obvious that its fundamental characteristics - both in terms of the genesis, origin and historical development of this phenomenon, and in epistemological terms - are connected, in the final analysis, with its single-root concept - the constitution as the fundamental law of society and the state. The author, while associating the concept of constitutionalism with its single-root concept - the constitution, at the same time admits that constitutionalism is too complicated a legal concept to be given at the mercy of only to lawyers321. The authors of the majority of legal textbooks on the history of bourgeois constitutionalism, the concept of constitutionalism is also associated with the presence of a constitution in the state. So, for constitutionalism as a politico-legal practice, the very fact of the presence of a constitutional and its active influence on the political life of a country is essential322. Constitutionalism means, first of all, the very fact of the existence ofa constitution and its active influence on the political life of the country, ... mediation of political relations by constitutional and legal norms, constitutional regulation of the state system and political regime323.” A group of legal scholars who consider constitutionalism as a manifestation of a certain culture of social coexistence connect it with culture, ideology and legal consciousness. So, V.S. Nersesyants considers constitutionalism as an ideology of respect, observance and protection of the constitution, as a nation-wide, supra-party ideology of any legal state324. In philosophy, there is also no single interpretation of constitutionalism. So, V.N. Rastorguyev, exploring the ideas of constitutionalism in the philosophy of politics and law, notes that there are a lot of paradoxes that

321 N.S. Bondar Russian judicial constitutionalism: an introduction to the research methodology. Right Formula. - Moscow, 2012. - P. 12-13. 322 History of bourgeois constitutionalism of the XIX century-M., 1986. - P. 3. 323 See: History of bourgeois constitutionalism of the XVII - XVIII centuries-Moscow, 1983. - P. 3. 324 See: Nersesyants V.S. constitutionalism as a state ideology //the Constitutional and legal reform in the Russian Federation: collection of articles / ed. edited by Yu.S. Pivovarov. - Moscow, 2000. - S. 6 - 8. LEADERS OF CONSTITUTIONAL REVIEW BODIES 203 inevitably arise in the process of interpreting constitutionalism. When we talk about the principle of constitutionalism, we often find ourselves in a well- known cabin, associated with the vagueness of this concept, which allows us to manipulate the mind. The point is that we fill this word with the meaning that is pleasing to us, and we often do so within the framework of the same text325. N.Y. Danilevsky approaches the problem of constitutionalism with regard to the political, socio-cultural and historical contexts, while demonstrating the methodological potential of the theory of cultural-historical types. In his opinion, the reason that “constitutionalism in the English way” is presented as a universal phenomenon, like religious or state atheism, and monarchical feudalism — a national (German-national) phenomenon, is explained by the “infidelity of the historical view that confuses Europe with humanity and the stages of development are of cultural and historical types326”. One cannot but agree with the opinion of V.N. Rastorguev that “such a subtle analysis of the nature of constitutionalism is rarely found in modern works devoted to this topic327.” V.I. Cruss, exploring the philosophy of modern constitutionalism, notes that: “The philosophy of constitutionalism is designed to talk about how, and therefore - and for what, the social life of free people can and should be fundamentally organized and streamlined328.” Thus, legal approaches in the study of constitutionalism are closely related to political, socio-cultural and historical aspects, first of all, the stages of development of the state and society. They are interconnected, and being only this, they give a complete idea of constitutionalism​​ as a political reality and political-legal phenomena.

325 Rastorguev V.N. The idea of constitutionalism in the philosophy of politics and law. Philosophy of law at the beginning of the XXI century through the prism of constitutionalism and constitutional Economics / PREV. Mironov V. V., Solonin Yu. N.; publication of the Moscow-Petersburg philosophi- cal club. - Moscow: Summer garden, 2010. - P. 171. 326 See: V.N. Rastorguev Ibid. - P. 169. 327 See: V.N. Rastorguev Ibid. - P. 169. 328 V.I. Kruss Philosophy of modern constitutionalism and the problem of abuse of law. Philosophy of law at the beginning of the XXI century through the prism of constitutionalism and constitutional Economics / PREV. V.V. Mironov, Yu.N. Solonin; publication of the Moscow-Petersburg philosophical club. - Moscow: Summer garden, 2010. - P. 214. 204 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The third approach is political studies of constitutionalism. This approach defines constitutionalism as the legal basis of a political system functioning on constitutional methods of government; a socio-political movement, and the idea of ​​restricting power, and a system of public law institutions ensuring the implementation of constitutional norms, a political and legal principle, and a political system, and formally following the norms of the constitution, etc329. D.V. Lisitsyn is just in that this kind of categorical pluralism is explained, first of all, by the fact that constitutionalism, being a very broad concept, objectifies and consolidates various aspects of political and legal reality. In this regard, it is not possible to give an unambiguous and comprehensive definition of constitutionalism. It is more appropriate and correct to characterize constitutionalism, applying an integrated approach to its nature, defining it through the principles underlying it and its qualitative characteristics, taking into account the fact that it is the institutional basis of the political order, which, in turn, ensures stable development of the political process. Political research is based on the fact that constitutionalism is not only a problem of political and legal sciences, but also a problem of modern practice in the functioning of political systems and political processes. And here, society and the state and other political institutions associated with them (political parties, associations of social groups, etc.) always act as the main ones in the functioning of the political system, because they are the main actors, on the nature and level of their interaction, on which the mainstream and dynamics of modern political processes330. In modern democratic societies, the interaction of these basic institutions is ultimately aimed at the formation of a civil society, the creation of a legal and social state and social and political stability in society. These political processes within the framework of the existing political system need a concept or mechanism for implementation, which in this case is constitutionalism.

329 B.N. Topornin Russian constitutionalism at the present stage. - Moscow: PROTEX, 1999. - 189 p. 330 D.V. Lisitsyn Russian constitutionalism as a model of interaction between society and the state: dis. .... Cand. polit. sciences’. - Stavropol, 2004. - Pp. 68-69. LEADERS OF CONSTITUTIONAL REVIEW BODIES 205

From the presented set of definitions of constitutionalism, it can be seen that the concept of “constitutionalism” is considered as multi-level, combining various aspects: both political and ideological, methodological and legal. These concepts and definitions are based on historical traditions and theoretical concepts, and they trace the process of interaction between government and civil society, the essence of modern public authority, and the inseparability of the state from society. And constitutionalism is a device of the whole society, expressed in the system of public-law and private institutions, principles and practice of their implementation. The historical and political aspect of the study of constitutionalism in the context of the political history of the Tajik people shows that the ideas of constitutionalism are inextricably linked with the history of the state of the Republic of Tajikistan. There are also many political and legal sources and scientific works containing ideas of constitutionalism, such as: the role of the individual sovereign in society and the state, the recognition of natural human rights: the right to independently determine their attitude to religion, tolerance for other religions, equality of citizens, their participation in public affairs, the basis of statehood and public affairs, etc. However, constitutionalism as a political, legal and social category, a universal institution and a product of world civilization, in particular European and American culture, entered the theory and practice of Tajik statehood in the process of borrowing it from Russian constitutionalism. In this regard, it is defined as borrowed for Tajikistan, but with its inherent public-imperious, socio-cultural, and moral-ethical principles. For the Republic of Tajikistan, which has become independent, the problem of re-evaluating some of the political, legal and spiritual values of​​ the former socio-political and economic systems and the future state, and its development strategy, turned out to be extremely important, which objectively prompted the political leadership of Tajikistan political, legal and socio-economic views and concepts. 206 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Among these views and doctrines, constitutionalism as a sociopolitical and legal institution that unites and accumulates in itself a multitude of generally accepted democratic values, became the ideological basis, the value principle and the fundamental principle of political reorganization of Tajikistan. Therefore, for Tajikistan, the development of scientifically based means capable of ensuring its democratic development, political stability in society, the formation of an effective political system and the strengthening of a multi-party system remain relevant. That is, in all the variety of models of political structure, Tajikistan as a sovereign state, must find its own way and scientifically comprehend and develop a strategy for the development of modern political processes. Speaking about the development of constitutionalism in the Republic of Kazakhstan, it is especially noted its historical aspects and roots, which in the form of customary law were formed in the depths of the nomadic civilization in Kazakhstan. Constitutional legal acts of Kasymkhan (XVI century), Zheti jargy of Taukhan (XVII century), the program of the Alash party, the constitution of Soviet Kazakhstan 1926, 1937, 1978. et al, indicate the presence of elements of constitutionalism in the early period of the formation of the statehood of the Kazakhs331. And A. Kukeev is justified in the fact that “the new constitutional model of the Republic of Kazakhstan relies on fundamental democratic value orientations in the political, legal, and socio-economic life of the society, in which the world experience of democratic constitutional development is most productive, critical understanding of modern democratic experience is a necessary condition for the implementation of the Constitution, along with taking into account traditions, mentality and other features of Kazakhstan about the people”332.

331 Zh. Telembayev Constitution as a basis for the development of Kazakhstan’s statehood and stable progressive development of the country. Zanger. Journal of law of the Republic of Kazakhstan No. 8 (133) Tamyz / August 2012. P. 83; Amanzhol Nurmagambetov, the Origins of Kazakhstan’s consti- tutionalism. Electronic resource shttps: // www. kazpravda. kz/ articles/ view/istoki-kazahstanskogo- konstitutsionalizma. date of visit June 14, 2019. 332 A.K. Kukeev Constitutionalism in the Republic of Kazakhstan: concept and meaning/ / Questions of modern jurisprudence: sat. St. on mater. LXIX international. science- prakt. Conf. No. 1(63). - No- vosibirsk: Sibak, 2017. - Pp. 29-33. https://sibac.info/conf/law/lxix/67653, accessed June 13, 2019 LEADERS OF CONSTITUTIONAL REVIEW BODIES 207

Based on the importance and relevance of constitutionalism in the development of the foundations of the state and political structure of Kazakhstan, constitutionalism is defined as a set of constitutional political and legal theories, which contain knowledge about the Constitution as the Basic Law of the state, constitutional democratic and legal state, man as the highest state values, constitutional design of the most important state- legal values ​​and institutions, as well as methods and ways to implement the principles, norms, and institutions333. In its Message on the state of constitutional legality in the country dated June 9, 2017, the Constitutional Council of Kazakhstan, based on a deep analysis of Kazakhstani constitutionalism and the state of constitutional legality, notes that “the Republic of Kazakhstan is an example of successful approval of modern constitutionalism. The content of the Basic Law corresponds to the demands of the socio-economic, political, cultural, humanitarian and other spheres of life of the activities of each person, society and state, the priority course of the country334.” Thus, Kazakhstan’s constitutionalism and the 2007 and 2017 Constitutional reforms carried out in Kazakhstan in 2007 and 2017 and the Plan of the Nation of 2015 predetermined the conceptual approaches of the development of Kazakhstan for many years. They accumulate the interests of the people, society and the state of the Republic of Kazakhstan. Based on the foregoing: 1) The definition of the concept of constitutionalism, as well asthe identification of its laws, socio-political preconditions, features of formation and development, influence on the formation of the political system and the separation of state power are of paramount importance for the socio- political processes in Tajikistan, and they should identify Tajikistan as a truly democratic state and civil society. 2) Tajikistan, being a democratic state, follows the path of further democratization of the socio-political life of Tajik society, and democracy as a political regime and social – political phenomenon based on constitutionalism

333 See: Ibid. 334 Bulletin of the Constitutional Council of the Republic of Kazakhstan. Issue-30. Astana-2017. Page 22. 208 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY is perceived as the most popular form of power organization. This form of organization of power comes from the process of forming the necessary political institutions and practices, the use of which allows the society to determine effective ways of developing a democratic state and the interests of civil society. LEADERS OF CONSTITUTIONAL REVIEW BODIES 209

Erkinbek MAMYROV Chairman of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic (2016-2019), Honoured lawyer of the Kyrgyz Republic CONSTITUTION - IS THE BASIS OF THE SOCIETY AND STATE MODERNIZATION

he development of the Kyrgyz state confirms the general rule of our times: each country, considering itself civilized, has its constitution. And this is legitimate. The Constitution is significant and necessary for the modern state, first of all it is the basis of the legal system, definingT the main directions of the legislation development, in accordance to which the state and society live. There are practically no exclusions today. Even Great Britain, that has no single codified Basic law, possesses the complex of juridical acts, beginning from “Habeas corpus act” and “Bill of rights” as well as traditions, constituting in conjunction its constitution. Moreover, 210 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY for XX century, especially its second half, and the beginning of ХХI century the renewal of the constitutional structure of many countries, including the countries of the “old democracy”. This is dictated by serious political and social changes, having place in the whole world, conditions of the new times. The new edition of the Constitution of the Kyrgyz Republic, adopted at the referendum in June 27, 2010 after the April revolution, obviously, played the important positive role in stabilization of the political situation and consolidation of the kyrgyz state and society. In the new wording of the Constitution social values and principles that determine the development of the kyrgyz state and society were clarified; substantially revised section dealing with the rights and freedoms of man and citizen; strengthened the role of Parliament and head of Government; established the Government’s accountability to Parliament; limited powers of the head of state and the possibility of re-election for another term; laid the foundations for judicial reform. Of course, it is impossible to state all the advantages of the Constitution of the Kyrgyz Republic in one article. In General, it can be noted that the main reforms in our country were carried out on the basis of the 2010 Constitution. The years that have passed since the adoption of the country’s Constitution have shown that this document is valid and provides stability in the state and society. Every person, whether he is aware of it or feels it directly or indirectly, enjoys this stability every day. No matter what difficult political and economic situations our country is in, it is the Constitution of the Republic that ensures the movement of the state forward, the preservation and protection of the standards that are defined by this document. Of course, it doesn’t always work out the way we would like it to. But, probably, in any country of the world it is not possible to create conditions satisfying absolutely everyone. However, today’s realities confirm that the stage has passed when we spoke about the declarative nature of the provisions of the Basic law. Here I would like to emphasize, as it was fairly noted by the Chairman of the Constitutional Court of RF V.D. Zorkin: “The special importance of the Constitution consists in the fact that it is the “supporting framework” LEADERS OF CONSTITUTIONAL REVIEW BODIES 211 of the law pyramid. If this framework becomes weak or broken even for a time being- the whole legislative system hangs up in air and then turns into amorphic, legally incompetent and contradicting “legal porridge”. We couldn’t but agree with this opinion as nonfulfillment of these requirements of the Constitution or weakening of its effect by ignoring its separate positions is one of the most serious threats of the state existence. In consequence of which, in modern life of global changes, the understanding of the basic tendencies and directions of the modernization of the constitutionally important spheres of life of the individual, society, state is one of the important tasks of the constitutional -legal science today. At the same time, the Constitution is a value-normative basis for the modernization of the state. As an act of the highest legal force, it is the highest expression of the value-legal system of society, which, receiving its constitutional form, has an impact on society and the state through rules- principles, bases, presumptions and other provisions of the most general nature, which manifest the deep characteristics, the very spirit of the Basic law. If legislation is able to activate, slow down, and restrain the development of certain economic and social relations, the Constitution organizes the system of legislation itself. It is the basis around which the axis rotates, and with which domestic legal policy and the legal system interact. Thus, the Constitution is a kind of program for the functioning and development of legislation and state institutions, a set of basic rules for interaction between the state and society, a legal fortress that protects the basic rights and freedoms of a person and a citizen in a particular state. On December 11, 2016 the referendum took place in the Kyrgyz Republic, on the results of which the constitutional amendments were approved by 80% (79,63 %) of electorate. The given amendments can be conditionally divided into next blocks. I. The first block -the consolidation of the basis of independence of the Kyrgyz Republic and recognition of the person, his life, health, rights and freedoms as the highest values of the state. 212 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

In this direction, in order to strengthen the political and legal foundations of independence and state sovereignty, the unjustified priority of some international treaties over others has been eliminated (part 3 of article 6 of the Constitution). An addition was also made (part 7 of article 26 of the Constitution), according to which the statute of limitations cannot be applied to crimes such as genocide and ecocide. This addition directly stems from the list of the highest values of our state proclaimed in the preamble of the Constitution (the person, his life, health, and his rights and freedoms), since genocide and ecocide pose an extreme threat to the very existence of a person, not to mention his rights. At the level of the Basic law, there is a provision according to which marriage can only be concluded between a man and a woman (part 4 of article 36 of the Constitution). This provision directly excludes values that are alien to the kyrgyz society, which corresponds to the historical culture of the people. In the face of global extremism and terrorism, in order to prevent threats to national security the norm, allowing the possibility of deprivation of Kyrgyz nationality in cases and order established by constitutional law (part 2 article 50 of the Constitution) was introduced. II. The second block of the amendments is directed to the streamlining of the interaction of the branches of state power. The six years experience of the parliamentarism showed that whatever fractions the coalition of majority would consist of in juridical sense the very existence of the coalition always becomes threatened by virtue of the absence in the Constitution of norms, guaranteed the steadiness of the parliamentary coalition. In this connection, the Constitution stipulates the norm, regulating the exit of the fraction the parliament majority coalition. Thus, in order to leave the parliamentary coalition, the fraction must make a decision by a majority vote at least of two-thirds of its list membership. At the same time, in order to ensure the individual responsibility of each deputy, it was provided LEADERS OF CONSTITUTIONAL REVIEW BODIES 213 that the decision was signed by the deputies themselves (article 70 of the Constitution). In order to strengthen the provisions of this amendment, article 75 of the Constitution has been amended, according to which the collapse of the parliamentary majority coalition entails the need to confirm the powers of the Toraga Jogorku Kenesh (speaker of Parliament) by a majority vote of the total number of members of Parliament. Amendments to the Constitution provide for the preservation of the deputy mandate for deputies appointed to the positions of Prime Minister or first deputy Prime Minister (article 72 of the Constitution). This practice of combining positions is taken from the practice of countries with a successful parliamentary form of government and is not a novelty in the theory of separation of powers. The amendments made to the Constitution order the interaction of the parliament and government in the sphere of formation of the republican budget, taxes. Thus, the laws of the republican budget, taxes are liable to obligatory signing, except the cases of the address of the Prime-Minister on the returning such laws without being signed by the President of the country (part 2 of the article 81 of the Constitution). The given positions are rather actual for the developed economic situation in the country and allow to exclude the possibility of adoption by the parliament of the populist’s laws. In order to strengthen the independence and autonomy of the Government, the Constitution provided for the provision that the Prime Minister should raise a question of confidence in the Government before the Parliament. At the same time, such a question may be raised by the Prime Minister twice within a year (part 1 of article 86 of the Constitution). However, if the Parliament refuses to trust the Government, the head of state may decide to dismiss the Government or call early elections to the Jogorku Kenesh. III. The third block of amendments is directed to the improvement of the constitutional basis for reforming the judicial and law enforcement system of the country. 214 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

In the frames of given direction the amendments have been made, that provide for a different procedure for the formation of a Disciplinary Commission under the Council of judges (article 95 of the Constitution). This body has the right to make an independent proposal for the release of a judge in case of violation of the requirements of integrity and consent to bringing judges to criminal and administrative responsibility imposed by the court. These amendments are proposed for a number of reasons. Thus, the Council of judges consists exclusively of judges and this may become an obstacle to an objective approach to the responsibility of their colleagues. Therefore, the Council of judges is excluded from the list of institutions that consider bringing judges to justice (violation of integrity). Instead, a body is created on a parity basis by the President, the Jogorku Kenesh (Parliament) and the Council of judges (part 9 of article 95 of the Constitution). This body is not bound by corporate solidarity and is therefore able to fairly objectively consider the issue of the judge’s responsibility. In addition, the amendments to part 2 of article 96 of the Constitution provide for mandatory explanations of the Plenum of the Supreme court on judicial practice for all courts and judges of the Kyrgyz Republic. The explanation is of an auxiliary nature in relation to the law. The essence of these explanations is to give certainty to the ambiguous, unclear, evaluative, contradictory or incomplete content of laws and other legal acts in order to overcome law enforcement difficulties and defects in judicial practice. As part of this direction, changes were made that provide for a different procedure for the formation of a Disciplinary Commission under the Council of judges (article 95 of the Constitution). This body has the right to make an independent proposal for the release of a judge in case of violation of the requirements of integrity and consent to bringing judges to criminal and administrative responsibility imposed by the court. No less significant is the provision that the Prosecutor General ofthe Kyrgyz Republic will be dismissed from office by at least half of the votes of LEADERS OF CONSTITUTIONAL REVIEW BODIES 215 the total number of deputies of the Parliament, and not by one third, as it was stipulated earlier in the Constitution. Thus, there is a certain stabilization in the work of the head of the Supervisory authority. It should be noted that the changes made to the Constitution were subject to constitutional control by the Constitutional chamber within the powers established by the Constitution of the Kyrgyz Republic. In this case, the Constitutional chamber, giving the opinion to the draft Law of the Kyrgyz Republic “On amendments to the Constitution of the Kyrgyz Republic”, considered it as a whole and each of its provisions on compliance with fundamental rights and freedoms of man and citizen, the admissibility of their limitations; the principles of democratic, legal and secular state; the procedure of amending the Constitution under article 114 of the Constitution of the Kyrgyz Republic and gave a positive conclusion, because of the lack of laws which violate these provisions. At the same time, the Constitutional chamber outlined some positions that should be taken into account when drafting and adopting draft laws aimed at implementing constitutional provisions by the Parliament. Thus, the Constitution and the constitutional doctrine of modernization of the statehood, following it and being developed in the decisions and opinions of the Constitutional chamber, acts normative-doctrinal basis for the formulation, implementation, evaluation, modification and changes in tactical and strategic decisions aimed at transforming society and the state. As a result of the constitutional reforms for our country there is the extremely responsible period of development of the law in all the spheres of social life. The primary task is to constitutionalize existing legal relations and bring existing legal acts into line with constitutional legal regulations. At the same time, a significant part of the Constitution’s potential has not yet been fully realized and is designed to expand its content and implement it more fully as the country’s economic development and social modernization take place. 216 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

In conclusion, I would like to note that in modern scientific research, the efforts of scientists should not be aimed at finding imaginary gaps and contradictions, defects in the text of the Constitution, but at developing mechanisms for implementing its provisions, protecting and safeguarding the rights and guarantees it provides. LEADERS OF CONSTITUTIONAL REVIEW BODIES 217

Farkhat HUSNUTDINOV Chairman of the Constitutional Court of the Republic of Tatarstan THE INFLUENCE OF THE CONSTITUTION OF THE REPUBLIC OF TATARSTAN UPON FORMATION AND DEVELOPMENT OF THE MODERN SOCIETY

he Constitution of the Republic of Tatarstan335 —is the most significant political and legal document, reflecting the results of the radical changes, which took place in the country and which laid the basis of the new state system and social development. TThe protection of human rights enshrined in the Constitution, the development of a market economy based on social partnership and the maintenance of peace and security are achievable if the state is able to

335 Constitution of the Republic of Tatarstan of 06.11.1992 (in this form the document was not pub- lished) / / Vatanym Tatarstan.- 2002.- 30 APR.- No. 85-86; Republic of Tatarstan 2002.- 30 APR.- No. 87-88 (the original text of the document is published in the above editions). For information about publishing the documents that create this edition, see the references for these documents. 218 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY create conditions for their implementation. And the strong state is the power based on the law, that is the legal state. The progressive role of the Tatarstan Constitution first of all consists in the fact that it for the first time approved the activities of state bodies on the principles of the rule of law, in which the relations of the citizen and the state are based on the priority of human rights as the highest social value336. The important feature of the Constitution of Tatarstan is that it consolidated the notion of the social state and defined the social policy, aimed at the creation of the relevant infrastructure and provision of support measures for more vulnerable categories of citizens. The ultimate goal of this policy is to ensure a decent life for people and meet their needs. At a time of challenges, the Constitution streamlined the process of socio- economic transformation in the region, directed it towards the creation of a social market economy, combining the freedom of economic activity with the principles of social partnership and state regulation of economic development. Stipulated in the Constitution of Tatarstan the model of the economic structure and the role of the state in economics proves its sustainability also at the present stage of the development of the republic. The norms of the Constitution legally consolidated the diversity of the recognized forms of the property and became legal instruments in the process of the acknowledgment of the affiliation to the republic of the main share of the state property, allocated on the territory of the Republic. It allowed to support the work of the important enterprises, elaborate own industrial and agricultural policy, develop and realize the program of targeted social assistance. As a result, Tatarstan, which has rich natural and labor resources, powerful industry and developed agriculture, has effectively and at low-cost carried out economic reforms, has become one of the most economically dynamic regions of Russia. Currently, large-scale construction is underway in the Republic, new production and transport facilities are put into operation, the

336 Preamble of the Constitution of the Republic of Tatarstan of 06.11.1992 (in this form the docu- ment was not published) / / Vatanym Tatarstan.- 2002.- 30 APR.- No. 85-86; Republic of Tatarstan 2002.- 30 APR.- No. 87-88 (the original text of the document is published in the above editions). For information about publishing the documents that create this edition, see the references for these documents. LEADERS OF CONSTITUTIONAL REVIEW BODIES 219 road network is actively developing, new petrochemical and other industries are being built. With view to promote the growth of economics, trade and attracting the investments Tatarstan actively participates in the international and external connections, attracting the investments, has its representative offices in different countries, concludes treaties with foreign partners. The Republic has consistently pursued a policy of promoting dialogue between East and West, the Islamic world and Europe. In particular, relations with Kazakhstan are actively developing, experience is exchanged in the implementation of successful industrial projects, as well as increasing of cooperation in the oil refining industry. The Constitution of Tatarstan played a huge role in the revival of Tatar language and culture. In continuation of the policy aimed at preserving and supporting national languages in the Republic of Tatarstan, it remains important to find a common opinion with the Federal center and maintain optimal conditions for the development of native languages of the peoples living on the territory of the Republic, as well as languages recognized by the Republican Constitution as state languages.The Republic has consistently pursued a policy of promoting dialogue between East and West, the Islamic world and Europe. In particular, relations with Kazakhstan are actively developing, experience is exchanged in the implementation of successful industrial projects, as well as the expansion of cooperation in the oil refining industry. The initiative of the State Councilor of the Republic of Tatarstan M. Shamshiyev, supported by the President of the Russian Federation V.V. Putin has become an important project for the implementation of this task on creation of a network of polylingual educational complexes in the capital and a number of large cities of Tatarstan by 2022. The maintaining of the international and inter-religious peace and consent remains amongst the number of the main tasks. The concept of the state 220 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY national policy in the Republic of Tatarstan337, adopted with the acception of the federal law is aimed at preservation and support of the ethno-cultural and lingual diversity of the people, strengthening of their moral commonality. Historically, our Republic is a region of housing of people of different nationalities and religions, representatives of the two largest confessions of Russia - Orthodoxy and Islam-are approximately equal in number. On the basis of democratic ideas and principles laid down in the Constitution of Tatarstan, a well-designed national policy in the Republic managed to support the development of all peoples living on its territory. Currently, more than 30 national cultural organizations are active in the Republic of Tatarstan. Tatarstan has gained great popularity as a region where its own policy of settlement of ethnic and religious relations has been developed. After the speech of the first President of the Republic of Tatarstan M. Shaimiev at the forum of the Kennedy school of Harvard University (United States of Am erica), the scientists of this institution called this policy the “Model of Tatarstan338 Through the efforts of the Republican Fund for the revival of historical and cultural monuments of the Republic of Tatarstan, historical and cultural places of unity and worship of our ancestors are again acquiring importance. In the process of rebuilding the monuments of the ancient Bolgar and island- town Sviyazhsk. On their territory there is a modern infrastructure, but what is most important is that the spiritual life is reviving. New churches and mosques - places of spiritual unity of believers - are being recreated and built widely. Speaking about Tatarstan as a region with the policy aimed at peaceful and stable cooperation of different peoples, cultures and religions, President of the Russian Federation Vladimir Putin has repeatedly noted that the course

337 The RT President’s decree of 03.07.2008 № UE-312 (edition of 06.05.2019) “On approving the state policy Concept in the Republic of Tatarstan” (in this document has not been published) // Republic of Tatarstan.- 2008.- July 5.- No. 135 (published without appendices); Vatanym Ta- tarstan.- 2008.- July 9.- No. 138 (published without annexes); Collection of resolutions and orders of the Cabinet of Ministers of the Republic of Tatarstan and regulations of the Republican Executive authorities.- 2008.- July 23.- No. 28.- Article 1060; Records of the State Council of Tatarstan.- 2008.- No. 7.- CH. III.- Article 908 (the original text of the document is published in the above edi- tions). For information about publishing the documents that create this edition, see the references for these documents. 338 http://history-kazan.ru/kazan-vchera-segodnya-zavtra/retrospektiva/novejshaya-istoriya-s-avgus- ta-1990-/8561-1141. LEADERS OF CONSTITUTIONAL REVIEW BODIES 221 developed by Tatarstan contributes to the full strengthening of the Federation. It is commonly believed, that in the renewed democratic Russia, Tatarstan played the key role in formation and development of the Federative relations. At difficult period of the beginning of 90th the issues of state construction and choice of such a way of relations between centre and regions of Russia, that would maximally correspond the needs of the country’s development at the new stage of its history were urgent. Under those conditions the adoption of the Constitution of Tatarstan, legal consolidation of its new status marked a milestone in the development of statehood of not only of our republic, but also of all the multinational people of the Russian Federation. Approved by the national referendum on March 1992 and introduced into Constitution formulations339 that consolidate the state - legal status of Tatarstan, meant the refusal of the past, outdated model of autonomization of russian republics. The Tatarstan Constitution, adopted a year earlier than the Federal Constitution, was the guarantee to the transformation of Russia on the basis of truly Federal relations. In his annual address to the State Council of the Republic of Tatarstan, President of the Republic of Tatarstan R.N. Minnikhanov noted that the adoption of the Declaration on State sovereignty of the Republic in 1990 was an important event that determined the development of modern Tatarstan. Taking responsibility for its own future, Tatarstan, as one of the dynamically developing regions of the country, has built trusting relations with the Federal center and successfully develops cooperation with many regions and foreign partners340. Accumulated by our Republic experience of transformation of federative relations became demanded while preparing by the working group of the State Council of the Russian Federation under M. Shamsiyev of the competence deliniation between central and regional powers. The search for the optimal and most effective distribution of powers, not only between the Federation and its subjects, but also local self-government, with the provision of appropriate material and technical base, required serious

339 Constitution of the Republic of Tatarstan) from 06.11.1992 (in this form the document was not published) / / Vatanym Tatarstan.- 2002.- 30 APR.- No. 85-86; Republic of Tatarstan 2002.- 30 APR.- No. 87-88 (the original text of the document is published in the above editions). For informa- tion about publishing the documents that create this edition, see thereferences for these documents. 340 http://president.tatar.ru 222 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY amendments to Federal and regional legislation. And this process, especially in terms of the development and support of local self-government, continues. The adoption in November 1992 of the Constitution of the new democratic Tatarstan is inextricably linked to the principled position of the first President M. Shaimiev, who during the development of the Basic law was the head of the Constitutional Commission, and then the conciliation Commission to finalize the draft. The draft Constitution was the subject of intense discussion among representatives of various political forces, and not all participants were ready to conduct it in a constructive way. Proposals were made to delay the adoption of the Constitution, to postpone it to a later date, which threatened to continue legal uncertainty and instability in society. It took the political will and endurance of the President of the Republic, his ability to find acceptable compromises and achieve agreed solutions, as a result of which the Constitution of Tatarstan was adopted, which determined the further way of its development. Of course, writing down the correct norm in the Constitution and solemnly proclaiming it is not enough to build a democratic legal and social state. It is also important to take all measures to ensure that its implementation is supported by a system of guarantees, organizational and legal procedures. It was this circumstance that drew the attention of the Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin, noting that ... a living Constitution is not only a text, it is also laws and all law-enforcement practice. Therefore, what is important not only the text of the Constitution itself, but also its real implementation, what is so much significant is not the list of rights and freedoms, but how they are implemented”341. To be an affectively functioning law, the Constitution must be provided with legal protection. Under the democratic conditions, only the judicial constitutional control can provide in full capacity the effective protection of the Constitution, its highest legal power in the legal system. Without appropriate judicial constitutional control the Constitution can be only the declaration of the principles and intentions. In this connection, the establishment on the initiative of the President and the State Council of the Republic of

341 https://www.ippnou.ru/article.php?idarticle=002933 // Internet interview with the Chairperson of the Constitutional Court of the Russian Federation V. Zorkin LEADERS OF CONSTITUTIONAL REVIEW BODIES 223

Tatarstan instead of the Committee of the Constitutional control of new state- legal institute – Constitutional Court, designed to implement the judicial constitutional control is the important factor and a big step on the way to the legal state. Adopting the decisions, the Constitutional Council of the Republic of Tatarstan by its practice states the principle of the supremacy of law, protects the rights and freedoms of the man and citizen, and the basis of the constitutional order of the republic. The decisions of the Constitutional court of the republic allow to address the deficiencies of the legislation and other legal acts in the part of violation of the constitutional rights and freedoms of the citizens, to rectify injustices, to give constitutional precise directions to law-making and law enforcement activities. The legal positions of the constitutional court, expressed in its decisions, contain a detailed definition of the actual content and meaning of the applied constitutional norms, reveal in full their relationship with other provisions of the Constitution, the norms of other legal acts, including international ones. The legal argumentation given in the court’s decisions takes into account and reflects to the maximum possible extent the changes in the content of the constitutional norms that are caused by the dynamics of the development of society and the state, as well as a certain “renewal” of the Federal principles in relations between Tatarstan and the Federal center. Informatization of modern society inevitably entails the need to provide services and information to the population through the application of informational and telecommunication technologies, in particular the Internet. About ten years ago, after the adoption of Federal law No. 228-FZ of July 27, 2010 «On amendments to the arbitration procedure code of the Russian Federation»342, the term «electronic justice» was processed, the principles of it are practiced in the judicial system. In their desire to correspond to the modern tendencies of improving the

342 Federal law of 27.07.2010 No. 228-Federal law (ed. of 28.06.2014) “On amendments to the Ar- bitration procedural code of the Russian Federation” (in this form the document was not published) / / WG.- 2010.- 2 Aug.— NO. 169; SZ THE RUSSIAN FEDERATION.- 2010.- 2 Aug.- No. 31.- Article 4197 (the original text of the document is published in the above editions). For information about publishing the documents that create this edition, see the references for these documents. Husnutdinov F.G. Phased development of e-justice / G.F. Khusnutdinov // the Russian justice.- 2019.- No. 9.- Pp. 25-29. 224 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY judicial system work, the Constitutional Court jointly with the Ministry of informatization and communication supported by the head of the Republic the service of lodging the appeals to the court by filling in the special forms on the official site of the court. Law of the Republic of Tatarstan No. 76-ZRT of October 26, 2018 “On amendments to articles 40 and 41 of the Law of the Republic of Tatarstan “On the Constitutional Court of the Republic of Tatarstan” was adopted in order to strengthen the guarantees of the right to judicial protection through constitutional proceedings by creating the possibility of lodging an appeal to the constitutional court of the Republic of Tatarstan in electronic form”, which secured the right to appeal to the constitutional court of the Republic of Tatarstan in electronic form by filling in a special form on the official website of the constitutional court of the Republic of Tatarstan in the information and telecommunication network “Internet”. Thus, the Republic of Tatarstan became the first subject in the Russian Federation, which in practice implemented the introduction of elements of “electronic justice” in the framework of the constitutional process, providing an additional opportunity to implement the constitutional right of citizens to judicial protection343. The successful social - political and economical reformation, is possible exclusively under conditions of formation of the strategic planning at the state level, minding the mid-term and long- term perspectives of the society development. Following the intended course for construction of politically, economically, and socially developing society, on the behalf of the president r. Minnihanov the strategy of social and economic development of the republic of tatarstan for the period to 2030344. Combination of development of the specified strategy and formation of new system of strategic planning taking into account norms

343 Husnutdinov F.G. Phased development of electronic justice / F. G. Khusnutdinov / / Russian jus- tice.— 2019.- No. 9.- Pp. 25-29. 344 Law of the Republic of Tatarstan of 17.06.2015 No. 40-ZRT (ed. dated 05.04.2019) “On ap- proval of the strategy of socio-economic development of the Republic of Tatarstan until 2030” (in this form the document was not published) / / Official portal of legal information of the Republic of Tatarstan http://pravo.tatarstan.ru-2015.- June 17 (Law); Republic of Tatarstan.- 2015.— On June 18.- No. 83 (Law); Vatanym Tatarstan.- 2015.- June 20.- No. 87 (Law); Official Internet portal of legal information http://www.pravo.gov.ru-2015.— On June 22.- No. 1600201506220002; Records of the State Council of Tatarstan.- 2015.— No. 6.- Part II.- Article 521 (the original text of the docu- ment is published in the above editions). LEADERS OF CONSTITUTIONAL REVIEW BODIES 225 of the federal law of june 28, 2014 no. 172-FZ «About strategic planning in Russian Federation»345 it is a distinctive feature of consistently developing modern Tatarstan. R. Minnihanov in his address to to the citizens of the republic noted, “Our republic has been always distinguished by healthy ambitiousness and mature pragmatism”. These qualities were reflected in the Strategy of the social- economic development of the Republic up to 2030. It was elaborated with participation of all the ministries, agencies, large enterprises, organizations, associations, municipalities, interested residents of the Republic”346. Following this principle, Tatarstan has developed forty short-term programs for the development of various sectors of life for the next 5-10 years, the precise implementation of which should lead to even more comfortable living conditions for the population. They include, first of all, the program for the development of information and communication technologies “Open Tatarstan” for 2014-2020347. The implementation of this Programme through application of information and telecommunications technologies is aimed at providing access of citizens and organizations in state, municipal and socially important services based on ICT; improving the quality of education, medical care, social protection of the population; improving the efficiency of public administration and interaction of bodies of state power and local self- government and civil society in the Republic. This list also includes programs to build an electronic state, digitalize society, provide affordable housing for residents of Tatarstan, support more socially vulnerable categories of the population, improve education in the Republic and so on.

345 Federal law of 28.06.2014 No. 172-FZ (ed. of 31.12.2017) “On strategic planning in Russian Federation” (in this form the document was not published)/ /Official Internet portal of legal infor- mation http://www.pravo.gov.ru-2014.- June 30; WG.- 2014.- July 3. NO. 146; SZ THE RUSSIAN FEDERATION.- 2014.- June 30.- No. 26.- Part I.-Article 3378 (the original text of the document is published in the above editions). For information about publishing the documents that create this edition, see the help for these documents.the document published in the above publications). http://tatarstan2030.ru/ 346 http://tatarstan2030.ru/ 347 Resolution of the CM RT of 17.12.2013 № 1000 (ed. from 25.01.2019) “On approval of the State program” Development of information and communication technologies in the Republic of Tatarstan “Open Tatarstan” for 2014-2021 “” (in this form the document was not published) / / Collection of resolutions and orders of the Cabinet of Ministers of the Republic of Tatarstan and regulations of the Republican Executive authorities.- 2014.- 14 Jan.- No. 3.- Article 0051 (the original text of the document is published in the above editions). For information about publishing the documents that create this edition, see referances for these documents. 226 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The experience of constitutional construction in Tatarstan, which was first implemented in the Republic a quarter of a century ago, testifies to the significant role of the Constitution in the development of Tatarstan statehood and society as a whole. And time confirms that the Constitution of Tatarstan is a guarantor of strengthening political, economic and social stability, achieving interethnic harmony in the Republic. IІІ REPRESENTATIVES OF THE ACADEMIC COMMUNITY 228 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Suren AVAKYAN Head of the Department of Constitutional and Municipal Law of the Faculty of Law of the Moscow State University named M.V. Lomonosov, Doctor of law, professor, Honored worker of science of the Russian Federation, Honored lawyer of the Russian Federation ROLE OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN IN THE FORMATION AND DEVELOPMENT OF MODERN CONSTITUTIONALISM: SUCCESSFUL COMMONWEALTH OF NORMS AND REALITY

he anniversary of any Constitution implies an assessment of at least two factors: first, how much it reflected the general civilizational patterns of socio-political development, and secondly, what contribution this Constitution makes to the formation of ideas and practicesT of constitutionalism as a whole, as a world values. It can be noted with satisfaction that the Constitution of the Republic of Kazakhstan gives grounds for positive conclusions on both these positions. We spoke about it in the article published five years ago, having resulted in justification of our conclusion a number of arguments about which it is quite possible to speak and in connection with new anniversary. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 229

First of all, the fact that the Constitution enshrines the main parameters of the constitutional system of Kazakhstan is unchanged: it affirms itself as a democratic, secular, legal and social state, the highest values of which are an individual, his life, rights and freedoms (paragraph 1 of article 1 of the Constitution). The Republic recognizes ideological and political diversity (article 5, paragraph 1). State and private property are recognized and equally protected in Kazakhstan (article 6, paragraph 1). Section II «Man and citizen» establishes the most important foundations of the constitutional status of the individual. The Constitution reflects rather detailed rules of the organization and activity of public authorities of the Republic. Scientists often discuss the question: are the provisions of the Constitution the current law or is it only the basis, suggesting the need for further current regulation. With regard to the Constitution of the Republic of Kazakhstan, the constitutional regulation is carried out very competently, it creates a reliable Foundation for political, social and state development of the Republic of Kazakhstan. To a lesser extent many provisions of the Constitution of the Republic, which we find very interesting Kazakhstan’s contribution to the overall formation of modern constitutionalism, attract attention no less. In the 2015 article, due to the compactness of the material, attention was focused on a number of points. 1. Article 1 paragraph 2 of the Constitution is attracting growing interest: «The fundamental principles of the activity of the Republic are public concord and political stability; economic development for the benefit of all the nation; Kazakhstan patriotism and resolution of the most important issues of the affairs of state by democratic methods including voting at an all-nation referendum or in the Parliament». We believe that on social harmony and political stability reflected in the Basic law that they are key, and the provisions on ideological and political diversity should also be interpreted in view of them. Thus, the Republic, admitting different views and their organizational design, does not assume abuses leading to infringement of interests of the people of Kazakhstan. 230 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Hence, another important postulate, reflected in the same place – is about Kazakhstan patriotism, which, presumably, implies the elevation of the interests of the Motherland over political and other preferences. 2. The undoubted positive aspect of the Kazakhstan constitutional model is the use of the category of «current law». According to article 4 paragraph 1 of the Constitution: «The current law in the Republic of Kazakhstan is the norms of the Constitution, relevant laws, other normative legal acts, international treaty and other obligations of the Republic, as well as regulatory decisions of the Constitutional Council and the Supreme Court of the Republic». First, it is clear that the category of «current law» is unambiguous – these are actually existing acts in their totality, they should be applied, on this basis a combination of norms and law enforcement practice is formed. Secondly, the Republic has given a clear answer to the question, which in other countries, including Russia, is the subject of discussion – whether to include in the circle of rulemaking acts of higher, so to speak, the courts. Obviously that they sometimes significantly predetermine the content of the law, so they are reasonably included in the scope of the «current law» of the Republic of Kazakhstan. Thirdly, it is also important that the category of «current law» unites all normative material, and thus connects all its creators. In connection with the latter circumstance, we also draw attention to the success of Kazakhstan’s position in relation to international sources. In addition to what has been said above, we emphasize the role of paragraph 3 of article 4: «International treaties ratified by the Republic have priority over its laws and shall be applied directly, except in cases where it follows from an international treaty that requires the enactment of a law». Here we do not see popular in other countries, including in the Russian Federation, and at the same time incomprehensible words about «generally recognized principles and norms of international law». In addition, it is clear that «generally recognized» means recognized by this state. From here, the words of the Kazakhstan Constitution are quite clear-officially recognized international acts and become part of the existing law of the state. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 231

3. As you know, Kazakhstan is a multinational and multi-confessional state. In constitutional and legal terms, this is quite well reflected in a number of categories. Of these, we would highlight the following. First of all, it is the proclamation of equality of all before the law and the court (article 14). Such a rule is traditionally included in constitutional texts. But in particular I would like to note article 7, which reads: «1. The Kazakh language is the official language in the Republic of Kazakhstan. 2. Russian is officially used in state organizations and local self-government bodies on a par with Kazakh. 3. The state cares about creating conditions for the study and development of languages of the people of Kazakhstan». It is known that the problem of language (s) often becomes very painful for individual States. Kazakhstan has avoided the vast majority of such problems precisely by the wisdom of its constitutional language policy. For a country populated by multi-ethnic peoples, especially in the situation of fluent by the vast majority of citizens belonging to the Kazakh nation, the strategy of bilingualism in essence not only did not allow any serious conflicts to arise on this basis, but also ensured peace in interethnic communication. Kazakhs, as well as the leaders of the state and scientists of the Republic, quickly realized that the knowledge of two or more languages enriches people, their culture and outlook. Despite the brief formulation of freedom of conscience in article 22 of the Constitution, the practice of Kazakhstan’s multi-confessionalism is widely known. It is not by chance that the Republic often becomes a platform for international interfaith meetings. 4. One of the remarkable features of Kazakhstan’s constitutionalism, which, in our opinion, is worthy of imitation, is the combination of rights and freedoms in the status of a person and a citizen with the principles of obligated behavior. Despite the fact that the first article of the Constitution proclaims of man, his life, rights and freedoms the highest values of the Republic the factor of «response» of such obligated behavior on the part of the individual is also fixed in the Basic law. 232 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

We emphasize this – it is not just about the duties of a person and a citizen, it is, as they say, by itself. We draw attention to a number of norms: everyone is obliged not only to observe the Constitution and legislation of the Republic, to respect the rights, freedoms, honor and dignity of other persons, but also to respect the state symbols of the Republic (article 34); according to article 6, state and private property are recognized and equally protected in the Republic of Kazakhstan (this sequence of terms is very impressive to us, since the property of all citizens of Kazakhstan – state property-is in the first place); but further, in paragraph 2 of article 6 is followed by the significant words – «property obliges, and its use must simultaneously serve the public good» (i.e. it says that there are a number of Western constitutions, and about what the Russian scientists expressed regret – that’s not in the Constitution); the consolidation in article 22 of the freedom of conscience is accompanied by an indication that its implementation must not be a condition or limit universal human and civil rights and responsibilities before the state. 5. The Constitution enshrines: «the Republic of Kazakhstan is a unitary state with a presidential form of government» (article 2, paragraph 1). Here it is noteworthy that the issue, which often becomes the subject of discussions of scientists and politicians, is clearly and unambiguously resolved. The author of these lines is constantly perplexed by expressions such as «semi- presidential Republic», «parliamentary-presidential Republic». It is not uncommon to see conditionality even in the category of «parliamentary (or parliamentary) Republic», especially when Germany is cited as an example, since realists prefer to call this country a «Chancellor’s Republic» seeing in the modern German Chancellor a strong reflection of foreign presidents. Thus, a half - hearted form of government is not required by the state. A strong Prime Minister, and even more so a strong President in a parliamentary Republic is no less, and may be more useful, than a few hundred parliamentarians, caught by different political vicissitudes in the Deputy corps and often incompetent both in matters of state leadership and in lawmaking. Of course, Kazakhstan’s experience of fixing the presidential form of government in the Constitution is not accidental and is harmoniously combined with the person of the leader. At the same time, it clearly shows REPRESENTATIVES OF THE ACADEMIC COMMUNITY 233 that in the conditions of the formation of a new state, the presidential rule with a successful head of state gives undoubtedly more favorable results. Those post-soviet states, which preferred a parliamentary form of government, constantly have problems of relations between the Parliament and the President, leading to both inter-governmental and street clashes. And let’s pay attention to the fact that in Kazakhstan’s unitary state there is a bicameral Parliament, and the chambers have many powers, which are carried out by the chambers themselves. However, the Constitution (article 53) provides for the grounds for holding joint sessions of the chambers. This regulation, which we find quite flexible, supplemented by the current legislative regulation, allows the chambers to discuss together important state and socio-political issues-despite the fact that the vote of the chambers is separate. Of course, the most important criterion for the implementation of the main mission of the Constitution – its usefulness for society and citizens – is the active application of provisions and norms, the adequacy of the state of the country to the proclaimed constitutional values. We are sure that the successful consolidation of the model of constitutionalism and the most important parameters of the constitutional system is the first, but not the only prerequisite for their subsequent qualitative implementation. What is needed is a verified and constantly pursued policy of the Supreme power to maintain compliance with the constitutional norms of reality, timely introduction of changes and additions to it. As is known, Kazakhstan since 1995 held three constitutional reforms (in 1998, 2007 and 2017), allowing not only to adjust certain provisions of the Constitution in the first years of operation of new state authorities, but also to substantially upgrade the state and public components of the system of popular representation, to include additional institutions to ensure the rights and freedoms of man and also to be a redistribution of total power between its branches and powers – between the highest state bodies. By and large – to agree on the norms of the Constitution and the achieved level of development of the social system. And also, to take into account the views of young people who did not have a chance in 1995 to participate in the preparation of the current Constitution. 234 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

For example, only on the positions noted above during the third constitutional reform, the Law of 10 March 2017 the Basic Law was amended as follows. Article 4, paragraph 3, reads as follows: «3. International treaties ratified by the Republic have priority over its laws. The procedure and conditions for the operation in the territory of the Republic of Kazakhstan of international treaties to which Kazakhstan is a party are determined by the legislation of the Republic». Article 39, paragraph 2, recognizes as unconstitutional any action capable of violating not only interethnic, as it was before, but also inter-confessional harmony. Significant changes have been made to the «Presidential form of government». The President handed over (transferred to Parliament, the Government, or simply excluded) about 40 powers. Parliament has been significantly strengthened as the sole legislative body, including its ability to influence the Government. The Constitutional Council received additional powers. Under the new subparagraph 10-1) of article 44 the President of the Republic «in the interests of protecting human and civil rights and freedoms, ensuring national security, sovereignty and integrity of the state, send an appeal to the Constitutional Council on consideration of the law or other legal act that came into force on compliance with the Constitution of the Republic, on giving an opinion in the case provided for in paragraph 3 of Article 91, the Constitution of the Republic of Kazakhstan». The first power transferred to the legal channel the presidential prerogative excluded by this law on cancellation of resolutions of the Government (on any bases), the second – put a barrier on the way of abuse of adjustments of the Basic Law, guaranteed observance of the expanded list of constitutional values. Strengthening of parliamentarism is a stable vector of evolution of Kazakhstan’s statehood, originating in 1998. In 2007, its socio-political foundation was sharply strengthened, and in 2017, the functions and competence of the supreme representative body were strengthened. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 235

From the standpoint of world constitutionalism, the courageous act of the President of the Republic N.A. Nazarbayev, who left the post of head of state by his own will in March 2019, is of deep respect. According to article 48 of the Constitution, the powers of the President of the Republic passed to the Chairman of the Senate K.-Zh. Tokayev, who was elected head of state at the extraordinary direct competitive elections held in the shortest possible time - in June 2017. At all stages of the transition of power, the resource of the Constitutional Council was used, which also became another guarantee of full compliance with the requirements of the Basic Law. According to the Constitution and the constitutional law, N.A. Nazarbayev, as the First President and Leader of the Nation, retained for life the positions of Chairman of the Security Council, Chairman of the Assembly of people of Kazakhstan and a member of the Constitutional Council, as well as the leader of the Nur Otan party. This is one of the components of Kazakhstan’s experience, guarantees a more effective and crisis-free functioning of the presidential form of government in the conditions of the multinational composition of the country’s population at this historical stage. The 25th anniversary of the Constitution of the Republic of Kazakhstan, the positive results achieved on its basis, further actualizes the task of ensuring the active and effective application of its provisions, which in the end will contribute to the further movement of the country on the way of historical progress. 236 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Lidiya NUDNENKO Professor of the Academy of the people’s economy and state under the President of the Russian Federation, Doctor of law, professor, Honored worker of the Highest Profession- al School of the Russian Federation THE CONSTITUTIONAL PRINCIPLES OF THE STATUS OF THE INDIVIDUAL IN THE REPUBLIC OF KAZAKHSTAN

he Constitution of the Republic of Kazakhstan amongst constitutional basis of the state and society in the article 1 proclaims the man, his life, rights and freedoms as a highest value. It is necessary to note that the notion highest value is used in the Constitution of the RepublicT of Kazakhstan only once, with reference to man, his life, rights and freedoms. This most significant constitutional norm gets its development in the principles of the constitutional status of the person – the fundamental ideas, defining the status of the individual, the character of the interrelations between the state, society, collective and individual. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 237

The primary principle of the constitutional status of the individual considers it possible to call the recognition of the rights and freedoms of the man absolute and inalienable. This principle directly comes out the article 1 of the Constitution of the Republic of Kazakhstan. It is proclaimed by the article 12 of the Constitution of the Republic of Kazakhstan, according to which the rights and freedoms shall belong to everyone by virtue of birth, be recognized as absolute and inalienable, and define the contents and implementation of laws and other regulatory and legal acts. Thus, in the basis of the constitutional status of the individual in the Republic of Kazakhstan the theory of natural, inalienable, born rights of the person is laid, which emerged as the independent concept of the legal status of the person in XVII century in Europe in the period of the bourgeois revolutions. Developed in the works of G. Grotius, Spinoza, D. Locke, J.J. Rousseau and other scientists, this concept of the legal status of the individual was further developed in the constitutions of Europe, America and other continents. The implementation of this concept required overcoming paternalism, which determined the relationship between the individual and the state in the previous period of the history of Kazakhstan. According to the paternalistic concept, the rights and freedoms of the individual are derived from the will of the state, which can give them to citizens, and at its discretion can reduce, limit, take it away. “The theoretical groundlessness of the positive (paternalistic) views on the relations of the state and citizen lead to the fact that the problem of their mutual responsibility, commitments got to the back plan. On the other hand, paternalism is often refracted in the minds of people as the basis for the dependent mood, the count that the state will provide and do everything. Willingly or unwillingly, the energy inherent in man was restrained, social passivity was imposed, and the role of citizenship, initiative and enterprise of people, their conscientiousness, an interested attitude to work was belittled”348. Inalienability of the constitutional rights and freedoms of the citizen implies

348 Nudnenko L.A. The Constitutional law of Russia, Yurayt. 2011. p.141 238 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY that the man is taken as a goal but not the means of the social development. This conclusion isapproved by the norm of the article 1 of the Constitution of the Republic of Kazakhstan, proclaiming the only source of the state power is its people, which exercises power through the republican referendum and free elections, and delegates its accomplishment to the state bodies. The right to speak on the behalf of the people belongs to the President349, and Parliament of the Republic within its constitutional competence. The recognition of the constitutional rights and freedoms of the man inalienable does not imply their absolute character. According to the article 39 of the Constitution the rights and freedoms of the man and citizen can be limited only by laws and only to the extent that is necessary for the protection of the constitutional system, defense of public order, human rights and freedoms, and the health and morality of the population. Restriction of the rights and freedoms of citizens for political reasons shall not be allowed in any form. The rights and freedoms provided for by articles 11, 13–15, paragraph 1 of article 16, article 17, article 19, article 22, paragraph 2 of article 26 of the Constitution, are not subject to limitation in any case. The content of the second principle of the constitutional status of the person in the Republic of Kazakhstan forms the equality of rights and duties, enshrined in the article 14 of the Constitution. This provision of the Constitution of the Republic of Kazakhstan corresponds to article 2 of the Universal Declaration of human rights, according to which «everyone shall have all rights and all freedoms...without distinction of any kind, such as race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth or other status. Besides, no distinction should be made on the basis of the political, legal or international status of the country or territory to which a person belongs, regardless whether territory is independent, trust, non-self-governing or otherwise limited in its sovereignty»350.

349 See: Malinovsky V.A. «President of the Republic of Kazakhstan / / SB. History of the presidency in the Republic of Kazakhstan: history and modernity». Volume 2. Almaty, “The Cossack. University”, 2010. pp. 174-197; Malinovsky V. A. «Leader: Presidential power in Kazakhstan at the turn of ep- ochs» Monograph. Astana. Publishing House “Norma-K”. 2012. Pp. 235-247 (522 P.). 350 Universal Declaration of human rights of 10.12.1948 / / International electoral standards. Collec- tion of documents. Second edition. Moscow, 2009. Pp. 41 REPRESENTATIVES OF THE ACADEMIC COMMUNITY 239

For implementation of the article 7 of the Universal declaration of human rights of December 10, 1948, that all the people are equal before the law and are entitled without any difference for the equal protection from any form of discrimination»351, the Constitution of the Republic of Kazakhstan proclaims, that all are equal before law and court. «The judicial formal equality of all before law in its content implies: the equality of the rights and freedoms of the man and citizen, the equality of the judicial duties of the man and citizen, equal basis of the legal responsibility for the violation of law, equality before the court»352. The constitutional principle of equality before the law and court is developed by the sectoral legislation. Thus, according to article 13 of the Civil procedural code of the Republic of Kazakhstan in the course of civil procedure no one of the citizens can be made preferences and no one can be discriminated because of their origin, social, official, and material status, sex, race, religion, convictions, place of residence, and other circumstances. The analogical norm lies in the article 14 of the Criminal procedural code and article 11 of the Code of administrative procedures of the Republic of Kazakhstan. The equality also includes the legal equality of woman and man. The duty of the democratic state is to consolidate and ensure the equality of man and woman flows from the article 2 of the Convention on the elimination of all the forms of discrimination against women of December 18, 1979, according to which the states-parties undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public

351 Universal Declaration of human rights of 10.12.1948 / / International electoral standards. Collec- tion of documents. Second edition. Moscow, 2009. Pp. 41 352 Constitution of the Republic of Kazakhstan. Scientific and practical commentary. Ed. Baimakhanov M.T., Zimanov S.Z., Sapargaliev G.S., Rogov I.I. Almaty. «Rarity» 2010. Pp. 65 240 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY institutions the effective protection of women against any act of discrimination; To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women353. The principle of equality assumes the legal equality of the citizens, belonging to any nationality and race. The part 2 of the article 39 of the Constitution of the Republic of Kazakhstan recognizing unconstitutional any actions, which can violate the inter-ethnic and inter-religious consent is aimed at the implementation of this part of the principle of rights and duties equality. In accordance with this principle the foreigners or people without citizenship exercise in the Republic of Kazakhstan the rights and freedoms, and bear the duties, established for citizens, unless otherwise provided by the Constitution, laws and international agreements. In accordance with article 19 of the Constitution everyone is entitled to define and to indicate or not his or her nationality, to use native language and culture, to choose the language of communication, upbringing, study and creation.

The principle of combination of private and public interests. The Declaration of the rights and freedoms of man and citizen, adopted by the National Assembly of France on August 26, 1789, declares: “Freedom lies in the ability to do anything that does not harm another: thus, the exercise of the natural rights of each person has only those boundaries that provide other members of society the opportunity to enjoy the same rights.” This idea was embodied in article 1 of the universal Declaration of human rights of 1948,

353 Convention on the elimination of all forms of discrimination against women of 18.12. 1979.//In- ternational electoral standards. Collection of documents. Second edition. Moscow, 2009. Pp. 65-66 REPRESENTATIVES OF THE ACADEMIC COMMUNITY 241 according to which “all people are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards each other in a spirit of brotherhood»354. This common to all mankind value was consolidated in part 5 of the article 12 of the Constitution of the Republic of Kazakhstan, according to which the implementation of the rights and freedoms of the man and citizen should not violate the rights and freedoms of other persons, to infringe on the constitutional system and public morality. «The essence of this humanistic principle is that it is impossible to enjoy only rights, ignoring the rights and legitimate interests of other people, society and the state. “The freedom of each is limited by the same freedom of others. In a civil society, a person’s exercise of his rights and freedoms should not violate the rights and freedoms of others, so in a civil society, a person needs to measure his interests with the interests of other people. This means that individual freedom is limited, on the one hand, by needs, interests, abilities and possibilities of man himself, and on the other by environmental conditions. In striving for freedom, one finds that it is entirely determined by the imperatives and limits of freedom of other members of society. The purpose of restrictions is to restrain the realization of antisocial interests of the individual»355. The limits of realization of the constitutional rights and obligations formulated in article 5 of the Constitution of the Republic of Kazakhstan, which prohibits the establishment and activity of public associations, goals or actions directed toward a violent change of the constitutional system, violation of integrity of the Republic, undermining state security, inciting social, racial, national, religious, class and tribal hatred, as well as the creation of not stipulated by the legislation paramilitary groups. The activities of political parties and trade unions of other states, parties on a religious basis, as well as the financing of political parties and trade unions by foreign legal entities and citizens, foreign states and international organizations are not allowed in the Republic.

354 Universal Declaration of human rights of 10.12.1948 / / International electoral standards. Collec- tion of documents. Second edition. Moscow, 2009. Pp. 41 355 Nudnenko L.A. Constitutional rights and freedoms of the individual in Russia. Textbook. SPb. Publishing house “Legal center Press”. 2009. Pp. 76 (449 S) 242 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Propaganda or agitation of violent change of the constitutional system, violation of integrity of the Republic, undermining state security, war, social, racial, national, religious, class and tribal superiority as well as cult of cruelty (part 3 of article 20 of the Constitution).

The principle of the guaranteeing of the rights and freedoms of the person. The Republic of Kazakhstan guarantees the rights and freedoms of the man in accordance with Constitution (p.1 article 12). The constitutional guarantees of the rights and freedoms of the person could be divided to general and special guarantees. The constitutional guarantees of the general character are the economic, political conditions and prerequisites, ensuring the factual possibility of realization of the constitutional rights and freedoms. To the number of general guarantees the economic guarantees can be related. Thus, the article 6 of the Constitution consolidates the diversity of the forms of property: state and private. The both forms of the property are recognized and protected in equal forms. The Constitution consolidates the social character of the private property, which has to serve the social benefit. The realization of the constitutional rights is possible only in conditions of social state, socially oriented economics of the country. More detailed regulation of the subjects and objects of the property, the scope and limits of the rights exercising by owners, the guarantees of their protection are defined by law. The principle meaning has the constitutional norm, according to which the land, its subsoil, flora and fauna, other natural resources are owned by state. The land can also be in private ownership on the basis and conditions and in limits, set by law. The citizens of the Republic of Kazakhstan can own any legally acquired property. The property, including the right of inheritance is guaranteed by law. No one may be deprived of his property unless otherwise stipulated by a court judgment. Forcible alienation of property for public use in extraordinary cases specified by law shall be exercised on condition of its equivalent compensation. Everyone shall have the right to freedom of entrepreneurial activity, and free use of property for any legal entrepreneurial activity. Monopolistic activity REPRESENTATIVES OF THE ACADEMIC COMMUNITY 243 shall be regulated and limited by law. Unfair competition shall be prohibited. The political guarantee of the constitutional rights and freedoms is the democratic character of the Republic of Kazakhstan. The Constitution of the Republic of Kazakhstan consolidates the prohibition for appropriation of the power in the Republic. The actual realization of the constitutional rights and freedoms of the individual is possible in the conditions of the rule of law356. According to article 4 of the Constitution, the acting law in the Republic of Kazakhstan are the norms of the Constitution, relevant laws, other normative legal acts, international treaties and other obligations of the Republic, as well as normative decisions of the constitutional Council and the Supreme Court of the Republic. The Constitution has the highest legal force and direct effect throughout the territory of the Republic. International treaties ratified by the Republic have priority over its laws. The procedure and conditions for the operation in the territory of the Republic of Kazakhstan of international treaties to which Kazakhstan is a party shall be determined by the legislation of the Republic. All the laws, international treaties, part to which is the Republic of Kazakhstan shall be published. The official publishing of the normative legal acts, concerning the freedoms and obligations of the citizens, is a compulsory condition of their implementation. Everyone is obliged to observe the Constitution and legislation of the Republic of Kazakhstan, to respect the rights, freedoms, honor and dignity of others. The most important legal guarantee of the constitutional rights and freedoms of the individual is ideological and political pluralism. The establishment of organizations of political parties in state bodies is not allowed. Public associations are equal before the law. Illegal interference of the state in the affairs of public associations and public associations in the affairs of the state, assignment of functions of state bodies to public associations is not allowed (article 5 of the Constitution).

356 See: Abdullayev F. Kazakhstan yesterday, today, and tomorrow: from totalitarianism to the rule of law state. From totalitarianism to a democratic and legal state (view from the outside). Astana. 2015. Pp. 77-85 244 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Special guarantees of the constitutional rights and freedoms of the individual include: - the right to defend the rights and freedoms by all means not contradicting to the law, including the necessary defense; - the right to judicial protection of their rights and freedoms; - the right to receive qualified legal assistance. In cases provided for by law, legal assistance is provided free of charge. Every detainee, arrested, accused of committing a crime is entitled to have assistance of a lawyer (defender) from the moment, respectively, of detention, arrest or accusation; - the care of the state to create conditions for studying and development of languages of the peoples of Kazakhstan; - a citizen of the Republic of Kazakhstan may not be extradited to a foreign state unless otherwise established by international treaties (article 11); - a citizen of the Republic under no circumstances may be deprived of citizenship, the right to change his citizenship, and may not be expelled from Kazakhstan; the Republic guarantees its citizens protection and patronage outside its borders.

REFERANCES: 1. Abdullayev F. «Kazakhstan yesterday, today, tomorrow: from totalitarianism to the legal state» / / SB. «Kazakhstan trend. From totalitarianism to a democratic and legal state (view from the outside» Astana. 2015. pp. 77-85 2. Constitution of the Republic of Kazakhstan. Scientific and practical commentary. Ed. Baimakhanov M.T., Zimanov S.Z., Sapargaliev G.S., Rogov I.I. Almaty. «Rarity» 2010. p. 399 3. Malinovsky V.A. «President of the Republic of Kazakhstan» / / SB. «History of the presidency in the Republic of Kazakhstan: history and modernity». Volume 2. Almaty, “Kazakh University”, 2010. Pp. 174-197 4. Malinovsky V.A. «Leader: Presidential power in Kazakhstan at the turn of epochs». Monograph. Astana. Publishing House “Norma-K”. 2012. p. 522 REPRESENTATIVES OF THE ACADEMIC COMMUNITY 245

5. Nudnenko L.A. «Constitutional rights and freedoms of the individual in Russia». Textbook. SPb. Publishing house “Legal center Press”. 2009. p. 449 6. Nudnenko L.A. «Constitutional law of Russia». M., Yurayt. 2011. p.616 246 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Ludmila THABISIMOVA Deputy Director on Science, professor of the Department of constitutional and municipal law of the Institute of Law of the Federal State funded Educational Institution of Higher Professional Education «Pyatigorsk State University», Doctor of Law SOME ASPECTS OF THE CONCEPT OF JUDICIAL PROTECTION OF THE RIGHTS AND FREEDOMS OF CITIZENS IN THE CONSTITUTIONAL PROCEEDINGS OF RUSSIAN FEDERATION AND THE REPUBLIC OF KAZAKHSTAN

n common understanding the protection of rights and freedoms of the citizens is implemented by state bodies, social organizations and individuals, aiming at the maintenance and of the rights and freedoms of the man and citizen, ensuring their respect [4]. The protection of Irights and freedoms includes the actions on restoring the violated rights, compensating of the physical, moral, material and professional harm. The special place in the protection of the citizens’ rights is given to judicial protection. As one of the forms of the state protection it is most effective means of the violated rights due to excluding role and significance of the REPRESENTATIVES OF THE ACADEMIC COMMUNITY 247 judicial bodies. This statement is noted by many scientists. The exclusiveness and universal feature of the judicial bodies is noted by I.A. Umnova, who writes, that “courts in the state bodies with developed democracy...are the independent elements of the system of power, under jurisdiction of which all the citizens and state bodies, regardless of their status, origin, material position fall...”[14]. G.N. Komkova emphasizes the exclusive role and significance of the court in the protection of the rights and freedoms of the individual, expressed in consolidation in the Constitution of the Russian Federation as a special and independent constitutional principle, that characterizes the relations of the individual and legal state [10]. N.N. Rozin expresses the opinion, that the power of the court inseparably connected with the exclusiveness of the judicial power, where the judicial function of the state is concentrated [13]. The citizens of any state need the existence of the certain order in the society, and in existence of the court as a body of justly solving the social conflicts. Only through the establishment of a mechanism of protection of citizens’ rights, and establishing civil, criminal and administrative liability for violating them the real rights and freedoms enshrined in the Constitution can be achieved. The guarantee of judicial protection establishes the right of a citizen to apply to a special state body-the court with a demand for protection of rights, and the duty of the court to consider the appeal and make a decision [9] that meets the requirements of justice and legality. In this regard, the court acts as the ultimate guarantor of protection of the rights and freedoms of citizens, judicial protection is the most effective means of remedy, as the final act of the court - the court decision is obligatory for execution by all state authorities, officials, legal entities and citizens all over the territory of the Russian Federation, and this commitment gives the justiciability particular importance in the sphere of protection of the rights of citizens [7]. It is necessary to mark one special feature, laid in the Constitutional law of the Republic of Kazakhstan “the recommendations and offers of the 248 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Constitutional Council on the improvement of the legislation are subject to consideration by authorized state bodies and officers with the compulsory notification of the Constitutional Council of the adopted decision (art. 40 p. 3 of the Constitutional law). In our view, making the amendment like this into Constitution of the Russian Federation “Of the Constitutional Court of the Russian Federation”, to some extent would solve the problem of the Constitutional Court’s decisions, which arise in the work of all the branches of the state power, legislative, executive and judicial. The judicial power, being the guardian of the main constitutional values, being guided by law and right, protects society and individual of the excessive use of state coercion, including abuse on the part of state bodies and officials. Judicial protection of citizens’ rights is one of the most important ways guaranteed by the state to protect the rights, freedoms and legitimate interests of legal entities, carried out through justice. It is considered as a social attitude and state function, identified with justice [5]. As a variety of state function, it is a type of legal protection [12]. Thus, the concept of judicial protection can be characterized as state protection of the rights and freedoms of citizens, based on constitutional rights, freedoms and guarantees, aimed at restoring the situation that existed before the offense, carried out by specialized state bodies - courts. The particular place in the system of the rights and freedoms protection in modern world is taken by the constitutional procedure. In order to understand the concept of judicial protection of the rights and freedoms of citizens in constitutional proceedings, it is necessary to determine its features. The protection of the rights and freedoms of citizens is not limited to the constitutional consolidation of this right. Legal guarantees of proper protection and observance of human and civil rights and freedoms are undoubtedly necessary for full implementation. The complicated and changing legal regulation of public relations in the modern world requires constant monitoring of compliance with the Constitution, and it is in the Constitution that the basic rights and freedoms of man and citizen are laid down, in violation of which REPRESENTATIVES OF THE ACADEMIC COMMUNITY 249 the individual applies for judicial protection. There are mechanisms of broad constitutional control with the creation of specially designed bodies for this purpose – the constitutional courts, as well as the right of filing an individual constitutional complaint by a citizen directly or through other bodies. It was based on the idea of subjecting all departmental acts, even the sentences of the judiciary, to control, examining whether they violate the rights based on the principles of the Constitution [15]. In order to understand the concept of judicial protection of the rights and freedoms of citizens in constitutional procedure, it is necessary to determine its features. In the frames of the constitutional procedure by lodging an individual complaint, not only rights of the particular person, but also other citizens are protected. As the decisions of the constitutional court have a vast effect and spread not only on the persons, participating in the process, but also citizens, who are not the part to the constitutional procedure, the rights of whom are violated by the corresponding norms. This in its turn is the peculiarity of the judicial protection of the rights and freedoms of the citizens in the constitutional procedure of the Russian Federation and the Republic of Kazakhstan and defines its significance while its processing on the definite case, on one hand the legal situation is being individualized, that is considered in reference with particular person with the definite legal problem, on the other hand, as a rule, forms themass understanding of the resolving of such problems, arising afterwards in a similar situations. Moreover, in the case of acknowledgment of the norm unconstitutional, it is excluded from the acting legislation all over the territory of the Russian Federation. A similar norm is laid down in the constitutional law of the Republic of Kazakhstan “On the Constitutional Council of the Republic of Kazakhstan” (article 39 part 2 of the constitutional law of the Republic of Kazakhstan). The establishment of the Institute of the constitutional complaint in the Russian Federation has increased and expanded the means of protecting the 250 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY rights and freedoms of citizens, improved the understanding of the content of constitutional norms by law enforcement bodies. According to part 4 of article 125 of the Constitution of the Russian Federation, article 96 of the Federal constitutional law” on the constitutional Court “ of July 21, 1994 No. 1-FKZ [2] citizens whose constitutional rights and freedoms are violated by the law have the right to appeal to the constitutional Court. It may be filed in the form of an individual or collective complaint. The mentioned law also provides a mechanism for protecting the interests of the applicant, on whose complaint the norm was declared unconstitutional or its constitutional meaning was revealed, other than applied by the courts in the applicant’s case-the right to review the case, in which the applicant can obtain satisfaction of their claims. According to V.D. Zorkin, the main role of the Constitutional Court in the system of protection of constitutional rights is to neutralize legal provisions violating the rights of an indefinite group of persons [8]. N.V. Vitruk notes that constitutional justice is a synthesis of two principles- the essence of constitutional control and the form of justice, as a result of which there is an independent kind of state-power control activity in a specialized form of constitutional justice [6]. The main task of the of the constitutional procedure - is the safeguarding of the constitutional provisions reform their wrong interpretation, that in its turn ensured the harmonious development of the entire legislation. As a result of strict implementation of the given task the legal acts contradicting the constitution and the whole legal system of the state are excluded from the legislation and the main goals of the bodies of the constitutional justice such as protection of the constitutional system and ensuring the constitutional rights of the citizens are achieved. Today in the national system of the rights and freedoms protection of the constitutional procedure is the most effective of all legal means of the Constitution supremacy ensuring on the whole territory of Russia. It ensures the maintaining of the balance of the constitutionally protected values, uniform REPRESENTATIVES OF THE ACADEMIC COMMUNITY 251 understanding and implementation of law. [11]. The special feature of the judicial protection of rights and freedoms of the citizens in the constitutional procedure is that in its frames the procedural legislation, by which the courts of general jurisdiction are guided, can be examined. As an example, we can mention the resolution of the Constitutional Court of the Russian Federation of November 16, 2018 No. 43-P on examinning of constitutionality of part 1 article 44 of the Civil procedure code of the Russian Federation [3], in which the Constitutional Court of Russia has explained features of civil procedural legal succession. This resolution contains legal positions concerning the specified question which subsequently will assist courts of general jurisdiction at implementation of judicial protection of the rights and freedoms of citizens, properly to apply the challenged norms of the law. Thus, judicial protection of the rights and freedoms of citizens in the constitutional legal proceedings of the Russian Federation and the Republic of Kazakhstan, as well as judicial protection in courts of general jurisdiction, is a state protection of the rights and freedoms of citizens based on constitutional rights, freedoms and guarantees. But only the concept of judicial protection of constitutional justice not only involves the remedy of a specific person or group of persons, but also ensuring the legal certainty of the legal norms that contribute to a common law - understanding and law - enforcement, adjustment of the current legislation, as a result of which unconstitutional norms that may interfere with the proper judicial protection of citizens’ rights and freedoms are excluded from the current legislation. In addition, it is carried out only by specialized courts – constitutional courts. Proceeding from the above, it should be noted that the judicial protection of the rights and freedoms of citizens in constitutional proceedings contributes to the formation of judicial practice, which can prevent incidences of judicial disputes in the future and ensure the preservation of legal and social balance in society and state. Judicial decisions of the Сonstitutional Court 252 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of the Russian Federation and the Сonstitutional Council of the Republic of Kazakhstan, made on the basis of consideration of citizens’ appeals, contain normative and educational institutions, through which citizens receive the necessary legal information, legal literacy and confidence in the law and its correct application.

References

1. The Constitution of the Russian Federation (adopted by popular vote 12.12.1993) (with amendments, made by laws of the Russian Federation on amendments to the Constitution of the Russian Federation of 30.12.2008 № 6-FKZ, of 30.12.2008 № 7-FKZ, from 05.02.2014 No. 2-FKZ, of 21.07.2014 No. 11-FCL). 2. Federal constitutional law of 21 July 1994 No. 1-FKZ “ On Constitutional Court of the Russian Federation”. - 1994. - 13. - St. 1447. 3.Decisions of the constitutional Court of the Russian Federation No. 34-N on the case about the verification of constitutionality of part one of article 44 of the Civil procedure code of the Russian Federation in connection with complaints of citizens A.B. Bachinskogo and B.A. Bachinskogo. Official website of the constitutional Court of the Russian Federation. http://doc. ksrf.ru/decision/. Date of access 03.08.2019. 4. Barikhin A.B. Big legal encyclopedic dictionary - Moscow: Book world, 2002. Pp. 194. 5. Baglay M.V., Gabrichidze B.N. Constitutional law of the Russian Federation: Textbook for law schools. M., 1996. Pp. 225-226 6. Vitruk N.V. Constitutional justice. Judicial constitutional law and process. - M. Law and law, UNITY, 1998. Pp. 30. 7. Zhuikov V. M. Judicial reform: problems of access to justice. M., 2006. p. 161. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 253

8. Zorkin V.D. Actual problems of the constitutional Court of the Russian Federation: questions and answers. URL. http://www.ksrf.ru/. Date of access 12.08.2019. 9. Kotov O. «Influence of decisions of the constitutional Court of Russia on civil proceedings». M., 2002. p. 59. 10. Komkova G.N. «System of human rights protection in the Russian Federation». Tutorial by G. N. Komkova. – Moscow. Avenue., 2017. p. 71. 11. Konovalov A.V. «Monitoring of execution of decisions of the Constitutional Court of the Russian Federation as an element of the system of protection of rights and freedoms of citizens» / / Journal of constitutional justice No. 5 (53) 2016. p. 12 12. Constitutional and judicial protection of economic rights of citizens in the Russian Federation. The dissertation on competition of a scientific degree of candidate of legal sciences. Yekaterinburg 2017. p. 64. 13. Rozin N.N. Criminal proceedings. 3rd revised edition. Petrograd: publishing house of the book warehouse “Law”, 1916. p. 107. 14. Umnova (Konyukhova) I.A. Actual problems of development of constitutional and legal bases of judicial power in the States of the post- Soviet space: Collection of articles / ed. I.A. Umnova (Konyukhova). - Moscow: rsup, 2017. p. 5. 15. Textbook on constitutional law. Textbook. Volume 3. Constitutional regulation of territorial organization of power. Constitutional and legal regulation of methods and procedure of formation of state bodies. Constitutional foundations of the system and status of state bodies / Comp. D. Yu., prof. SPb.: Publishing house”Alef-Press”, 2014. p. 906. 16. Constitution of Kazakhstan. Scientific and practical commentary. Ed. Baimakhanov M.T., Zimanov S.Z., Sapargaliev G.S., Rogov I.I. Almaty. «Rarity» 2010. 17. Universal Declaration of human rights of 10.12.1948 // International electoral standards. Collection of documents. The release of the second. Moscow, 2009. 254 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

18. Constitution of Kazakhstan. Scientific and practical commentary. Ed. Baimakhanov M.T., Zimanov S.Z., Sapargaliev G.S., Rogov I.I. Almaty. «Rarity» 2010. p.400. 19. Malinovsky V.A. Leader: Presidential power in Kazakhstan at the turn of epochs. Monograph. Astana. Publishing House “Norma-K”. 2012. p.522. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 255

Jacek ZALEŚNY Faculty of Political Science and International Studies at the University of Warsaw, Doctor of Law THE PRESIDENT OF THE REPUBLIC OF KAZAKHSTAN AS A GUARANTOR OF CONTINUITY OF STATE POWER

he political significance of the President of the Republic of Kazakhstan, the scope and nature of his participation in the development of the state, are one of the key issues in relation to the Constitution of the Republic of Kazakhstan of 30 August 1995. According to theT provisions contained therein (Article 40 para. 3 of the Constitution), the President of the Republic Kazakhstan is the guarantor of the continuity and permanence of state power, as well as its proper functioning. He personalizes the interest of the state. He protects the values that are most important for Kazakh raison d’état, of universal importance from the point of view of the existence of the state, its strategic interests, political, social, economic or 256 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY cultural relations. They exist independently of the particular and changing interests of various participants in political relations. Embodying the majesty of Kazakhstan, the President is not involved in current political activities. They are mainly the point of interest of social organisations, parliament, government, other central authorities and local self-government bodies. He is above all that is described as partial, particular, expressing the needs and aspirations of various social groups. Its constitutional task is to integrate streams of partial arguments into the interest of the state, elaborating universal decisions, objectively needed or indispensable. The President, being the guarantor of the consistent operation of the organs of state power (Article 40 para. 3 of the Constitution), is obliged to intervene in power relations whenever the ordinary mechanisms of action turn out to be ineffective and fail to achieve the desired goal. Then, according to the constitutional legislator, his intervention is necessary. The use of mechanisms of coordination of power becomes indispensable in order to avoid the occurrence or to overcome systemic tensions, conflicts hindering or even preventing a rational political decision [2, p. 1852]. Disturbances in the operation of state authorities may manifest themselves in a variety of ways. They may manifest themselves as idleness, delay in acting, sham actions or dysfunctional actions consisting in distorting the systemic role assigned to a given authority. They may concern issues that are legally unregulated and demanding settlement. In the event of disturbances in the state power system, the guarantor of the continuity of state power is to initiate the necessary procedures, levelling the resulting perturbations and leading to the desired goal. Presidential activity is intended to limit conflicts in the political system of the state and to make the opposites, disputes natural in social relations, constructive and serving to develop solutions that are optimal from the point of view of large social groups. Thus, thanks to the use of constitutional coordination mechanisms, the President protects the state system against inertia, lability and, consequently, against violating the constitutional freedoms and rights of citizens. Typically, these are the negative consequences of unresolved political tensions. Thanks to the elaborated political position of the President, the risk is minimised that the constitutional principle of the division REPRESENTATIVES OF THE ACADEMIC COMMUNITY 257 of power (Article 3 para. 4 of the Constitution) may evolve (degenerate) into a conflict of power obstructing effective solving of problems of large social groups and not conducive to preventing adverse events for large social groups. In such situations, the activities of the President equipped with adequate measures are envisaged. He is a moderator, the leader of the state, following the example of the French concept of président capitaine [6]. It is not only a right but a constitutional duty to make decisions necessary for the safe and effective development of the state. The President’s participation in power relations is a system-wide activity, encompassing the whole of power relations, not only of political power, but also of economic power, inseparably connected with it. On the basis of art. 40 para. 1 of the Constitution, the President establishes the basic directions of internal and foreign state policy, such as, for example, the Strategy “Kazakhstan - 2030. Prosperity, safety and improvement of the welfare of all Kazakhstanis”, or - as its creative continuation - Strategy “Kazakhstan - 2050”. He does so for a specific purpose – to ensure the inviolability of the Constitution, the implementation of freedoms and human and civil rights (Article 40 para. 2 of the Constitution). In this way, he is an organ on the one hand that monitors the direction of constitutional solutions taken, on the other hand - is not only a kind of notary public of the Constitution’s validity. The task assigned to him is much more ambitious and demanding. He is to give a specific wording to constitutional values. He is to adapt them to the changing internal and external conditions of the state, adapt to revealing needs and expectations. He is to ensure that the Constitution adopted years ago has not lost its importance, but on the contrary - it would be a living act, giving a secure and stable framework for the modernising state, which is an active participant in international relations in a globalizing world. By updating the state’s interest, the President not only uses the power tools available to him, but also independently sets the moment when they are to apply. He decides whether in a given situation a given action or a lack of action is needed. Then he chooses the solution that is most effective in given circumstances and at the same time, most fully serves the implementation of constitutional values. The constitutionality of available legal solutions is 258 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY combined with the effectiveness of achievable goals. There is no doubt that by embodying the raison d’état, protecting human and civil rights and freedoms, state security, its sovereignty and territorial integrity, the president should be guided by these criteria in selecting a concrete solution. This means that in the light of constitutional regulations, although different solutions are legally acceptable, they are not equally legally desirable. Legally acceptable solutions are subject to internal gradation. Depending on specific circumstances, it is the President’s duty to conceptualise constitutional values, give them a certain meaning in given circumstances and on this basis choose and use the appropriate means of action. This is what characterises the political position of the President as a guarantor of constitutional values, that - unlike in the parliamentary-cabinet system - is not forced to act mechanically, to a specific action in given concrete conditions. The Constitution of the Republic of Kazakhstan does not impose on the President to take actions with a specific content in specific conditions, i.e. it does not make him a kind of “notary” of the Constitution. On the contrary, it makes him capitaine du système d’état. From among the legally permissible solutions, the President is to choose the most effective one. This is his systemic role and the quality of its performance is accounted for in subsequent elections as well as in the framework of nationwide referendums. Special relations between the President of Kazakhstan and the sovereign need to be emphasised. The nation is the only source of state power (Article 3 of the Constitution). The President, as the guarantor of the continuity of state power, and at the same time the leader of the nation, directly (through a referendum) turns to it in matters essential to the state. In this way, on the one hand, he calls the sovereign for agreement on the strategic decisions he makes, but on the other hand - no less important - he gets the nation’s acceptance for his policy. Through the constitutional referendum he manages, the President renews his electoral legitimacy. Its timeliness allows the President to introduce systemic changes, and at the same time, the refusal thereof would mean the necessity to withdraw from the proposed solutions, including a political (because not legal) inability to implement them through Parliament’s amendment of the Constitution. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 259

There is, therefore, a relation between the nation as a sovereign and the President as an exponent of the unity of state power. As in the Fifth Republic of France during the period of President General Charles de Gaulle, the questions in the referendum do not only concern the sovereign’s consent in a specific case, which the President is asking about. There is something much more - it is about to confirm confidence in the state leader, whether the nation still has confidence in him or whether he still wants him to play the role of a guarantor of the implementation of constitutional freedoms and rights of citizens, national security, sovereignty and integrity of Kazakhstan. The President fulfils the function of the guarantor of the continuity of state power by means of specific competences assigned to him in the Constitution and laws. In their entirety, they concretise this function and enable its effective execution. In addition to legal means of action, other means of action are also important. They arise from the official and personal authority of the President of Kazakhstan. He draws his ability to act not only from the competences assigned to him, but also from the trust that he receives from large social groups and main participants in political relations. The personal authority of the President is an essential condition enabling him to effectively use the assigned competences, effectively implement the continuity of state institutions and predictability of political relations taking place in it, as well as, what is connected therewith, economic, social, religious, cultural and other relations. It can be argued that in the Kazakh conditions, the President’s personal authority causes that he must interfere in the decisions of state authorities to make a correction of their decision only incidentally. In the political system of the 25 years of the Constitution of the Republic of Kazakhstan, another mechanism dominates: the mechanism of conciliatory implementation of strategic decisions worked out by the President. This in turn implies another principle of the Constitution, that although the exercise of state power takes place on a basis of division of power, the state authority itself is a unity (Article 3 para. 4) and its primary source is the nation (Article 3 para. 1). As a guarantor of the continuity of state power, the President submits to Parliament a draft amendment and supplement to the Constitution. He uses 260 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY this competence to correct the systemic framework of state development, when he states that the solutions developed years ago are not the most appropriate in the dynamically changing conditions of the state or require supplementation with new components that did not matter during the creation of the Constitution, but with time they proved so systemically important that they could not be replaced by acts passed by Parliament. After consultation with the presidents of both Chambers of Parliament and the Prime Minister, the President dissolves the Parliament or its first chamber – the Mazhilis of Parliament. The decision in this matter is stimulated by the situational context, the need to correct the faulty acting Parliament. By definition, the dissolution of the Parliament (or its first chamber) isa definitive measure, used when the means of the current impact on Parliament prove to be ineffective, not yielding the desired result. Then the President, looking at the issue through the prism of the quality of Parliament’ work, decides whether is it still capable of an act of self-repair or whether it is necessary to end its activities in a given personal composition and appeal to the will of the sovereign with the hope that the newly elected Parliament (or Mazhilis of Parliament) will effectively perform the tasks entrusted to it. At the same time, considering the stability of the functioning of the state, the legislator decided that the Parliament or Mazhilis of Parliament cannot be dissolved in a state of emergency, martial law, during the last six months of the Presidency and within one year of the previous dissolution of the Parliament or Mazhilis of Parliament. In these circumstances, the dissolution of Parliament or Mazhilis of Parliament could disrupt the functioning of the state and is therefore constitutionally forbidden. In a similar perspective, the presidential right to refuse to sign the act (legislative veto) and the right to apply to the Constitutional Council to examine the compliance of the binding law with the Constitution should be assessed. In the case of a legislative veto, it is not a tool for political rivalry, but a means of harmonising Parliament’s legislative activity and constitutional regulation. It is not only about the rules and procedures directly and specifically articulated in the Constitution, but also about general values (such as the preservation of sovereignty, social state or economic development for the benefit of the REPRESENTATIVES OF THE ACADEMIC COMMUNITY 261 entire nation), which is concretised in the process of applying the law through specific decisions of participants of public authority. The role of the President is to verify whether subsequent laws passed by Parliament are good for reasons of state, execution of constitutional values and as such they should enter the legal order of the state or they interfere with the content of the Constitution and as such cannot become effective. The presidential competence to apply to the Constitutional Council for examination of the constitutionality of the binding law is even more pro-constitutional. In this case, the Constitution is the direct reference point for the presidential decision. Its specific provisions determine the behaviour of the President [1]. The President of Kazakhstan does everything that is constitutionally necessary to preserve the sovereignty of the state, its integrity, protection of freedom and citizens’ rights. This applies in particular to various types of situations that are unusual for the state and pose a threat to it. In the event of an aggression against the Republic of Kazakhstan or a direct external threat to its security, the President introduces martial law on the entire territory of the Republic or part of it, announces partial or general mobilisation, of which he informs the Parliament without any delay. In the case of democratic institutions, independence and territorial integrity, political stability of the Republic of Kazakhstan, the security of its citizens being seriously and directly threatened and the normal functioning of constitutional state organs having been violated, after official consultations with the Prime Minister and the presidents of both houses of the Parliament, the President takes measures adequate to the circumstances, including the introduction, throughout the territory of the state or a part thereof, of the state of emergency or the use of the Armed Forces, of which Parliament shall be promptly informed. In order for the President to be able to effectively perform the tasks entrusted to him, in addition to the competencies assigned to him, he must also be guaranteed the actual ability to implement them. In his activities, he cannot be addicted to the will of other participants in political relations, because - in conditions that are not system-friendly - it could disrupt the decision- making mode and, as a result, the effectiveness of the presidential action. It is difficult to imagine efficient guaranteeing the continuity of power by the 262 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

President, if any important decision was preceded by the need to obtain the Government’s consent (countersignature). The guarantor’s function requires imperative decision-making by the President, which does not deprive other participants of political relations (including the nation) of the right to assess the legitimacy of the President’s actions. However, this type of assessment does not anticipate the President’s actions, but takes place only after taking action. Summing up, in the context of 25 years of validity of the Constitution of the Republic of Kazakhstan and the dynamics of changes taking place in the country at that time, the prudence of the creators of the Constitution and key participants in political relations should be appreciated. They have developed a system of effective government that serves the purpose of achieving the assumed goals, the key element of which is the President’s state leadership. As systematic practice shows, the coordinating role of the President is effectively carried out. Kazakhstan is one of the most developed, stable and predictable countries in the region, an important participant in international relations, consistently implementing selected modernisation strategies. Achieving these types of effects in a long time is never a coincidence. On the contrary, it is the work of a rational governmental framework of the state and development strategies adequate to the needs and possibilities, in which the President of the Republic of Kazakhstan, treated as the guarantor of the continuity of state power, plays a key role.

REFERENCES: 1. Amandykova S.K. Constitutional justice in the Republic of Kazakhstan // Constitutional courts in post-Soviet states: between the model of a state of law and its local application / edited by J. Zaleśny – Berlin: Peter Lang, 2019. 2. Amandykova S.K., Amandykova L.K. Some issues of realization of the principle of separation of powers in the constitutional legislation of the Republic of Khazakhstan // Actual problems of Russian law. – 2014. No 9. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 263

3. Gabdualiev M. Transformation of presidential power in Kazakhstan: The choice between democracy and socio-political stability // Studia Politologiczne. – 2019. Vol. 52. 4. Kukeyeva F., Shkapyak O. Central Asia’ transition to democracy // Procedia - Social and Behavioral Sciences. – 2013. No 81. 5. Malinovsky V.A. The leader: presidential government in Kazakhstan at the turn of the century. Astana. “Norma-K” publishing house. 2012. 6. Massot J. L’arbitre et le capitaine: Essai sur la responsabilite presidentielle. Paris: Flammarion. 1987. 7. Nazarbayev N.A. The era of independence. - Astana, 2017. 264 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Igor OSTAPOVICH Professor of the Department of constitutional law of the Ural State Law University, Doctor of law SPECIALIZED CONSTITUTIONAL CONTROL IN KAZAKHSTAN: FROM ORIGINS TO MODERN REALITIES

he institute of the specialized constitutional control in modern conditions is the part of the legal system of the most states and influences significantly on its development. In Kazakhstan the formation of this institute promoted the emerging of the special meansT to establishment of the supremacy of law; at the same time, as a result of progressive evolutionary development, there was a certain transformation of the originally unified mechanism for the protection of the Constitution, based on the Soviet legal “platform”. To study these features, it is necessary to consider the approaches formed in the legal theory to the definition of specialized constitutional control, to REPRESENTATIVES OF THE ACADEMIC COMMUNITY 265 analyze the foreign experience of the establishment of such bodies and to identify the historical continuity of the development of this legal institution. As V.D. Zorkin fairly notes, the specialized constitutional control carried out by the bodies of constitutional justice helps to overcome the “inflation of legislative material”, which includes “random prescriptions that have no legal content»357. N.S. Bondar draws attention to the fact that specialized (judicial) constitutional control is a universal means of resolving contradictions and conflicts, since it is carried out by a body endowed with state power, having the right to make binding decisions, many of which have normative character358. T. Khabrieva makes an accent on the fact that the specialized constitutional control assists the alive constitution359 and bases on the constitutional legitimacy360. G.A. Gadzhiev and I.A. Alebastrova note such a role of the specialized constitutional control, as the correction of the legislative decisions and identifying of the mistakes of the legislator, what allows to establish the elements of the interaction of the judicial and legislative authorities with view to strengthening the democratic legal state361. B.S. Ebzeyev points out that constitutional control is an independent sphere of state-power activity362. Similarly, S.A. Avakyan argues, pointing out that constitutional control is a special kind of state activity aimed at ensuring the correct application of the Constitution and the laws stipulated by it, to protect the constitutional system of the state enshrined in them363. The analysis of the notion and essence of the constitutional control allowed N.V. Vitruk come to conclusions about existing in the modern countries of

357 Zorkin V.D. Civilization of law and development of Russia. Moscow: Prospect, 2016.p 11. 358 Bondar N.S. Сonstitutional Court in the system of jurisdictional bodies (on “God-pleasing sins” of constitutional justice) / / Journal of foreign legislation and comparative law. 2017. No. 1. Pp. 26-32. 359 Khabrieva T.Y. Constitutional reform in the modern world. Moscow: Norma, 2016. p. 52. 360 Kravets I.A. Constitutional teleology and fundamentals of the constitutional system. Moscow: Publishing decision, 2016. Pp. 27-31. 361 Hajiyev G.A. Law and Economics (methodology). Moscow: Norma, 2016. P. 75; Alabastrova I.A. Constitutionalism as the legal basis of social solidarity. Moscow: Prospect, 2015. Pp. 561. Hajiyev G.A. Law and Economics (methodology). Moscow: Norma, 2016. P. 75; Alabastrova I.A. Constitutionalism as the legal basis of social solidarity. Moscow: Prospect, 2015. Pp. 561. 362 Ebzeev B.S. Constitution. Power and freedom in Russia. Experience of synthetic research. Moscow: Prospect, 2014. Pp. 115. 363 Avakyan S.A., Problems of the theory and practice of constitutional control and justice // Vestnik MGU. Series “Right”. 1995. No. 4. 266 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY its specific varieties364. The most important and most often used is the classification, which differentiates the constitutional control to the varieties depending on the subject, accomplishing such a control. Focusing on this criterion, the following main types of constitutional control are distinguished: state-political (non-specialized) constitutional control and specialized constitutional control365. The state-political constitutional control is understood as a specific function (special direction of activity) of the competent state bodies (President, parliament366, government) for ensuring the supremacy of the constitutional prescriptions in the system of normative acts, their direct action in the legal regulation of the vital activity of the society367. Under specialized constitutional control we mean, in turn, — the activity of specially established bodies- constitutional courts or constitutional councils, the main task of which is implementation of the constitutional control. Exploring the essence of specialized constitutional control exercised by the courts, in conjunction with the legal nature of the decisions of the bodies exercising it, Z.I. Hovsepyan notes that constitutional control ensures the stability of society by examining, identifying, ascertaining and eliminating inconsistencies of normative acts of the Constitution. In the course of this examination the bodies of the constitutional control are authorized to eliminate the discrepancies368. Amongst the main specific characteristics of the specialized constitutional control it singles out: 1) the supreme (after the parliament control and referendum) position in the system of the control activity of the state; 2) the realization of the control authority in the sphere of management and law-making (accomplished as by the

364 Vitruk N.V. Constitutional justice. Moscow: Yurist, 1998. p. 25. 365 Constitutional (state) law of foreign countries: Special part: studies. for universities / ed. edited by B.A. Strashun. Vol. Moscow: Norma, 2006. Pp. 321-324. 366 Hovsepyan Zh.I., Hovsepyan A.G. Presidential and parliamentary control as forms of constitu- tional control in the Russian Federation / / Bulletin of the faculty of law of the southern Federal University. 2016. Vol. No. 2-3. Pp. 9-20; Chirkin V.E. Head of state: comparative legal research / V.E. Chirkin; Institute of state and law RAS. - Moscow: Norma, 2010. - 239 p. 367 Vitruk N.V. Constitutional justice. Moscow: Yurist, 1998. p. 25. 368 Hovsepyan Zh.I. Judicial constitutional control in foreign countries. Rostov n/A: Litera-D, 1992. p. 42. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 267 secretariat of the administration, so by the highest body of the legislative power; 3) the exclusive competence in protection of the normative act of the highest judicial force-the constitution of the state. The constitutional control also implies: a) the system of the relations between the bodies of the public authority, under which the control body can repeal the acts of the controlled body369; б) the special type of the law enforcement activity in state, which lies in the examination of the correspondence of the laws and other normative acts of the given country370; в) the work, in the course of which the competent state bodies examine, identify, note and eliminate the identified noncompliance of the positions of the normative acts to the constitution371. The doctrine differentiates the notions “constitutional control” and “constitutional oversight”, although in the line of works they are used as relative and synonymous372. Thus, the core difference is the independent place in the system of division of the state bodies and their independence in accomplishing the authority, and taking decisions, which are definitive.373 Depending on the features of the constitutional control activities are made to distinguish concrete and abstract (for holding), preliminary and subsequent (time of event), the optional and obligatory (according to the degree of review necessity), an advisory and operative (legal consequences)374. In the legal tradition of different countries, the functions of the constitutional control bodies are often interpreted through the category of “negative” legislator (repealing legal norms in connection with their inconsistency with the basic law). This approach is based on the studies of G. Kelsen, who argued that the legal norm has neither truth nor falsity, it can only be valid or invalid.375

369 Constitutional law of foreign countries: in 4 vols. edited by B.A. Strashun. Moscow, 1995. Vol. p. 72. 370 Rumyantsev O.G., Dronov, V. N. Legal encyclopedic dictionary. Moscow, 1997. P. 384. 371 Shulzhenko Yu.L. constitutional control in Russia. Moscow, 1995. P. 9. 372 See, e.g.: Ilyinsky I.P., Shchetinin B. V. constitutional control and protection of constitutional legality in socialist countries / / Soviet state and law. 1969. No. 9. Pp. 40-48. Constitutional control in Russia. Moscow, 1995. p. 9. 373 Ebzeev B.S. Constitution. Legal state. constitutional court. Moscow: Norma, 1996. Pp. 117. 374 Nesmeyanova S.E. Theoretical and legal study of constitutional judicial control in the Russian Federation: Diss. ... d-RA yurid. Sciences: 12.00.02. Ekaterinburg, 2006. Pp. 65-77. 375 The pure doctrine of law by Hans Kelsen. Moscow: Nauka, 1987. Pp. 32. 268 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The ideas of G. Kelsen were the basis for the creation in 1920 of the Constitutional Court of Austria and the regulation of its work. In fact, the quintessence of Kelsen’s model of constitutional control is “negative” lawmaking. In the modern period, the activities of the constitutional control bodies manifest the functions of a “positive” legislator, creating or modernizing legal norms, which are the result of the evolution of ideas about constitutional control376. General or similar are the main tasks that are solved by specialized bodies of constitutional control: verification, identification, ascertainment, elimination of inconsistencies of various acts of the Constitution; participation in the resolution of controversial issues of constitutional importance; influencing the development and improvement of legislation; performing the role of checks and balances of the authorities — primarily legislative and executive, ensuring their balance. Addressing the world experience, we can mark that in modern democratic states several classical models of the judicial (quasi-judicial) constitutional control, that is accomplished: -courts of general jurisdiction (in Argentina, Norway, USA, Japan, etc. - any General court; in Australia, India, Malta, etc. - only the Supreme court) - “American” model; - constitutional courts (in Austria, Belarus, Italy, Spain, Russia, Germany, etc.) “European” (Austrian) model; - quasi-judicial bodies, for example, the Constitutional Council (in Kazakhstan, Lebanon, Morocco, Mozambique, Senegal, Tunisia, France) “European” (French) model.377 Besides, in a line of states the specialized bodies, for which the constitutional control is the basic activity (for example, the Council of the constitutional investigations (Namibia), Sri-Lanka, Ethiopia)), the religious- constitutional court (usually exists in theocratic states and is based on the supremacy of Koran over the Constitution, such as the Iranian Constitution

376 Klishas A.A., Eremyan V.V. constitutional control and constitutional justice of foreign countries: a comparative legal study. Moscow: International relations, 2015. Pp. 51. 377 Podr. see: Ostapovich I.Yu. Judicial constitutional control and rule-making: problems of correla- tion. Moscow: Infra-M, RIOR, 2015. 230 PP. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 269 guardian Council), they should be attributed to the “Islamic” model. There are also other types of judicial constitutional control, for example, the “Iberian” (South American) model” (model of specialized justice in Latin America, which combines, with a certain modernization, into a single whole the most important elements of judicial constitutional control of the anglo-saxon and continental legal systems) 378. Thus, depending on the model of constitutional control implemented in the state, national legal systems may reflect: - establishment of a specialized body of constitutional control related to the judiciary, or occupying an independent position in the system of separation of powers (not included in it); - provision of constitutional control functions to higher courts or a wide range of courts of general jurisdiction; - granting a specialized judicial or quasi-judicial body of constitutional control exclusive powers to interpret the Constitution, verify the constitutionality of adopted or already existing normative legal acts; -empowerment of this body with other competence, not related to the law- making sphere (the review of the constitutionality of elections conducting, realization of the procedure of the head of state and others). Specialized constitutional control is carried out by specially created competent bodies authorized to check, identify, ascertain and eliminate inconsistencies of normative acts of the Constitution. The function of judicial constitutional control in a number of countries is performed by the courts, in which the Supreme court is the last instance. They are not specialized, as they consider general cases along with constitutional control issues. Based on these differences in the future, this article will show the features of specialized constitutional control bodies-the constitutional court and the constitutional council, which, unlike courts of general jurisdiction, have special jurisdiction-constitutional, carried out through independent constitutional

378 Podr. see: Klishas A.A. constitutional control and constitutional justice in foreign countries: Diss. ... d-RA yurid. Sciences: 12.00.02. Moscow, 2007. 571 p.; Klishas A.A. “Iberian” (South American) model of judicial constitutional control / / Russian justice. 2007. No. 7 (15). Pp. 76-89. 270 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY proceedings. As a rule, the model of specialized bodies of constitutional control was developed in countries with the romano-german legal system. In reference of the legal system of the Republic of Kazakhstan there are several scientific approaches. In accordance with one of them the legal system of the post-soviet states, to which the Republic of Kazakhstan refers, as the core of the former socialist legal family retains its independent character, has significant features and does not belong to any other legal family379. The essence of the second scientific approach is that the post-soviet law was always and is now the integral part of the Roman-German law (R. David, K. Geoffrey-Spinosi)380. According to the third position, the system of law in these countries has a relatively independent character, specific features inherent only to it, but also has a lot in common, similar to the Romano-German law, to which it is closer than to other legal families (L.V. Lazarev) 381. At the same time, the legal system of the Republic of Kazakhstan is currently in a transitional state, open to the exchange of ideas, experience and interaction with any system of law382. This specificity explains the choice of institutions for the protection ofthe Constitution in the Republic of Kazakhstan, as well as their certain, in some cases, dual nature, which differs from the classical models of specialized constitutional control bodies. Despite the fact that the formation of this institution originally began with the verification of laws, over time the number and types of objects ofits verification gradually grew, and today this set is usually individual. However, despite the peculiarities, there are a number of issues, the solution of which belongs exclusively to the competence (jurisdiction) of specialized bodies of constitutional control.

379 Marchenko M.N. Problems of the theory of state and law: studies. Moscow: Prospect, 2008. Pp. 264. 380 David R., Geoffrey-Spinosi K. Basic legal systems of modernity. Moscow: Norma, 1999. Pp. 30-31. 381 Comment to the Constitution of the Russian Federation / ed. Moscow: LLC “New legal culture”, 2009. Pp. 44. 382 Will the Anglo-Saxon system of law take root in Kazakhstan? [Electronic resource] // Liter. Repub- lican socio-political newspaper. Access mode: URL: http://liter.kz/ru/articles/show/11377-prizhiv_ tsya_li_anglosaksonskaya_sistema_prava_v_kazahstane (accessed 18.07.2017). REPRESENTATIVES OF THE ACADEMIC COMMUNITY 271

For example, the powers of specialized bodies of constitutional control in the field of law-making, taking into account the functional content of their activities, can be defined as follows. Firstly, the ensuring of the constitution direct and immediate effect, the realization of which is connected with the interpretation of the constitutional norms, elaboration of the constitutional positions, compulsory in law- enforcement practice. Secondly, the development of the legal system in direction of the constitutional legitimacy ensuring. The realization of this competence reflects character and grade of the participation of the constitutional control in that sphere of the lawmaking, that is connected with making amendments in the acting legislation. Thirdly, definition of parameters of development of the legislation on the basis of provisions of the Constitution for which realization identification and overcoming of gaps and legal uncertainty in the operating system of legal regulation is characteristic. In the fourth, the protection of the constitutional rights and freedoms of the man and citizen by means of norm-control. Thus, the integral notion of the norm-control in the judicial science is not formed. The existing opinions concerning this definition can be grouped as follows. According to the first approach (functional) the norm-control is a function of the state bodies383 or the bodies of the constitutional justice384. In the frames of the second, the notions “norm-control” and “constitutional control” are mostly identified.385 The third approach is based on the recognition of the norm-control as the form of the rule making386. In the fifth, other functions, that do not refer to the sphere of rule-making

383 Ershov V.V. Recognition of normative legal acts contradicting the Constitution of the Russian Federation and Federal laws: theory of the issue. 2003. No. 4. C. 9. 384 Mityukov M.A. Constitutional courts in the post-Soviet space. M.: Moscow public science Foundation, 1999. Pp. 55. 385 Kharitonova N.N. Functions of constitutional control bodies. Constitutional and municipal law. 2005. No. 5. Pp. 43-48. 386 Kazhlaev S.A. on rulemaking of the constitutional Court of the Russian Federation. Journal of Russian law. 2004. No. 9. Pp. 26-33. 272 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY and law-enforcement directly, having only indirect connection with them. We can refer only consultative and provision authorities, initiation of special legal procedures (impeachment, referendum), resolving the arguments on the competence. The introduction of the institution of constitutional control in its modern form was one of the achievements of state and legal reforms that occurred during the formation of the Republic of Kazakhstan. Neither to the pre- revolutionary, nor to the Soviet period of development of Kazakhstan such type of specialized body of constitutional control was peculiar. At the same time, the assertion of the rule of law, regardless of what political trends dominate in the country, has been formed long before387. Later, during the formation of the Union of Soviet Socialist Republics, it became necessary to discuss and resolve the issue of the mechanism of “ensuring supervision of legality from the point of view of the Constitution and all-Union legislation”388. The prehistory of domestic constitutional justice is characterized by the period of the Supreme Court of the USSR checking the constitutionality of acts of the Central authorities of the USSR and the Union republics (1924-1933)389. At the same time in the Soviet legal literature the relation to constitutional control (supervision) had dual character. According to one approach, it is a guarantee of the validity of legal norms, and the interaction between Parliament and the Constitutional Court serves as a basis for the protection of human rights390. According to another, judicial constitutional control has a pronounced political color, is a bourgeois element of the Constitution and contributes to the weakening of the independence of the Parliament 391.

387 Kistyakovsky B.A. Social Sciences and law. M., 1916. p. 654; Yashchenko A. Theory of federal- ism. Experience of synthetic theory of law and state. Yur’ev, 1912. Pp. 352-353. 388 Stuchka P. of the USSR and RSFSR. The Soviet Constitution in questions and answers. 4th reprint and additional edition. Moscow: Prometheus, 1924. p. 58. 389 For more details, see: Mityukov M.A. Judicial constitutional supervision 1924-1933: questions of history, theory and practice. Moscow: Formula of law, 2005.p. 208 390 Dadiani L. To the question of the essence, forms and evaluation of the Institute of constitutional supervision / / Proceedings of the peoples ‘ friendship University. P. Lumumba. T. XX. Economics and law. M., 1967. Vol. 2. Pp. 39-64; Ledyakh I. A. Bourgeois constitutions during the General crisis of capitalism. Moscow: Nauka, 1966. Pp. 282-333. 391 Vildanov R.H. constitutions in the political system of bourgeois society. Moscow: Nauka, 1968. Pp. 125-140; Levin I.D. Collapse of bourgeois democracy and modern state law of capitalist coun- tries. Vol. 1. USA. Moscow: Gosyurizdat, 1951. p. 61. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 273

Studying the peculiarities of the constitutional control institute establishment in Kazakhstan, it is appropriate to analyze the positions of the constitutions, adopted in the soviet period. Firstly, it is necessary for setting the extent of the continuity of the constitutional- legal development. Secondly, this is necessary for defining of the possible directions of the constitutional- legal transformations. As it well-known, Kazakhstan- is the former union republic of USSR. That is why it is relevant to begin the consideration of the sources of establishment of the bodies of constitutions management from those times. The formation of the institutes of constitutions protection in Kazakhstan chronologically precede the periods of development of protection of the constitutional forms, defining the ideology, state and political system, political regime in the country. We can single out the next stages following this position. The first stage- the formal protection of the constitution by the highest bodies of representative power in conditions, excluding the division of the state power. Of course, on this stage, the specialized body of the constitutional control was absent. (20 - 80 of ХХ c.). The second stage – the establishment of the Committee of the constitutional supervision of USSR and attempt of establishment of similar bodies in soviet republics (1988 — 1991). The third stage is the establishment of the Constitutional Court of the Republic of Kazakhstan (1991-1995) as a specialized body of constitutional control reflecting the democratic principle of separation of powers declared by the state. The fourth stage is the reorganization of the Constitutional Council of the Republic of Kazakhstan (1996-present). Although the legal literature has firmly established the opinion that the institution of specialized protection of the Constitution is relatively new for the state-legal practice of Kazakhstan392 and its establishment is associated with

392 He touched upon the use of I. J. of constitutional supervision of the Prosecutor’s office of the Re- public of Kazakhstan: dis. . .. d -RA y urid. s ciences’. M oscow,2 008. P .3 2; S ee Nurmagambetov a .m. the O rigins o f K azakhstan’s constitutionalism . 2015. 29 Aug. 274 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY the processes of democratization of society, glasnost (transparency), it should be noted that some of its elements were fixed at the legislative level during the existence of the USSR393. The first Constitution of Kazakh ASSR, existing within RSFSR till February 1926394 based on the recognition of the justice of people’s power and the complete impossibility of making some erroneous decisions by the truly people’s power. Consequently, there was no need to establish the institution of constitutional control. The interpretation of constitutional provisions was equally unnecessary. Later, the USSR Constitution of 1924 established two levels of legislative power (Congress of Soviets of the USSR and the Central Executive Committee). In this regard, the need to use specific conciliation mechanisms in the legislative process was recognized at the constitutional level. Thus, by virtue of the provisions enshrined in Chapter 4 of the Constitution, the Union Council and the Council of Nationalities, as part of the bicameral Parliament, were given broad powers to consider bills. The subjects of right to the legislative initiative were represented by wide circle of bodies (The presidium of CEC, that was engaged in legislation drafting alongside with the Council of People’s commissioners, central executive committees of the union republics). In so doing, consensus-building in the presence of disagreements was carried out through a specially created conciliation Commission, or a joint meeting, or a regular or extraordinary Congress of Soviets. At the same time, the provision enshrined in the system of powers of the Supreme Court of the USSR in article 43 of the Constitution of the USSR is of undoubted interest. By virtue of this provision, it was entitled to give opinions at the request of the CEC of the USSR on the legality of certain resolutions of the Union republics from the point of view of the Constitution. Here we can see the origin of the foundations of constitutional control, albeit in the most simplified form. Nevertheless, the Soviet legislator in the Union Constitution recognized

393 Mityukov M.A. Interrupted experience: to the history of judicial constitutional supervision in the USSR (1924-1933) / / Russian judge. 2005. No. 7. Pp. 40-43. 394 Until February 1926, it was called the Kyrgyz ASSR. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 275 possible the legal mechanism of elimination of contradictions of the regional legislation (Union republics) and the Basic Law though in some works especially recommendatory character of conclusions of the Supreme Court is emphasized395. Thus, the Supreme Court of the USSR had limited functions in the sphere of Constitution protection396, but this tendency to separate the function of constitutional supervision from the bodies of state power and administration did not concern the republics. In the future, the Constitution of the USSR of 1936 did not include the Supreme Court of the USSR in the mechanism of constitutional supervision, it was silent about the right of the Union republics to protest in any form the acts of the all-Union bodies of state power and administration397. Rejecting the idea of judicial constitutional supervision, the Constitution of the USSR of 1936 gave such functions to the Supreme bodies of state power, which had to check the legislation of the Union republics for compliance with the all-Union law. Thus, the right to exercise the function of constitutional control was granted to the Supreme Soviet of the USSR and its Presidium. The latter have also been empowered to interpret laws and the right to cancel the unconstitutional acts of the Federal and the Republican people’s commissars (from 1946 — the Council of ministers). The idea to revive the function of constitutional supervision of the Supreme Court of the USSR and even to create a full and independent judicial body of constitutional supervision has been repeatedly put forward by scientists, especially in the 1960-80 of the XX century398. During the drafting of the new Constitution in the first half of the 1960, ideas were put forward to establish a special body within the Supreme representative body of state power (Constitutional Committee, Commission,

395 Mityukov M.A. Judicial constitutional supervision, 1924-1933: essence, purpose and character- istic features / / Law and politics. 2005. No. 12. Pp. 48-62. 396 Regulations on the Supreme Court of the USSR, UTV. resolution of the CEC of the USSR on No- vember 23. 1923 / / Bulletin of the CEC, SNK and SRT of the USSR. 1923. No. 10. 311. 397 For details, see: Kerimov D.A., Ekimov A.I. constitutional supervision in the USSR / / Soviet state and law. 1990. No. 9. Pp. 4-7. 398 See, e.g.: Shafir M.A. Competence of the USSR and the Union Republic (constitutional issues). Moscow: Nauka, 1968. p. 216; Vengerov A. B. Problems of direct action of Soviet constitutional norms. Problems of constitutional law: collection of articles. Saratov, 1969. Pp. 79-82; et al. 276 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Council, etc.), which was supposed to be entrusted with the function of constitutional supervision. It was proposed to create a protective constitutional committee (the proposal of I.A. Rudakov), the Committee of constitutional supervision (the proposal of the Institute of state and law of the USSR Academy of Sciences). K.D. Mukhamedshin (Karaganda) justified the need to create a Constitutional Council-a permanent supervisory body of the Supreme Soviet of the USSR, elected by and accountable to it. The competence and procedure of the Constitutional Council, according to the scientist, should be determined by law. In addition, K.D. Mukhamedshin proposed to create similar bodies in the republics399. Taking into account the practice of a number of countries of the socialist camp, in which constitutional courts were established, their experience was considered as a prerequisite for the establishment of certain forms of constitutional control in the USSR. At the same time, attention was focused on their activities as exceptional for the socialist system. On the other hand, it was assessed from the point of view of the supremacy of the legislative power in a democratic state and the non-control of the activities of the Parliament by the courts or other bodies400. However, these ideas did not get their development401, and in new Constitution of USSR adopted in 1977 (p. 5 art. 121) the competence on the interpretation of the laws were preserved within the Presidium of the Supreme Council of USSR. Article 173 of the Constitution of the USSR of 1977 proclaimed the supreme legal force of the Constitution and the potential compliance of laws and other acts of state bodies with it.

399 Cyte. on: Mityukov M.A. on the Genesis of domestic constitutional justice (ideas, proposals, proj- ects of the 30s-the first half of the 60s of the twentieth century.) / / Legal problems of strengthening the Russian state: collection of articles. CH. 14 / ed. Tomsk: Publishing house Vol. University press, 2003. p. 97; Aka Judicial constitutional supervision 1924-1933: questions of history, theory and practice / Mityukov M.A.: Formula of law, 2005p. 208. 400 Ilyinsky I.P., Shchetinin B.V. constitutional control and protection of constitutional legality in socialist countries / / Soviet state and law. 1969. No. 9. Pp. 11-14; Kuznetsov I.N. The role of the constitutional legislation of European socialist countries in the approval of the regime of socialist legality. 1971. Vol. 25. Pp. 91-97. 401 Detailes: Mityukov M.A. on some little-known subjects of the Genesis of domestic constitutional justice / / the Constitution of the Russian Federation and the development of legislation in the mod- ern period: mater. All-Russian scientific conference. Vol. Moscow, 2003. Pp. 184-191. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 277

In Kazakhstan, the functions of constitutional control were assigned in accordance with the Constitution of the Kazakh SSR in 1978 to the permanent body of the Supreme Soviet of Kazakh SSR — the Presidium of the Supreme Council. The Presidium was empowered to monitor compliance with the Constitution, interpret laws, repeal executive acts, resolutions and orders of the Council of ministers, as well as decisions of local public authorities402. This form of constitutional control has demonstrated low efficiency, it was only natural in a de facto lack of separation of powers: the dominance of the Supreme Soviet as a legislative body in the system of state bodies which are controlled by it, and, as a consequence, the possibility of estimating the highest legislative and representative body of the constitutionality of acts of other, primarily central government. With the beginning of the transformation processes in the USSR, the breaking of the existing system of statehood, an attempt to establish the first specialized body of legal protection of the Constitution is connected. The question of its creation at the official level was raised at the XIX all-union conference of the CPSU (Communist Party of Soviet Union). It was noted that this body should control the compliance of the laws and other legal acts with the Basic Law of the country, for what the additional powers are necessary. It was envisaged that the establishment of such a body would be an additional guarantee of democratic control over the activities of all officials, including those holding the highest positions. After the establishment in 1983 of the Constitutional and legal Council (the body of constitutional supervision of the Hungarian people’s Republic), scholars of state expressed proposals to use the experience of its work in the Soviet Union403. In this period in scientific literature on pages of the periodical press there was a discussion concerning what character the specialized body of legal protection of the Constitution should have. It offered:

402 Constitution (Basic Law) of the Kazakh Soviet Socialist Republic of April 20, 1978 Alma-ATA, 1979. Pp. 3-28. 403 Tumanov V.A. Judicial control over constitutionality of normative acts / / Soviet state and law. 1988. No. 3. p. 17. 278 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

1) transfer the functions of constitutional control to the Supreme Court of the USSR 404; 2) to create at Presidium of the Supreme Soviet of the USSR or at Council of Nationalities or directly at the Supreme Council special supervising body (Committee on constitutional legality, Constitutional Council, Constitutional- legal Council, etc.) 405; 3) to form a body of constitutional control independent of other state bodies 406; establish an independent constitutional court 407. The result of the reform was the implementation of the idea of the Committee of constitutional supervision of the USSR 408. By analogy with the CCS of the USSR, constitutional oversight committees were provided for in the constitutions of a number of Union republics, since article 2 оf the law of the USSR “On constitutional supervision in the USSR” determined that constitutional supervision in the republics is carried out by the constitutional supervision bodies of the Union and Autonomous republics. In practice, the Committee of constitutional supervision in Kazakh SSR was never formed. In Kazakhstan, the constitutional law of 16 December 1991 “On state independence of the Republic of Kazakhstan” for the first time States that the supreme body of judicial protection of the Constitution is the Constitutional Court of the Republic of Kazakhstan409. In accordance with these guidelines,

404 See, e.g.: Savitsky, V.M., Justice and the restructuring of the // Soviet state and law. 1987. No. 9. P. 32-33; Vladimir I. Terebilov the Law and only the law // True. 1987. 5 Dec. S. 2; Topornin B.N. to exclude circumvention of the law / / Izvestia. 1988. 12 Jan. P. 2; Orzikh M.F., Cherkes M.E., Vasiliev A. S. Legal protection of the Constitution in the socialist state / / Soviet state and law. 1988. No. 6. p. 10. 405 Shulzhenko Yu. Authority of the Basic law / / Moskovskaya Pravda. 1988. June 14. P. 1; Tumanov V.A. Judicial control over the constitutionality of normative acts / / Soviet state and law. 1988. No. 3. Pp. 18-19. 406 See, e.g.: Speech Morozova L.A. at the conference in Zvenigorod 18-20 may 1987 / / Soviet stateand law. 1987. No. 11. p. 84. 407 Legal science and practice in the conditions of perestroika / / Kommunist. 1987. No. 14. P. 44; Lebedev N. Need a court! // News. 1988. 12 Nov. C. 3.; Mityukov M.A. On the way to constitutional justice (1986-1991 - opposition of alternatives: constitutional supervision or constitutional court) / / Legal problems of strengthening of the Russian statehood: collection of articles. CH. 17 / ed. Tomsk: Tom. UNT, 2004. Pp. 41-42. 408 Sheets of the Supreme Soviet of the USSR. 1988. No. 49. 727. 409 Constitutional law of the Republic of Kazakhstan of 16 Dec. 1991 // Gazette of the Supreme Soviet of the Kazakh SSR in 1991. No. 51. 622.. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 279 the Laws “On the Constitutional Court of the Republic of Kazakhstan”410 and “On Constitutional Court proceedings” were adopted in 1992411. Constitutional Council of the Republic of Kazakhstan was endowed by wide range of competence, which consisted of three groups. Of the continuity between the unfulfilled idea of the Committee of constitutional supervision and the activities of the Constitutional Court of the Republic of Belarus established at that time can be told only conditionally. First of all, the Constitutional Court was initially proclaimed an independent Supreme state body. The Constitutional Court of the Republic of Kazakhstan was endowed with wide range of competence, which consisted of three groups. First included the examining of the constitutionality of the legal acts, through which it was possible to ensure the compliance of the normative legal acts to the constitution of the state. At the same time, the “standard” of the constitutionality was only the basic law. Thus, in all post-Soviet States in Kazakhstan there was a rejection of the system of “hierarchical” ensuring constitutional compliance with legal acts; the President and the government412. The second group of powers included the issues of checking the constitutionality of the actions of officials. Such powers have the constitutional courts of many countries: participation in the procedure of removal of the head of state from office (Georgia, Kyrgyzstan, Russia) or early release from office (Azerbaijan, Lithuania, Moldova, Tajikistan), or removal from office (Ukraine). In some countries the constitutional courts check the constitutionality of actions of other officers: in Georgia, the President of the Supreme Court, Government members, Prosecutor General, Chairman of the Chamber of control and members of the Board of the National Bank; Kyrgyzstan — Constitutional Court judges, Supreme Court, Supreme Arbitration court; in Lithuania members of the Seimas, the judges of the Constitutional Court, Supreme and Appellate courts 413. The Republic of Kazakhstan intended to follow this path at that time. 410 Councils of Kazakhstan. 1992. June 20. 411 Councils of Kazakhstan. 1992. June 23. 412 Mityukov M.A. Constitutional courts in the post-Soviet space: comparative study of legislation and judicial practice. Moscow: Moscow public scientific Foundation, 1999. p. 55. 413 Mityukov, M.A. The Decree. p. 149. 280 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The third group of powers concerned the constitutionality of the law- enforcement practice, touching upon the constitutional rights of the citizens. Probably, this competence emerged in Kazakhstan under the influence of the first Russian Law on “The Constitutional Court of RSFSR” of 1991. However, in Russian Constitution of 1993 the transition from the estimation of constitutionality of law enforcement practice to the examination of the constitutionality of laws on the complaints of the citizens and inquiries of the courts (such control on the inquiries of the courts in connection with consideration of the particular case is accomplished by modern Constitutional Council). At the same time, it should be noted that the Constitutional Court of Kazakhstan, which was in force until 1995, was not endowed with the most important authority, in particular the official interpretation of the Constitution, although this circumstance was not only “Kazakhstan” specifics. The power to interpret the Constitution is absent in a number of other post-soviet countries: Armenia, Belarus, Georgia, Kyrgyzstan, Latvia, Lithuania, Tajikistan, Estonia. On the contrary, this most important power of constitutional justice takes place in Russia, Azerbaijan, Moldova, Uzbekistan and Ukraine. Meanwhile, interpretation is a functional dominant, which constitutes the deep essence of constitutional control, its qualifying feature414. In addition, the Constitutional Court of Kazakhstan was excluded from the decision-making process on such important issues as establishing the constitutionality of the amendments to the Constitution submitted to a referendum, decisions on holding a referendum (later, with the adoption of the Constitution of Kazakhstan in 1995, the Constitutional Council acquired these powers). A distinctive feature of the original Constitutional Court was the right to initiate proceedings on its own initiative. The Constitutional Council is not currently empowered to hear cases on its own initiative. According to the procedures of proceedings, the constitutional justice of

414 Hovsepyan Zh.I. Judicial constitutional control in foreign countries. Legal protection of the Con- stitution. Rostov n/A: Litera-D., 1992. p. 74. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 281 the Republic of Kazakhstan was vested with the powers of both abstract and specific control, with no provision for preliminary control. The Сonstitutional Court, as a follow-up, could take into consideration the constitutionality of a normative act both without any connection with a specific application, and in connection with its application to specific circumstances. The constitutional control exercised by the Constitutional Court was also material, i.e. it consisted in comparing the content of the act to the compliance with the Constitution, and formal, that is, it allowed checking the correctness of the procedure for the adoption and publication of the relevant legal act, which significantly increased the possibility of the regime of constitutionality of laws. The Constitutional Court made decisions of exceptional importance, so there was a rule that judges do not have the right to publicly express anywhere, except for the sessions of the Constitutional Court, personal opinions on the issue being studied or adopted for consideration by the Constitutional Court, before it decides on this issue. According to the legal consequences, the constitutional control was decisive: the Constitutional Court not only stated the inconsistency of the normative act with the Constitution, but also, most importantly, had the right to invalidate it. This is an important element of the characteristics of the Constitutional Court of Kazakhstan and its main difference from the Committee of constitutional supervision of the USSR. Thus, the Constitutional Court in the Republic of Kazakhstan had wide opportunities in transformation of the legal system. Its competence in the same degree gave the opportunities of restraining both legislative and executive powers. The actions of the range of highest officials, representing all the branches of power, also were in the sphere of control, fulfilled by Constitutional Court. Quite broad was the range of subjects which were granted the right of addressing to this body. These broad powers of the Constitutional Court allowed to initiate the adoption of such decisions, which caused a mixed assessment in society. It was a fundamentally new institution in the history of 282 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY state construction of the Republic of Kazakhstan, which could not rely on the long tradition of constitutional control practice, nor on established customs. Therefore, the shortcomings noted and other difficulties of an objective nature were inevitable for that period415. With the adoption of the Constitution of the Republic of Kazakhstan in 1995, borrowing the French experience, section VI establishes a model of extrajudicial constitutional control — the Сonstitutional Council of Kazakhstan (in the only state in the post-soviet space). This body is focused on the implementation of both subsequent and optional preliminary control. French state-legal experience was widely used in the establishment of the Constitutional Council of the Republic of Kazakhstan. So, the Constitutional Council of France with the three authorization groups: 1) control of constitutionality of normative acts as a subsequent (which appeared in France during the constitutional reform of 2008)416, and preliminary, when required subject to verification of all organic laws before their signing by the President; 2) control over the accuracy of the electoral operations on a national scale (the President of the Republic and parliamentarians); 3) control over the constitutionality of national electoral mandates (i.e. mandates of the head of state, deputies and senators)417. At the same time, in France, as well as in Kazakhstan, the functions of the Constitutional Council began to resemble the functions of the Constitutional Court 418. It should be noted that in the course of this reform, the Senate of France proposed to rename the Constitutional Council of France in the “Constitutional Court”, as well as to

415 Workshop on constitutional control in the Republic of Kazakhstan: studies. POS / V.A. Ma- linovskii, and S.S. Romanov. Almaty: Aysan-Service, 2015. p.656; Amandykova S.K., Malinovsky V.A. The role of the constitutional Court of the Republic of Kazakhstan in the formation of the con- stitutional doctrine of Kazakhstan. Moscow, 2012. No. 10 (53). Pp. 79-84 416 Kokotova M.A. Checking the constitutionality of laws on citizens ‘ appeals by the constitutional control bodies of Russia and France: comparative legal research: Cand. the faculty of law. Sciences: 12.00.02. Ekaterinburg, 2015. Pp. 13-14. 417 Krutogolov M.A. Constitutional Council of France. Organizational and legal aspects of activity / Krutogolov M.A.; Rel. ed.: Uryas Yu.P. M.: Nauka, 1993. P. 71. 418 For details on the 2008 constitutional reform, see e.g.: Maslovskaya T.S. Constitutional reform in France / / Bulletin of the Constitutional Court of Belarus. 2009. No. 1. Pp. 143-153; Danilenko D.V. Modern form of government in France and constitutional reform of July 23, 2008 / / Law and poli- tics. 2008. No. 12. Pp. 2865-2870; Karpenko K.V. Institute of subsequent (concrete) constitutional control in France / / Journal of foreign legislation and comparative law. 2013. No. 5. Pp. 780-790. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 283 abolish the membership of the Council of former presidents of the Republic. However, the Senate amendments did not pass the second reading in the National Assembly, and therefore did not get into the text of the constitutional revision419. In the Republic of Kazakhstan, the Constitutional Council has similar powers and has proved to be in demand in the modern period of the country’s development. In addition, Kazakhstan lawyers consider it the most optimal body in a strong presidential system420. Despite the fact that the organization of the work of the constitutional councils differs significantly from the organization of the work of the constitutional courts, which has been repeatedly noted in the literature421, the changes related to their status and powers allow us to say that the Constitutional Council of Kazakhstan, like the Constitutional Council of France, is similar in its characteristics to the judicial model of constitutional control. Thus, in the presence of the post-soviet “platform” and the experience of the Union Committee of constitutional supervision, which influenced the establishment of a specialized body of constitutional control in Kazakhstan, this institution has evolved in accordance with national legal traditions. In the future, the development of specialized bodies of constitutional control of Kazakhstan was influenced to a certain extent by internal reforms and constitutional crisis phenomena, in overcoming which they participated as much as possible. The above-mentioned distinguishes Kazakhstan from other post-soviet countries, in which, as a rule, the classical models chosen by them are implemented and the legislatively fixed powers of specialized bodies of constitutional control do not differ much from foreign borrowed analogues. In turn, Kazakhstan continues to have numerous metamorphoses

419 Antonov A.V. the Reform of the constitutional Council of France // Journal of constitutional justice. 2011. No. 2. Pp. 27-39. 420 Nurzhanova A.A. Implementation of constitutional control by the Constitutional Council of the Republic of Kazakhstan: dis. ... kand. the faculty of law science: 12.00.02. Chelyabinsk, 2006. P. 6; Taitorina B.A. Institute of constitutional control of the Republic of Kazakhstan in historical retrospect / / Eurasian legal journal. 2010. No. 4. Pp. 19-22. 421 See, e.g.: Malinovsky V.A. Constitutional Councils of Kazakhstan and France: some facts of com- parison / / State and law. 2013. No. 2 (59). 284 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY associated with the transformation of chosen model of a specialized body of constitutional control. In particular, this is due to a change in its status, legal force of decisions, the procedure for adoption, formation, etc. As already noted above, the “European” (French) model of the Constitutional Council in Kazakhstan expresses a vivid dualism - strengthening the Council with the powers of the Court422. These metamorphoses allow us to conclude that today the body of constitutional control in Kazakhstan has become an independent participant in rule-making and law enforcement activities. At the same time, the extrajudicial principle of the activity of the constitutional control body did not affect its dynamics. The Сonstitutional Council of the Republic of Kazakhstan can be described as a specialized quasi-judicial body of constitutional control (for example, it interprets constitutional norms, carries out subsequent constitutional control at the request of the courts, etc.). At the same time, foreign experience, so necessary in the process of organization and formation of mechanisms of constitutional control, has acquired a special specificity, which allows to characterize the activities of the Constitutional Council of the Republic of Kazakhstan as having an exceptional norm-making potential. Summing up, I would like to note that 2019 was marked by significant historical events for Kazakhstan’s statehood and constitutional identity. A smooth process of transfer of Supreme power has been implemented. It seems that the role of the Constitutional Council of the Republic of Kazakhstan plays a significant role in this process. In its Message of June 5 2019 “On constitutional legality in the Republic of Kazakhstan” states: “In the new constitutional realities must continue to raise the authority of the Basic Law, to continue the formation of the state constitutional patriotism. Its main principles are the rule of law and the rule of law, universal law-abiding and security, freedom and responsibility. Further development of constitutional

422 Kazakh scientists come to such conclusions, in particular, the literature notes that “... the Consti- tutional Council of the Republic of Kazakhstan has the main characteristics of constitutional courts in terms of the set of functions and powers, the legal force of decisions”. Podr. on this, see: Practice on constitutional control in the Republic of Kazakhstan: Uch. POS. / V.A. Malinovsky, Sh. Ormanova. Almaty: Aysan-Service, 2015. p. 8. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 285 values in the legislation and organizational and practical activity of state bodies will contribute to sustainable and consistent strengthening of the state Independence of the Republic of Kazakhstan» 423. Thus, the modern Constitutional Council of the Republic of Kazakhstan was formed as an independent body of constitutional control and has the following characteristics: - functional diversity, including normative and law enforcement areas; - the special status of decisions in the hierarchy of sources of law, implying their ability to adjust (upgrade) the content of other normative legal acts; - active influence on the constitutionalization of the national legal system by disqualifying unconstitutional norms or revealing the constitutional and legal meaning of the norms under consideration, as well as the permissible conditions for their application; - interaction with the legislative authorities, implemented as an active participation in the legislative process, and through the implementation of decisions in the text of the adopted laws; - impact on law enforcement practice, as a result of which the decisions of the constitutional control body containing general constitutional rules are necessary to make a legal and reasonable decision on judicial disputes.

423 Access regime: URL: http://ksrk.gov.kz/solutions/poslanie-konstitucionnogo-soveta-respubliki- kazakhstan-ot 5-iyunya-2019-goda-o-sostoyanii (date of address — 20.08.2019). 286 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Maria LIPCHANSKAYA Head of the Department of constitutional law Saratov State Law Academy, Doctor of law, professor CULTURAL RIGHTS OF CITIZENS IN RUSSIAN FEDERATION AND THE REPUBLIC OF KAZAKHSTAN: CONSTITUTIONAL DIMENSION

n addition to the obvious, basic needs for food, security, housing, etc. almost everyone experiences needs of a higher level. These are, in particular, the need for information, belonging to a certain social group, respect and others. The highest level of needs is the need to harmonize life,I to fill it with beauty, art, as well as-in self-development, spiritual and cultural improvement. This hierarchy of needs was proposed by the famous American psychologist Abraham Maslow in the middle of the XX century, and, despite some criticism and some clarifications, is recognized by most experts today. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 287

The modern legal state, the purpose of existence of which is the realization of the interests of members of its society, provides it, in particular, by fixing in the constitutional norms - as well as in the positive legislation-the most important rights and freedoms of the individual. At the same time, it is easy to see that the evolution of human and civil rights and freedoms in the constitutions of various States and international legal instruments correlates to a certain extent with the same hierarchy of needs. Maslow: first of all guaranteed personal rights and freedoms (right to life, right to integrity and freedom of movement, etc. – low level requirements); then political rights (to elect and be elected); to participate in managing state affairs, the average level of needs); further socio-economic rights and freedoms (freedom of labor; the right to entrepreneurial activity, etc.) - the last in this chain - but not least - are the so-called cultural rights, describing just the highest level of development needs of the individual – in self-realization, on creativity, and spiritual development, and the like. Their appearance in the constitutions of most European States falls around the middle of the XX century; at the international legal level, they were enshrined in 1966 in the International Covenant on economic, social and cultural rights, adopted on 16.12.1966 by Resolution 2200 (XXI) at the 1496 plenary session of the UN General Assembly. This document was ratified by decree of the Presidium of the Supreme Soviet of the USSR dated 18.09.1973 No. 4812-VIII with a statement; the Russian Federation undertakes to comply with it as the successor of the Soviet Union. As for Kazakhstan, it ratified the International Covenant on economic, social and cultural rights on November 21, 2005. What kind of rights according to the norms of this pact and positions of the national legislation are related to the cultural? According to A. Morozova, the cultural rights have to be taken as claims for using of material and spiritual benefits in the corresponding sphere (in the sphere of culture). As for the cultural freedoms, they in contrast to rights are considered as an opportunity, provided by state, for independently realization by the citizens of their capabilities in the cultural sphere424. A. Bezrukov considers that those, directed on the provision of peoples opportunities for the creative development, enculturation to the

424 Morozova A.N. Constitutional and legal guarantees of citizens ‘ participation in the cultural life of Russian society: abstract. cand.of law. the faculty of law. sciences. Moscow, 2005. P. 8 - 9. 288 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY needs of its own and other peoples, civilizations, expanding and improvement of the cultural environment under the cultural rights and freedoms can be named as a cultural rights and freedoms425. The scope of these rights varies, according to various experts. Some of them refer to cultural rights only the rights to freedom of creativity and access to cultural values, many add to this the right to education, some include in this list the right to use the native language and even the right to freedom of teaching and research - and so on. It seems to us that in this respect we can talk about cultural rights in a broad and narrow sense. In a broad sense, cultural rights undoubtedly include a significant number of human and civil rights and freedoms, since almost all of them can be realized in the cultural sphere. Thus, freedom of work can be considered in the aspect of labor activity for the creation of cultural values; the right to participate in the management of state affairs-in relation to the implementation of the functions of state management of the cultural sphere; the right to information-as the right to information about cultural heritage sites, etc. However, we do not see this approach as very promising. At its most extreme, it distorts the specificity of cultural rights by blurring their boundaries. Of course, some constitutional rights and freedoms of the individual are objectively “borderline”, which can be attributed to both the group of cultural rights and other groups (here in General it is worth remembering that the classification of human rights and freedoms depending on their content, like any other classification, is to a certain extent conditional). For example, the right to education, on the one hand, being a necessary condition of socialization of the person, the requirement for possibility of its inclusion in public life and successful further implementation of labor or other socially useful activity, and, guaranteed, thus, not below a certain level by the state, in this plan, undoubtedly, is the right social. On the other hand, the right to education is objectively connected with the self-development of a person, obtaining not only new knowledge, but also increasing his spiritual level, enculturation to national and world culture. From this point of view, this right may well be

425 Bezrukov A.V. Constitutional law of Russia: a textbook. 3rd ed., rev. and extra M: Yustitsinform, 2015. Pp. 120. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 289 classified as a group of cultural rights. Accordingly, some specialists, refer the constitutional right for education to the cultural rights426, others presume it a social (or social-economic) right427. There are another points of view, in particular, in offered by Office of the Higher Commissioner of the United Nations classification of rights and freedoms of the man for education is singled out into the separate group, not being referred to social or cultural rights428. With regard to the analysis of the cultural rights of man and citizens in Kazakhstan and Russian Federation we will further come out of the narrow understanding, in the frames of which under the cultural rights the rights, connected with the creation or access to the cultural objects are understood. Such cultural rights are fixed as in the constitutions of the considered states so in the legislative acts as well. To begin with let’s address, accordingly, the constitutions of the Russian Federation and the Republic of Kazakhstan for comparison. At present the Constitution of Russian Federation contains article 46, directly devoted to the cultural rights. This article, in particular, guarantees the freedom of literal, art, scientific, technical and other kinds of art, teaching (p.1), and consolidates the right for participation in the cultural life and using the institutions of culture, access to the cultural values (p. 2). The Constitution of the Republic of Kazakhstan does not contain the right exactly corresponding to the one enshrined in part 2 of article 46 of the Constitution of the Russian Federation. As for the right to freedom of creativity, it is formulated in part 1 of article 20 as follows: “Freedom of speech and creativity are guaranteed. Censorship is prohibited.” At the same time, the Constitution of the Republic of Kazakhstan contains another cultural right- “Everyone has the right to use their native language and culture, to freely

426 See for example: Shahray S.M. Constitutional law of the Russian Federation: textbook for academic undergraduate and graduate studies. 4th ed., ISM. and additional M.: Statute, 2017; Constitutional law: University course: textbook: in 2 vols. / ed. A.I. Kazannik, A.N. Kostyukov. Moscow: Prospect, 2015. Vol. 2; et al. 427 See for example: Shahray S.M. Constitutional law of the Russian Federation: textbook for academic undergraduate and graduate studies. 4th ed., ISM. and additional M.: Statute, 2017; Constitutional law: University course: textbook: in 2 vols. / ed. A.I. Kazannik, A.N. Kostyukov. Moscow: Prospect, 2015. Vol. 2; et al. 428 Frequently asked questions on economic, social and cultural rights. Narrative. No. 33. Office of The United Nations High Commissioner for human rights. Printed at United Nations, Geneva. GE. 08-44593-March 2009-1, 570. 290 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY choose the language of communication, education, training and creativity” (part 2 of article 19). As the commentators of this rule note: “Kazakhstan is for every nation to live a full-blooded life, revive its traditions, culture, language, so that all Kazakhstan citizens have equal rights and opportunities regardless of nationality, language, religion, feel like citizens of sovereign Kazakhstan and are proud of it»429. For comparison: part 2 of article 26 of the Constitution of the Russian Federation establishes that everyone has the right to use their native language, to freely choose the language of communication, education, training and creativity, there is no indication of the right to use their native culture, but in fact it follows from part 2 of article 46. In passing, we note that both analyzed constitutions contain one constitutional obligation, obviously related to the cultural sphere: - everyone is obliged to take care of preservation of historical and cultural heritage, to protect monuments of history and culture (part 3 of article 46 of the Constitution of the Russian Federation); - citizens of the Republic of Kazakhstan are obliged to take care of preservation of historical and cultural heritage, to protect monuments of history and culture (article 37 of the Constitution of the Republic of Kazakhstan). In General, it can be stated that the approach in both States to the consolidation of constitutional rights, freedoms and obligations in the cultural sphere is approximately the same. In the system view all of them are presented in the following table:

429 The Constitution of the Republic of Kazakhstan. Scientific-practical conference, Astana 2018, 2018. P.124. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 291

№ Cultural rights and Constitution of the Republic Constitution of Russian freedoms of Kazakhstan Federation 1. Freedom of speech Freedom of speech and Everyone is guaranteed the and creativity creativity are guaranteed. freedom of thought and Censorship is prohibited (p. speech (p. 1 art. 29). 1 art. 20) Everyone is guaranteed the freedom of literal, art, scientific, technical and other kinds of art, teaching (p. 1 art. 44) 2. Right for using the Everyone is entitled to use Everyone has the right to cultural objects their native language and participate in the cultural culture, to freely choose the life and use of the cultural language of communication, institutions, access to the education, training and cultural values. (p. 2 art. creativity (p. 2 art. 19). 44) Cultural obligations 1. Duty to preserve Everyone is obliged to Citizens of the Republic of historical and take care of preservation Kazakhstan are obliged to cultural heritage of historical and cultural take care of preservation heritage, to protect of historical and cultural monuments of history and heritage, to protect culture (part 3 of article 46) monuments of history and culture (art. 37)

As it can be seen, the difference in wording is not fundamental. The Constitution of the Russian Federation specifies the types of creativity, while the Constitution of the Republic speaks about the right to freedom of creativity in a more General form. The Constitution of Kazakhstan emphasizes the right to use the native culture, the Russian Constitution indicates the possibility of access to any cultural objects. Some essential difference of approaches takes place only in relation to duties: according to constitutional norms only citizens of the Republic of Kazakhstan are obliged to take care of preservation of historical and cultural heritage, to protect monuments of history and culture, the Constitution of the Russian Federation imposes the same duty on «everyone». Constitutional provisions on cultural rights and freedoms are developed in the positive legislation of the Russian Federation and the Republic of 292 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Kazakhstan. In Russia first of all it is possible to allocate Bases of the legislation of the Russian Federation on culture approved by the Supreme Council of the Russian Federation still on October 9, 1992. This legislative act contains, in particular, definitions of such concepts as «cultural activities», «cultural benefits», «cultural heritage of the peoples of the Russian Federation”, “cultural aspects of development programs», etc. In the development of this basic law for the entire sphere of culture, the most important Federal law No. 73-FZ of 25.06.2002 “On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation” was also adopted in the Russian Federation. The said normative legal act establishes requirements for the preservation, maintenance and access to cultural heritage sites, the duties of users, owners and other legal owners of monuments, details and clearly delineates the powers of Federal, regional and municipal bodies for the protection of cultural heritage, specifies the powers of the Federal body for the protection of cultural heritage in respect of control over the activities of regional bodies for the protection of monuments430. The basic law No. 207-III of December 15, 2006 “On culture” is also in force in the Republic of Kazakhstan. It primarily defines the main terms: “culture”, “cultural values”, “cultural heritage”, “national cultural heritage”, etc. The peculiarity of the interpretation of cultural values in comparison with the Russian law is the religious significance as a criterion for the allocation of cultural value, while in the Russian legislation on religious purpose it is only in special laws: on monuments (as immovable objects of cultural heritage), as well as on displaced cultural values as a result of the Second world war. The peculiarity of the legislation of Kazakhstan is the definition of artistic values as “created as a result of creative activity”431. Kazakhstan’s legislation also includes a law similar in purpose and scope to the Russian Federal law No. 73-FZ-the Law of the Republic of Kazakhstan of

430 Lipchanskaya M.A. Constitutional bases of the state policy of the Russian Federation in relation to cultural heritage. Izvestiya Saratov University. New series. Series “ Economy. Management. Right». 2016. Vol. 16. Vol. 3.P.138 431 Mikheeva I.V., Loginova A.S. Variability of the normative consolidation of the concept of “cultural values” in the legislation of the EEU / / Journal of foreign legislation and comparative law. 2019. # 1. P. 70. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 293

July 2, 1992 No. 1488-XII “On the protection and use of objects of historical and cultural heritage”, where the status of a monument of history and culture is assigned to objects of historical and cultural heritage of immovable property. According to experts, according to the legislation of the Republic of Kazakhstan, the terms “cultural heritage” and “cultural property” are one- order, both institutions are based on “cultural values”, which, depending on the level of their significance for the history and culture of the country, are divided into these two groups432. At the same time, many scientists emphasize that when comparing the Federal law of 25.06.2002 No. 73-FZ “On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation” the Law of the Republic of Kazakhstan draws attention to the clarity of the main legal definitions of the latter, which eliminates ambiguity in their interpretation in law enforcement433. It seems reasonable to use this approach in the Russian legislation, taking as a basis from the Kazakh legislation two key terms: “object of cultural heritage” and “identified object of cultural heritage”. The importance of precise terminological definition at the legislative level of concepts in the field of culture is determined by the fact that according to the justified remark of the Kazakh scientist Zh. Moldabekova “the scientific concept of cultural heritage is characterized by subject blurriness, methodological inconsistency, status uncertainty, variable and versioned character”434. The peculiarity of Russian legislative regulation in the sphere of culture in comparison with Kazakhstan is that it is carried out at two levels. This is due to the Federal nature of the Russian state, while the Republic of Kazakhstan is unitary. According to paragraph «d» of article 72 of the Constitution of Russian Federation to subjects of joint management of the Federal center and subjects entering into Federation, including questions of protection of monuments of history and culture concern. Currently, certain legislative

432 Idrysheva S.K., Sokolskaya L.V. Russian and Kazakh legislation on objects of cultural heritage: comparative legal research / Protection of cultural heritage: national and international experience. Collection of scientific articles on the materials of the international scientific and practical confer- ence. Executive editor M.S. Trofimova. 2018. Pp. 58 433 Panfilov A.N. Cultural values and objects of cultural heritage: the problem of unification of con- cepts / / Law and politics. 2011. No. 3. Pp. 444. 434 Moldabekov J.J. Cultural heritage as a problem: the characteristics and research position // the Bulletin of KazNU. 2011. No. 2. Pp. 111. 294 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY acts on culture have been adopted in most subjects of Russian Federation, for example: The Law of the Republic of Bashkortostan of 13.07.1993 № VS-18/19 “On culture”; The law of Saratov region of 28.07.2010 № 118-ZSO “On culture”; the Law of Moscow of 14.07.2000 № 26 “On the protection and use of immovable monuments of history and culture”; the law of Kemerovo region of 29.12.2015 № 140-OZ “On objects of cultural heritage (monuments of history and culture)”. In completing it seems necessary to emphasize the range of cultural rights, whether in broad or narrow sense is not final as the development of the society brings to the emergence of new ones. For example, for the last years more often among cultural rights the right for exercising the results of scientific, cultural, technical and cultural progress is named. This right logically streams out of the rapid technological development of the most of the countries at the beginning of XXI. At present the similar right is not fixed in the Constitutions of Russia and Kazakhstan, but in the Constitutions of some countries it is consolidated. Thus, in the Constitution of Czech Republic of December 16, 1992 it is indicated: «The rights for the results of the creative mental activity are safeguarded by law» (p. 1 art. 34). In Constitution of Moldova Republic of July29 1994 it is said: “…the state contributes to the preservation, development and dissemination of the achievements of the national and world culture and science” (p. 3 art. 33)435. Narrower in relation to the above, but no less important is the right to access the Internet. Currently, this right is recognized as an inalienable human right in only a few countries in the world (France, Estonia, Costa Rica, etc.), and only one state has enshrined it at the constitutional level-Mexico. Meanwhile, considering that the Internet is now the main means of obtaining information, and a significant number of cultural objects are accessible to the vast majority of people through it, it is possible to attribute the right to access the Internet also to cultural rights in their broadest sense. It seems that in the future these rights should find their consolidation in Russian Federation, as well as in Kazakhstan, if not at the constitutional, then at least at the legislative level.

435 The Constitution of the Europe countries: In 3 volumes / Under edition L.O. L.A. Okun М., 2001. V. 3. Pp. 528, 554. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 295

Bibliographic list: 1. Bezrukov A.V. Constitutional law of Russia: a textbook. 3rd ed., Rev. and extra M: Yustitsinform, 2015. 2. Idrysheva S.K., Sokolskaya L.V. Russian and Kazakh legislation on objects of cultural heritage: comparative legal research / Protection of cultural heritage: national and international experience. Collection of scientific articles on the materials of the international scientific and practical conference. Executive editor Trofimova, 2018. 3. A.N. the Right to education in the constitutions and legislation of foreign countries / / Reforms and law. 2016. No. 4. 4. Constitutions of the States of Europe: in 3 vols. / under the General ed. Moscow, 2001. Vol. 3 5. Constitutional law: University course: textbook: in 2 vols. / ed. A.I. Kazannik, A.N. Kostyukov. Moscow: Prospect, 2015. Vol.2 6. Constitution of Kazakhstan. Scientific and practical commentary. Astana, 2018. 7. Lipchanskaya M.A. Constitutional bases of the state policy of the Russian Federation in relation to cultural heritage. Izvestiya Saratov University. New series. Series “ Economy. Management. Right». 2016. Vol. 16. Vol. 3. 8. Mikheeva I.V., Loginova A.S. Variability of normative consolidation of the concept of “cultural values” in the legislation of the EAEU / / Journal of foreign legislation and comparative law. 2019. No. 1. 9. Moldabekov J.J. Cultural heritage as a problem: the characteristics and research position // the Bulletin of KazNU. 2011. No. 2. 10. Morozova A.N. Constitutional and legal guarantees of citizens’ participation in the cultural life of Russian society: cand. of the faculty of law sciences. Moscow, 2005. 11. Panfilov A.N. Cultural values and objects of cultural heritage: the problem of unification of concepts / / Law and politics. 2011. No. 3. 12. Sobyanin S. S. Trends in the development of legislation of the subjects of the Russian Federation in the socio-economic sphere. Journal of Russian law. 2007. No. 1. 296 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

13. Frequently asked questions on economic, social and cultural rights. Narrative. No. 33. Office of The United Nations High Commissioner for human rights. Printed at United Nations, Geneva. GE. 08-44593-March 2009-1, 570. 14. Shahray S.M. Constitutional law of the Russian Federation: textbook for academic undergraduate and graduate studies. 4th ed., ISM. and additional M.: Statute, 2017. 15. Shcherbovich A.A. Charter of human rights and principles for the Internet from the point of view of realization of social, economic and cultural rights. Moscow: TEIs, 2016. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 297

Oleg GRIBUNOV Alisa SHALAMOVA Deputy Head of the East Siberian Head of the Department of state Institute of the Ministry of Internal and legal disciplines East Siberian Affairs of Russian Federation, Institute of the Ministry of Internal Doctor of law, professor Affairs of Russian Federation, Candidate of law, Associate professor

IMPROVEMENT OF LEGAL REGULATION OF BUSINESS ACTIVITY AND SOCIAL SPHERE AS A WAY TO APPROVAL SOCIAL STATEHOOD IN THE REPUBLIC OF KAZAKHSTAN

rticle 1 of the Constitution of the Republic of Kazakhstan stipulates: “The Republic of Kazakhstan: «The Republic of Kazakhstan proclaims itself as a democratic, secular, legal and social state whose highest values are a person, his life, rights, and freedoms». [1]. AThe self-declaration by the state of such a characteristic as the “social state” requires a lot. Public authorities in such a state, in cooperation with civil society, must successfully implement the appropriate legal policy through 298 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY strategic planning documents, legislation and law enforcement practice. It seems that the modern Kazakh leadership headed by the country’s President Kasym-Jomart Tokayev, who received the main vectors of economic and social policy from the First President of Kazakhstan Nursultan Nazarbayev, is quite successful in moving towards this goal. The adjustments made by the new government to the constant general course of social statehood correspond to the current tasks and the current situation, and are developed as a result of the socio-economic verification of the provisions of existing laws and social practices. In recent years, in the legal literature, there has been a justified, in our opinion, trend in the characteristics of statehood as a social one. Previously, to reveal the essence of the social state, mainly such categories as “social protection”, “social services”, “social charity”, “care”, etc. were used. That is, the essence of the social state was considered through the prism of the social function of the state, understood in the narrowest sense, as activities for material support at the expense of social funds and care for representatives of those social groups that are unable to support themselves and provide – the elderly, the disabled, single mothers of young children, orphans, etc. Of course, this area of activity is extremely important in the conditions of social statehood, and we have already considered it in detail from the point of view of ensuring and protecting the legal status of the individual [2]. Now the accents in the characteristics of the social state are being changed to some extent. The social is the statehood, under which the public power creates the decent conditions of the existence, possibilities for satisfaction of their material and spiritual possibilities, coming of the principles of equality and social fairness for all the citizens of the state. This means not only and not so much social protection in the narrow sense, but the creation of appropriate conditions for self – development of the individual, for the realization of its potential and through this realization-for self-sufficiency of material and spiritual needs of their own and family members. G.E. Kanafina and E.S. Orozoliyev, having studied and summarized the different approaches to the understanding of the essence of the social state, REPRESENTATIVES OF THE ACADEMIC COMMUNITY 299 note that «the social state is the most highly - developed type of the state, which provides to all of its citizens the high level of the social security through the activity of the state, regulating the social, economic and other spheres of the vital activity of the society and confirmation of social solidarity and fairness … Equal opportunities for all exclude any privileges and do not allow such a regulation of the economy, which causes harm to the development of market relations» [3,p.69]. We can agree with M.A. Mushinsky, who notes the trend towards convergence of the doctrines of the “legal state” and “social state”: “recently, there has been a gradual diffusion of two constitutional doctrines – the legal state and the social state. The rule-of-law state is increasingly perceived not as a form of political power that ensures everyone’s participation in political life, but as a political mechanism that ensures everyone a decent existence. It is no accident that in the universal Declaration of human rights such an unconditional humanitarian value as the dignity of the individual is linked primarily not with any political aspects, but with full-fledged conditions for the application of their work, social security, and a proper standard of living. And paternalism (within reasonable limits, of course) in this case is not a vice, but a normal social practice that ensures the implementation of the social contract with the state” [4, p. 68]. Zh.D. Dauletkhanova accurately notes that “the most optimal model of social policy is a synthesis of two trends, involving, on the one hand, the emphasis on the social state and social economy, and on the other hand, the use of market mechanisms for the development and implementation of social policy. At the same time, the return of the state to the social sphere should not be considered as a consolidation of paternalistic tendencies, when the state fully assumes all obligations for the social welfare of the population. In this case, the state is one of the leading subjects of socio-economic relations”, taking on the function of stimulating economic activity of the population [5, p. 111]. Among the legal ways of self-provision we can identify two basic, characteristic for the social statehood: business activity, establishing of business by citizen as an individual entrepreneur without forming legal entity, 300 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY or joining the number of co-owners of a legal entity; 2) employment. And only in relation to those citizens who, due to some subjective or objective reasons, are not able to work, to self-sufficiency, or temporarily deprived of such an opportunity, the state “includes” tools of social support and protection in the narrow sense-benefits, pensions, other social benefits, free or preferential provision of medicines and medical equipment, etc. At the same time, social policy in this case also includes efforts to return the “temporarily unemployed” from the economically active environment of the citizen – through professional training and retraining, including training feasible for elderly or people with disabilities, and market demand occupations, through the creation of jobs in the field of home-based work, approval of appropriate limits for employers and encourage those who provides employment for people with disabilities by providing mobility of the workforce, including in the context of movements across the state by creating comfortable (“accessibility”) of the urban environment, allowing the disabled easy access to the workplace, and in other different ways. Earlier we have formulated, that social sphere as an object of the legal policy of the state presents the combination of the public relations, the general contents of which (with all the species diversity) institutes the following general directions of the social policy realization: 1) the social services of the citizens; rendering social services; 2) social support and protection of these categories of the citizens, for whom the self-provision and self-protection are impossible for the objective reasons. 3) the state support of the activity types, not bringing income, vitally necessary for normal existence and development of the individual, decent life of citizens (health care, education, culture, physical culture and sports). [6, с.22]. According to the law of the Republic of Kazakhstan “On special social services”, “special social services – a set of services that provide a person (family) in a difficult life situation, the conditions for overcoming social problems and aimed at creating equal opportunities for them to participate in the life of society” [7]. In addition to this act, social legislation also includes the Law “On state social benefits for disability and survivor’s pension in the Republic of Kazakhstan” [8], the Law “On state social assistance” [9], the law REPRESENTATIVES OF THE ACADEMIC COMMUNITY 301

“On minimum social standards and guarantees” [10] and a number of other legislative acts. Thus, the Republic has created a reliable legal foundation for the implementation of the concept of the social state in its “passive” part-in the sphere of social support and protection. There is a necessary legislative base for the development of social statehood in the “active” part – in the field of labor and entrepreneurship. Moreover, we will focus on entrepreneurial activity as a sphere (and means) of maximum social and economic activity of the population, corresponding to the values of the market economy based on private property and civil society, legal and social state. The part 4 of the article 26 of the Constitution proclaims: “Everyone shall have the right to freedom of entrepreneurial activity, and free use of property for any legal entrepreneurial activity. Monopolistic activity shall be regulated and limited by law. Unfair competition shall be prohibited”. We should note, that the basic law has a provision, establishing the constitutional basis of the social responsibility of the business. The constitutions not of all states have the analogic norm. It is not included in the constitution of Russian Federation as well. But it should have been done as the newest history of the Russian entrepreneurship demonstrates. The norm of it sounds as follow: «Property shall impose obligations, and its use must simultaneously benefit the society» (p. 2 article 6 of the Constitution). Over the past few years, the government of the Republic of Kazakhstan has taken consistent steps aimed at developing entrepreneurial activity of the population, creating comfortable and safe conditions for doing business, especially in its small and medium-sized forms. After all, small and medium- sized businesses in modern countries are recognized as the driver of the economy. The reforms of the last 5 years were based on the Program of the First President N.A. Nazarbayev of May 20, 2015 “National Plan-100 concrete steps to implement five institutional reforms” [11]. In particular, this program provided for the creation of a non-profit joint-stock company (NAO) “State Corporation “Government for citizens”, which was to integrate all public service centers into a single system in order to provide citizens with all public services in one place. 302 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Further, in 2015 was adopted the Law of RK [12], according to which amendments and additions to some legislative acts on implementation of activities in the sphere of rendering state services to entrepreneurs – individuals and legal entities – according to the principle of “one window”: on registration of pledges of movable property, technical inspection of buildings and structures, the state land cadastre, etc. At the beginning of 2016 the named state corporation with one hundred percent participation of the state in its authorized capital was created by reorganizing a number of Republican state enterprises and centers that previously provided relevant services to entrepreneurs on behalf of the state [13]. This organizational and legal decision made it much easier for entrepreneurs to obtain public services related to opening and running a business. 70 branches and 1 representative office of the state Corporation have been established in the regions of the Republic [14]. One of the latest innovations related to the work of State corporation is that from July 1 2019, provides for the transfer of functions of state registration of commercial legal entities from the Ministry of justice of Kazakhstan State Corporation “Government for citizens”. At the same time, small businesses can register even online. This novel was introduced in April 2019 by the law of the Republic of Kazakhstan “On amendments and additions to certain legislative acts of the Republic of Kazakhstan on the development of the business environment and regulation of trade activities” [15]. This very significant legislative act introduced significant changes in civil and civil procedure legislation, in the legal mechanisms for stabilizing prices for socially important food products, in the legal regulation of trade activities, the work of special economic zones, in tax legislation, and many others. The leitmotif of all these amendments is the improvement of legal regulation of entrepreneurial activity, the intensification of civic activity in this area, diversifying the economy and improving the welfare of citizens, families, entrepreneurs, by ensuring favourable conditions for entrepreneurship, as a kind of substantive and creative human activity. In other words, this is a continuation of the course of building a social state. Except the named measures, in July 2019 the President of Kazakhstan REPRESENTATIVES OF THE ACADEMIC COMMUNITY 303 introduced moratorium on the establishment of the subjects of the quasi- state sector: this measure, aimed at reduction of the state participation in the entrepreneurship and creating conditions for further development of the private sector. That time as well, in July 2019 the tax amnesty was declared [17], in accordance with which the entrepreneurs – citizens of Kazakhstan, who paid the main sum of the debt, have the debt and fines cancellation. According to the preliminary calculations more than 90 000 subjects of small and medium businesses. To cancel the fines and penalties debtors just need to pay to the budget the amount of the principal tax debt. At the same time, the amnesty does not apply to excisable groups of companies, entrepreneurs doing business in the oil sector and, of course, false entrepreneurs. Finally, in December 2019, in order to improve the conditions for the development of small business, including micro-entrepreneurship, the President of Kazakhstan introduced a moratorium on some of the state’s control and supervision activities in relation to the relevant entities: the Central state and local Executive bodies were instructed to stop from January 1, 2020 to January 1, 2023. Inspections and preventive control and supervision with visits to small businesses, including microenterprises, with the exception of inspections aimed at preventing or eliminating violations that potentially pose a massive threat to the life and health of the population, the environment, the rule of law and public order; direct or immediate threat to the constitutional order and national security, as well as a number of other “urgent” cases, when inspections simply cannot be abandoned without risks to the most important social and legal values [18]. Thus, it would appear, the Russian legislators and the bodies responsible for enterprise development, the realization by citizens of their constitutional rights to freely use their abilities and property for entrepreneurial and not prohibited by law economic activities under article 34 of the Constitution, the experience of Kazakhstan should be carefully examined and apply. And not only in the content, but also in the procedural and security part, in the context of ensuring the effectiveness of the adopted laws at the stage of their implementation. For example, attention is drawn to the thorough 304 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY organization of Bylaw legal support for the implementation of the provisions of laws, issued by the legal act of the head of the Government of the Republic of Kazakhstan [19].

Annotation. The article deals with new assessments and characteristics of the social state in legal science. The article shows changes in the legislation of the Republic of Kazakhstan aimed not only at the implementation of social policy in a narrow sense, that is, social support for the needy from social funds, social protection, but also at the development of entrepreneurship as a kind of useful creative activity of the economically active population. Entrepreneurs carry out self-sufficiency of a decent standard of living for themselves and their family members, and at the same time perform a common task of economic development. That is, the level of business development is directly related to the characteristic of the state as a social one. In recent years, the Republic of Kazakhstan has taken active measures to develop legislation aimed at creating favorable conditions for entrepreneurs, especially those related to small and medium-sized businesses, for effective, safe and comfortable business. This Kazakhstan experience is subject to careful reflection. Keywords: social state, legal regulation of the social sphere, constitutional right of citizens to entrepreneurship, legislative basis of business activity.

References: 1. The Constitution of the Republic of Kazakhstan (adopted at the Republican referendum on August 30, 1995) (with changes and additions as of 23.03.2019) Official website of the President of the Republic of Kazakhstan [electronic resource] https://www.akorda.kz/ru/official_ documents/constitution. 2. Shalamova A.N. Mechanism for ensuring and protecting the legal status of persons whose independent implementation and self-defense are difficult due to special circumstances / A.N. Shalamova / / Siberian legal Bulletin. - 2017. - No. 1 (76). - Pp. 42-49. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 305

3. Kanafina G E. Features of formation of the social state in Kyrgyzstan and Kazakhstan / G. E. Kanafina, E. S. Orozaliev / / Izvestiya vuzov Kyrgyzstan. - 2015. - No. 11. - Pp. 69-71. 4. Mushinsky M.A. on the correlation of doctrines of the legal and social state and their implementation in the Russian political and legal practice in the context of modern social and political changes / M.A. Mushinsky / / Theory of state and law. 2019. - No. 1 (13). - Pp. 60-70. 5. Daulethanova J.D. Study of the mechanism of state regulation of social sphere of the Republic of Kazakhstan / Zh. Daulethanova // Economic analysis: theory and practice. - 2016. - No. 3. - Pp. 111-120. 6. Shalamova A.N. Legal policy in the social sphere / A.N. Shalamova / / Bulletin of the East Siberian Institute of the Ministry of internal Affairs of Russia. - 2019. - No. 3 (90). - Pp. 20-31. 7. On special social services: the law of the Republic of Kazakhstan of December 29, 2008 No. 114-IV ZRK (ed. from 01.04.2019) / / Information and legal system of normative legal acts of the Republic of Kazakhstan “Adilet” [electronic resource]. Mode of access: http://adilet.zan.kz. 8. On state social benefits for disability and breadwinner’s pension in the Republic of Kazakhstan: law of the Republic of Kazakhstan dated June 16, 1997 № 126 (ed. by 26.12.2018) // the legal Information system of normative legal acts of the Republic of Kazakhstan “Adilet” [electronic resource]. Mode of access: http://adilet.zan.kz. 9. On the state address social assistance: the Law of the Republic of Kazakhstan of July 17, 2001 No. 246 (ed. from 03.04.2019) / / Information and legal system of normative legal acts of the Republic of Kazakhstan “Adilet” [electronic resource]. Mode of access: http://adilet.zan.kz. 10. On minimum social standards and their guarantees: law of the Republic of Kazakhstan of May 19, 2015 No. 314-V / / Information and legal system of normative legal acts of the Republic of Kazakhstan “Adilet” [electronic resource]. Mode of access: http://adilet.zan.kz. 11. Plan of the nation – 100 concrete steps to implement five institutional reforms of the Head of state Nursultan Nazarbayev May 2015) // “Lawyer” [electronic resource]. Mode of access: https://online.zakon.kz/ 306 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

12. On amendments and additions to some legislative acts and additions to some legislative acts concerning rendering of public services: the law of the Republic of Kazakhstan of November 17, 2005 No. 408-V // “Lawyer” [electronic resource]. Mode of access: https://online.zakon.kz/. 13. On establishment of non-commercial joint-stock company “State Corporation” Government for citizens”: resolution of the Government of the Republic of Kazakhstan of January 29, 2016 no. 39 // // “Lawyer” [electronic resource]. Mode of access: https://online.zakon.kz/. 14. Non-profit joint-stock company “State Corporation” Government for citizens”. Official website [electronic resource]. Mode of access: https:// gov4c.kz/ru/. 15. On amendments and additions to some legislative acts of the Republic of Kazakhstan concerning development of the business environment and regulation of trade activity: the law of the Republic of Kazakhstan of April 2, 2019 No. 241-VI / / “Lawyer” [electronic resource]. Mode of access: https:// online.zakon.kz/. 16. On introduction of the moratorium on creation of subjects of quasi- public sector: the decree of the President of the Republic of Kazakhstan of July 3, 2019 No. 51 / / “Lawyer” [electronic resource]. Mode of access: https://online.zakon.kz/. 17. On amendments and additions to some legislative acts of the Republic of Kazakhstan concerning regulation and development of the financial market, microfinance activity and the taxation: the law of the Republic of Kazakhstan of July 3, 2019 No. 262-VI //”Lawyer” [electronic resource]. Mode of access: https://online.zakon.kz/. 18. On introduction of the moratorium on carrying out checks and preventive control and supervision with visiting in the Republic of Kazakhstan: the decree of the President of the Republic of Kazakhstan of December 26, 2019 No. 229 / / “Lawyer” [electronic resource]. Mode of access: https:// online.zakon.kz/. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 307

19. See, for example: on measures to implement the Law of the Republic of Kazakhstan of April 2, 2019 “On amendments and additions to certain legislative acts of the Republic of Kazakhstan on the development of the business environment and regulation of trade activities”: order of the Prime Minister of the Republic of Kazakhstan dated may 30, 2019 No. 98-R / / “Lawyer” [electronic resource]. Mode of access: https://online.zakon.kz/. 308 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Ulyana FILATOVA Professor of the Department of civil law of the Law Institute of Irkutsk State University, Doctor of law THE STATE’S SOCIAL MISSION: THE TRENDS OF DEVELOPMENT AND IMPLEMENTATIONAL FEATURES IN RUSSIA AND THE REPUBLIC OF KAZAKHSTAN 436

ccording to section 1 article 1 of the Constitution of the Republic of Kazakhstan, the Republic of Kazakhstan proclaims itself as a democratic, secular, legal and social state whose highest values are a person, his life, rights, and freedoms. This constitutional Aprinciple is reflected in numerous constitutional laws. In addition, particularly interesting to reveal chapter 6 of the Entrepreneur Code of the Republic of Kazakhstan. This code considers the legal regulation of social responsibility of entrepreneurship. The issues of social responsibility of business, social

436 The research was carried out with the financial support of the RFBR in the framework of scientific project no. 20-011-00222 REPRESENTATIVES OF THE ACADEMIC COMMUNITY 309 entrepreneurship, the social mission of the state are inextricably linked. During the last decades, the active involvement of citizens themselves in solving social problems of society is generally recognized as a global trend. Consequently, each country enables to choose their own way to develop and different legal mechanisms to regulate this process.

The European experience. The European Commission applies the term “social enterprise” to refer to the following types of business in 4 areas: 1. Integration of work - to teach and interact with physically disabled and unemployed people; 2. Personal social services - the issues of health, well-being and health care, professional training, education, child care services, the services for senior citizens and aid for deprived people; 3. The local development of deprived areas - social enterprises in remote rural areas, schemes for the rehabilitation of neighborhoods in urban areas, assistance and cooperation to develop relations with third countries; 4. Other - recycling of waste, environmental protection, sport, art, culture, and historic preservation, science, research and innovations, consumer protection, and amateur sport. The social enterprises combine social goals with an entrepreneurial spirit. These organizations focus on achieving spacious social, environmental, or community goals. The European Commission aims to create favorable financial, administrative and legal environments for these enterprises in order to prepare equal opportunities to these businesses. It is can help them to work equally with other types of businesses in the same sector [1]. In the many European Union countries have specific legal provisions on social entrepreneurship, and they provide efforts to achieve a common European legal status of social entrepreneurship. However, the existence of a law on social entrepreneurship in one or another country doesn’t ensure the high level of development, by contrast, the social entrepreneurship is raised by private individuals, civil society, rather than the State’s effort. For instance, according to the Thomson Reuters Fond research, that had 310 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY analyzed the quality of the basic conditions for social entrepreneurship in 2016, Switzerland attained the 11th place in the Worldwide classification of the social entrepreneurship development quality without legislative regulations, and this is the principle position of the Bundesrat of Switzerland, according to which “the definition and regulation by the Government will have a negative impact on this young development of civil society.” [2] The social entrepreneurship is not a legal phenomenon, but rather an economic phenomenon. Firstly, this legal regulation is linked with the special importance of its implementation for society and the desire of States to stimulate citizens and legal entities to implement social business.

The Russian experience According to the article 7 of Constitution of the Russian Federation, the Russian Federation is a social State whose policy is aimed at creating conditions for a worthy life and a free development of man, and in order to inflaming idea of social government the following section 2 of this article include the subjects requiring special social support from the State: state support ensured to the family, maternity, paternity, and childhood, to disabled persons and the elderly. For this purpose, the state also identified general directions of state activity: protection of labor and health, a guaranteed minimum wage and established salaries, develop the system of social services, state pensions, allowances and establish to social security guarantees. As usual, the state’s social mission is inextricably linked with the activities of the State itself and its social services system. Therefore, the Ministry of Finance of the Russian Federation has announced that 30 % of the national budget tend to spend on social policy [3]. However, a strong trend in recent years has been the active involvement in the social sphere of elements of civil society and the full support of the State for social entrepreneurship, which suggests that in the future many functions of the State in the social sphere will be transferred to business sectors. Deputy Chairman of the Committee of the State Duma of the Russian Federation on Economic Policy, Industry, Innovative Development, and Entrepreneurship Dmitry Sazonov confirmed obligatoriness on steadily increasing the share of REPRESENTATIVES OF THE ACADEMIC COMMUNITY 311 non-state organizations in the social services market, attaining 50% by 2024, on the November of the 2018 year [4]. Among the first documents indicating the progressive development of the state in the mentioned direction was the strategy for the development of small and medium-sized businesses in the Russian Federation for the period to 2030, [5]. This program noticed the great potential for the development of small and medium-sized enterprises in the social sphere. Moreover, it proposed the number of measures to increase the share of small and medium- sized businesses in the sector of social services. Particularly, the operation to remove restrictions on the entry of new organizations into the market of social services, the creation and development of specialized organizations of support infrastructure in the constituent entities of the Russian Federation, the provision of subsidies for the implementation of projects in the field of social entrepreneurship, measures to popularize such activities. The legal regulation of social entrepreneurship was started with the official adoption of the Federal law “On public-private partnerships, municipal-private partnerships in the Russian Federation and amendments to certain legislative acts of the Russian Federation” [6], and also “On Charitable Activities and Volunteering” the Federal law that was renewed on May of 2019 [7]. But all of these measures were only preparatory. At this moment we can say about more explicit evidence of the State policy outlined above, to clarify, the Federal Law 245 which was enacted in July 2019. This law added in the legal field the terms social entrepreneurship and social enterprise. The definition of social entrepreneurship means activities aimed at achieving socially useful goals, contributing to solving social problems of citizens and society. The social enterprise was indicated as a subject of small and medium-sized businesses carrying out activities in the field of social entrepreneurship. One of the key differences between social enterprises and non-profit organizations is the purpose for which they operate. Therefore, the social enterprises are an entrepreneurial activity, which means that it is primarily aimed at systematic profit-making, and the qualitative feature that distinguishes it from other types of entrepreneurship is that it is aimed at achieving socially 312 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY useful goals. However, the first key factor forces entrepreneurs to reach at least the level of self-sufficiency and sustainability in terms of their own income. Consequently, in foreign countries the subject of law is not considered as a social enterprise if it exists only through grants, subsidies, donations, contributions of the founder. There is no social enterprise without a sign of self-sufficiency, because first of all it is business, and then with a social sign. The social enterprises include the following types of small and medium- sized businesses which provides: 1) labor market integration (administer employment of disabled persons, single or large parents, pensioners, refugees etc. And this list is open (the proportion of these employees among all working people consists of approximately 50%, with labor costs of at least 25 percent); 2) the realization of consumer goods produced by persons from the list above, with at least 50 percent additional income from such activities; 3) the production of goods for the above-mentioned peoples in order to compensate for the limitations of their life; 4) activities aimed to achieve socially useful goals (educational and social services, organization of recreation of children ‘s health, training employees and volunteers of non-commercial organizations, cultural and educational activities, preschool and school education of children). This program also supports infrastructure availability, financial property, consulting and methodological aim, and so on. The status of a social enterprise is given for the corporate body by entering the relevant information in the register. The official maintenance of this register is scheduled for April 2020. By analyzing the Russian legislative system, it should be concluded that the social entrepreneurship entities include: firstly, corporate body and individual entrepreneurs belonging to small and medium-sized enterprises; secondly, socially-oriented non-profit organizations, that can make businesses with direct instruction, the legislator may engage in entrepreneurial activities in order to achieve the purposes of creation (art. 24, para. 2). A number of support measures, tax incentives, advantages in the contract procurement system have been established in Russian legislation for non- REPRESENTATIVES OF THE ACADEMIC COMMUNITY 313 profit organizations437. Socially oriented non-profit organizations are separately identified among Russian non-profit organizations. The activity of this subject is regulated by “On Non-commercial Organizations” Federal Law [8]. According to section 2.1 article 2 of this law, “Socially oriented non-profit organizations are non- profit organizations established in the forms prescribed by law (with the exception of State corporations, State companies, and voluntary associations that are political parties) and carrying out activities aimed at resolving social problems and developing civil society in the Russian Federation”. In 2016, the President of the Russian Federation defined the priority areas of activity in the sphere of providing socially useful services, [9] which in turn led to the emergence of a new subject of social entrepreneurship with a special status, these are non-profit organizations performing socially useful services. These organizations have priority in receiving federal and regional support measures. In addition, these organizations can rely on the following forms of support: 1) financial, estate, information, consulting support as well as support in the field of training, additional professional education of employees and volunteers (volunteers) of socially oriented non-profit organizations; 2) providing fee and tax benefits; 3) implementation of procurement of goods, works and services to meet state and municipal needs from socially oriented non-profit organizations in a special way; 4) providing material supports. Hence, the status of non-profit organizations engaged in social entrepreneurship provides a significant number of opportunities to receive financial and non-financial support, while small and medium-sized businesses

437 According to article 30 of the Federal law “on the contract system in the sphere of procurement of goods, works, services for state and municipal needs”[12] customers are required to make pur- chases from small businesses and socially oriented non-profit organizations in the amount of at least fifteen percent of the total annual volume of purchases. At the end of the year, the customer must make a report on the volume of purchases from small businesses and socially oriented non-profit organizations, and by April 1 of the year following the reporting year, place such a report in the uni- fied information system. In this report, the customer includes information about contracts concluded with small businesses, socially oriented non-profit organizations, as well as information about the failed identification of suppliers (contractors, performers) with the participation of small businesses, socially oriented non-profit organizations. 314 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY are only declaratively recognized as social entrepreneurship subjects. According to statistic data, 200 thousand of non-profit organizations were registered in the Russian Federation. During the two years of existence of the mechanism of its acquisition, 193 non-profit organizations were granted the status of the performer of socially useful services, [10] which does not look convincing on the national scale. At the same time, it should be noted that the number of small and medium-sized enterprises of commercial legal entities is 3.5 million [11] However, the interest of entrepreneurs in social entrepreneurship is low. For example, in Nizhnevartovsk, only 27% of entrepreneurs are interested in this type of activity in the following areas: servicing people with disabilities in different spheres, education, social tourism, medicine. Entrepreneurs, who already have a business in the field of social entrepreneurship, mainly do not plan to expand their current activities in this area. Only 16% are ready to expand their business through new areas of activity but only in education. [12]. The adoption of legal norms regulating social entrepreneurship creates only legal prerequisites for its development. However, many legal questions remain unanswered. Namely, the questions of tracing the quality of provided services, peculiarities of bringing to civil-legal responsibility, interbranch belonging of social service as an object of legal relations.

The social entrepreneurship in the Republic of Kazakhstan. This country does not single out a social entrepreneur as a special subject of entrepreneurial relations but imposes social responsibility on business as a whole. On the one hand, this position is approachable in modern society, according to which reducing entrepreneurship to commerce is a mistake. As A. Moskovskaya rightly points out: “Today the real existing organizations of the commercial and non-commercial sector are subject to mutual convergence and borrow from each other the principles of organization and ways of resource exchange. Furthermore, entrepreneurship has never been reduced to profit- making. Entrepreneurship is aimed at the transformation of markets and the established status quo by nature, at qualitative change, at innovations; REPRESENTATIVES OF THE ACADEMIC COMMUNITY 315 economists have been writing about it since the 18th century”[13]. On the other hand, the dominant form of social entrepreneurship in Kazakhstan is non-profit organizations (NPO), which are usually financed by the state or foreign grants [14]. Social responsibility of entrepreneurship is a voluntary contribution of business subjects to the development of social, environmental and other spheres. The social responsibility consists of systemic coherence between the state and business. Social responsibility of businesses is based on a number of fundamental principles and guarantees from the state: social responsibility is exclusively voluntary, and non-interference in the affairs of business subjects is guaranteed. The Entrepreneur Code of the Republic of Kazakhstan includes 4 areas in which the social responsibility of entrepreneurship can manifest itself - employment and labor relations, environmental protection and other areas. There is a charity and other forms of social responsibility were also mentioned. The legislator endeavors to create conditions to stimulate charity by the establishment and giving of awards, honorary titles and preferential tax policy. Other forms of implementation of social responsibility include creation of conditions for guaranteed exercise of the right to work of the citizens of the Republic of Kazakhstan by business subjects, implementation of a number of measures in the environmental area, including financing of programs and activities in the field of environmental protection and improvement of streets, parks and other public places, approval of internal policy in the field of environmental protection, solving other issues for improving the environment. Thus, the legal regulation of social entrepreneurship in the Republic of Kazakhstan is aimed at emphasizing the social mission of the business as a whole, nurturing a conscious attitude of entrepreneurs to their employees, the development of philanthropy and patronage. The environmental sphere and promotion of entrepreneurship in environmental projects with regard, in this case, Kazakhstan is closer to the European Union than the Russian Federation, which does not classify environmental enterprises as social ones. 316 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

At the same time, it should be noted that non-profit organizations and social enterprises need constant, not one-time, support in the form of grants and subsidies.

Annotation The social entrepreneurship is one of the factors that provide the consistent, progressive and sustainable development of modern society in the social, environmental, educational and innovative fields, in particular through public-private partnerships. The features of this legislative phenomenon are the initiation of its implementation with civil society itself, and in this case, the government creates only the conditions for its development and guarantees its support. The relevance of this topic lies in the fact that social entrepreneurship is being considered as the new direction of legal and economic regulation. Therefore, this legal regulation varied among different states, for example: denying the need for these regulations and also attempt to enshrine social and entrepreneurial relations in legal form in order to not only guarantee social enterprises support but also to monitor the quality of the services they provide, which we observe in modern Russia. This legal analysis affords to the creation of developed socio-economic relations in the Republic of Kazakhstan and the Russian Federation. The way of this creation achieved by building effective relations between subjects of social entrepreneurship and beneficiaries on the one hand, as well as the correlation between social entrepreneurs and the state on the other hand. Keywords: the Constitution of the Republic of Kazakhstan, the Constitution of the Russian Federation, social entrepreneurship, entrepreneurial activity, socially useful services, non-profit organizations, socially-oriented non- profit organizations, small and medium-sized enterprises.

BIBLIOGRAPHY: 1. Social enterprises // URL: http://ec.europa.eu/growth/sectors/ social- economy/enterprises_en 2. Die Bundesversammlung – Das Schweizer Parlament // URL: https:// www.parlament.ch/de/ratsbetrieb/suche-curia-vista/geschaeft?Af REPRESENTATIVES OF THE ACADEMIC COMMUNITY 317

3. The budget for citizens. To the Federal Law of the Russian Federation on the Federal Budget for 2018 and the Planning Period 2019 and 2020. Ministry of Finance of the Russian Federation // URL: https://www.minfin.ru/ common/upload/library/2017/12/main/BDG_2018_FINAL.pdf. 4. News about the State Duma of the Federal Assembly 8.11.2018 // URL: http://duma.gov.ru/news/28728/. 5. The development strategy of small and medium-sized businesses in the Russian Federation for the period up to 2030, approved by Government Order No. 1083-r of 02 June 2016. // SPS “Consultant Plus”. 6. The Federal law №224-FZ of 13 July 2015 (as amended by 29 December 2015) on Public-Private Partnership, Municipal-Private Partnership in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation // Collection of Legislation of the Russian Federation. 2015. № 29. Ч. 1. Art. 4350. 7. On charitable activity and volunteerism (volunteering): Federal Law of February 5, 2018, N 15-FZ // URL: https://rg.ru/2018/02/07/volonteri- 8. Federal law № 7-FZ of January 12, 1996 “On non-profit organizations” (with amendments and additions, effective from 01.01.2019) // Collection of Legislation of the Russian Federation, 1996. No. 3. art. 145. 9. Legal decrees of the President of the Russian Federation of 08.08.2016 № 398 (ed. 01.07.2017) “On approval of priority activities in the field of public utility services” // Collection of Legislation of the Russian Federation, 2016. № 33. Art. 5164. 10. Information from the register of non-profit organizations performing socially useful services of the Russian Ministry of Justice // URL: http://unro. minjust.ru/NKOPerfServ.aspx 11. Statistics of legal entities as of January 17, 2019. // URL: http://www. vestnik-gosreg.ru/info_ul/ 12. Report on the results of monitoring of small and medium business activity on the territory of the city of Nizhnevartovsk within the framework of the Municipal contract on rendering services on monitoring of small and medium business activity on the territory of the city of Nizhnevartovsk №190-2018 dated June 29, 2018, //https://www.n-vartovsk.ru/inf/ predprinimatelstvo/rmdsmsp/300246.html 318 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

13. Moskovskaya A. Why do we need a law on social entrepreneurship? 2019. № 10. [Electronic resource // URL: https://socentr.hse.ru/data/2019/07/25/1481286819/Бюллетень%20 10%20(28%2001%202019).pdf 14. Pritvorova T.P.; Gelashvili N.N.; Zhumanova B.K. Social entrepreneurship in the Republic of Kazakhstan: problems and prospects of development // Creative economy. Volume 13. № 2. 2019. (Electronic resource) [Electronic resource//URL:https://www.researchgate. net/publication /331807089_Socialnoe_predprinimatelstvo_v_Respublike_ Kazahstan_problemy_i_perspektivy_razvitia (the date of the requests 30.12.2019)

REPRESENTATIVES OF THE ACADEMIC COMMUNITY 319

Yelena GRACHEVA First vice-rector, Head of the financial law Department of the O.E. Kutafin Moscow State Law University, Doctor of law, professor THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN ON THE ISSUES OF FINANCIAL LAW AS A FACTOR OF THE MODERN SOCIETY DEVELOPMENT

he fundamental transformations of all the spheres of social life in Russia and Kazakhstan in 80-th of the XXth century, connected with the formation of the market relations, appealed to life the necessity of implementation of new methods of influence upon the socialT processes by public authorities, those instruments, the legal regulations of which are accomplished by the norms of financial law. Science faces new challenges in understanding changes in the subject of legal regulation associated with the emergence of new types of public relations regulated by financial law, which indicates the expansion of the subject of legal regulation 320 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY in the modern digital economy. At the same time, we are witnessing how public relations that were previously regulated by financial law acquire new features, which should be taken into account when developing financial and legal norms in order to achieve the most effective impact on public relations. Realizing the importance of finance in a market economy, the need and potential of financial and legal tools for influencing public processes, research on financial law, aimed at developing financial legislation, has become particularly popular. The adoption of constitutions in our countries has become the most important stimulus for the development and qualitative transformation of financial law. We can say that the “renaissance” of financial law has come. The adoption of the Constitution of the Republic of Kazakhstan has become an incentive and a guide in the formation and development of modern financial legislation and law, its sub-sectors and institutions, in the establishment of appropriate state and local government bodies, in the formation of non-state public funds of money, whose activities are aimed at achieving national interests. The change in the economic system has had an impact on the subject of financial law, which regulates not only state financial activities, but also public finance in general. In the theory of financial law, and accordingly in financial legislation, terminology has been used: public financial activities, public funds of monetary resources, public insurance, public income, expenses, public legal entities, etc., which indicates both changes and expansion of the subject of legal regulation. There were previously unknown to our practice and legislation, for example, non-state pension funds of money, which required the adoption of appropriate legislative acts that, based on the use of methods of public regulation of relations, contributed to the reform of the entire financial system of the society and bringing it into line with the market economy. In the Constitution of the Republic of Kazakhstan the number of issues is devoted to the problems of regulation of the financial activities as the defining sphere of the social development. Thus, in the most important section 2 of the Constitution of the Republic REPRESENTATIVES OF THE ACADEMIC COMMUNITY 321 of Kazakhstan, devote to the rights of the man and citizen the article there is an article 35, in accordance with which the payment of legally established taxes, collections and other obligatory payments is a duty and obligation of each. There is a similar norm in the Constitution of the Russian Federation, in the constitutions of other countries, which witnesses of the significance of this obligation in whole in the system of the citizens’ rights and duties in the modern states. This norm assisted the development of taxes understanding as the main source of income of the budget of the country and as a consequence, the consolidation of this duty in Constitution, witnesses of the increase of the responsibility of each for the fulfillment of the given constitutional obligation. The Constitution of the Republic of Kazakhstan foresees the precise regulation of the powers of the Parliament of the country, Government, specialized subjects, accomplishing the financial activity, which as it was marked, plays the clue role in the formation, distribution and organization of the use of the centralized and decentralized funds of the cash flow and achievement of the general social tasks and goals which stand before society and publicity. In section 3 of the Constitution of the Republic of Kazakhstan among the powers of the President of the country the annual Message to the people of Kazakhstan on the situation in the country and main directions of the internal and foreign policy of the Republic, inevitable component of which is the division of a financial policy of the state in whole, and its components, particularly tax, budget, monetary activity. In section 4 of the Constitution the main powers of the Parliament of the country are formulated and among the high-priority ones in the article 53 are the approval of the reports of the Government and Accounts committee for control on the republican budget and of the budget execution. Whereby, it is mentioned hat non-approval of the named budget means the expression to Parliament of non-confidence vote. It is necessary to say that the importance of these authorities is emphasized by the fact that they are indicated in the list of the powers earlier, than, for example, the powers of questions of war and peace resolution, use of the armed forces. 322 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Article 54 establishes that the Parliament in the separate session of the Chambers approves the republican budget, establishes and cancels the state taxes and collections, discusses the reports on the republican budget execution. These powers are defined by the legislator as a high-priority, that testifies also of the importance of regulation of this very sphere in relation to other spheres of vital activities. Meaningful are the powers of Parliament in the formation of the Accounts committee for control and review of the republican budget execution, the analogue of Accounts chamber in Russian Federation. In the article 61 of the Constitution of the Republic of Kazakhstan the laws, adopted by the Parliament, among which there are tax laws, establishment of the collections and other mandatory payments, republican budget. In the section 5 of the Constitution of the Republic of Kazakhstan the powers of the Government of the country, among which in the first turn the presentation of the republican budget and report on its execution, approval as agreed by the President, of the unified financing system and wages of the workers for all the bodies, payed from the budget funds. One of the most important areas of financial activity in the market conditions was the reform of the entire system of financial control, the purpose of which is to ensure the dynamic development of public and private production, covering production and non-production areas, aimed at increasing economic incentives, rational and careful spending of material, labor, financial resources and natural resources, reducing unproductive costs and losses. In market conditions, the state and public authorities must preserve their social purpose, which must be expressed and formulated in their economic policy aimed at ensuring general social interests. The past years have proved that forgetting and abandoning control by the public authorities leads to serious negative consequences: increased corruption and financial abuse, which creates a threat to national security. An important guarantee of maintaining the social orientation, economic and social policies of the state and municipalities in the course of financial activities is the strengthening of financial control in general. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 323

In market conditions, in the conditions of digitalization of the economy, there is no simplification (we can only talk about technological), but the complication of financial activities and, accordingly, all financial control, which is objectively inherent in all types of economy. The complication is due to the fact that the state’s financial activities include the activities of non- state commercial organizations, enterprises of various forms of ownership, foreign investors, etc. Consequently, financial control is also expanding its scope, including not only new sectors of the economy, new types of public relations, but also new subjects and objects of financial control. This allows us to talk about the formation of public financial control in order to maintain law and order in the financial sector, which, in turn, creates conditions for the implementation of the modern state’s goals, tasks and functions. One of the directions of the improvement and development of the system of financial control in the modern conditions can be considered the enshrined in the Constitution of the Republic of Kazakhstan establishment of new body – Constitutional Council. Among the powers of the Constitutional Council there is, in particular, the consideration of the laws, adopted by Parliament before being signed by the President, and the resolutions of the Parliament and its Chambers for their compliance with the Constitution. If it is spoken about the laws on the republican budget, taxes, such consideration can be characterized as having character of preliminary constitutional control. Significant powers, including those of a control nature, are also assigned to local self-government bodies, both representative and executive (articles 86, 87, 88). The Constitution of the Republic of Kazakhstan provides for the development of interstate relations, the country’s participation in the activities of international integration associations, which necessitates the development of financial legislation regulating taxation, budget formation, customs taxation, development of banking, insurance and other segments of the financial markets, the use of national and foreign currencies by the EAEU member States. The solution of these issues is possible only on the basis of mutual 324 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY agreements of all member countries of the organization, which is facilitated by the discussion of these problems by scientists of our countries. The adoption of the Constitution of the Republic of Kazakhstan, and the development of constitutional norms on its basis, allowed the creation of numerous republican laws, which in turn made it possible to form financial legislation corresponding to the current level of economic and political development of the Republic of Kazakhstan. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 325

Marcos Augusto MALISKA Professor of the Postgraduate Program in Fundamental Rights and Democracy, Master and Doctorate at the UniBrasil – University Center in Curitiba, Federal Prosecutor, Brazil THE RIGHT TO EDUCATION IN THE CONSTITUTION OF KAZAKHSTAN

Introduction ccording to Norberto Bobbio fundamental rights can be classified into three phases. The first one comprises the freedom rights as limits to the state. The freedom of the individual presents itself as a clear limit to the state power. The second one contemplates political Arights, which conceive freedom as political autonomy. The individual has the right to participate in the state political decision. Finally, in the third phase we have the social rights resulting from the new demands and new values​​ such as welfare and material equality. In this last phase, individual freedom is not only against the state, but through the state.438 Citizen’s freedom only

438 BOBBIO, Norberto. A Era dos Direitos. 9ª ed. Rio de Janeiro, 1992, p. 32-33. 326 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY exists when there are the material conditions for its existence. These material conditions concern the set of social rights, such as the right to health, the right to work, the right to social security, and especially the right to education. The Constitution of Kazakhstan regulates education in article 30, providing for (i) the right of access to education; (ii) compulsory school attendance; (iii) free education in public institutions; (iv) private education; and (v) quality of educational service. In accordance with Article 3 of the Education Law, the basic principles of education in the country are the following: equality of citizens in their right to receive education; diversification of educational institutions in terms of ownership, direction of activities, forms of education and training; continuity in the process of education; scientific and secular character, and ecological orientation in state educational institutions; democracy in the management of the education system.439 The levels of education are preschool, secondary, vocational and technical secondary, higher and postgraduate education. Early childhood care and education is for children between the ages of 1 and 6. According to Article 23 of the Education Law, preschool education for 5-6-years-olds shall be compulsory. Elementary education lasts four years and is the first stage of compulsory education. It is possible to enter school at the age of 6 by passing entrance tests, but the majority of children enroll at the age of 7. Secondary education consists of three stages: elementary (four-year programme), basic secondary (five years) and senior secondary (two years). After completing (full) secondary education, students may continue their education in higher education institutes and universities, or in colleges offering specialized (vocational) secondary education (two- to three-year programmes).440

1. Right of access to education The Constitution stipulates that citizens must have guaranteed free secondary education in state schools. Fundamental rights are classified into rights of defense and rights of provision. The rights of defense relate to the

439 UNITED NATIONS. EDUCATIONAL, SCCIENTIFIC AND CULTURAL ORGANIZATION. World Data on Education. 7a ed. 2010/11. 440 UNITED NATIONS. EDUCATIONAL, SCCIENTIFIC AND CULTURAL ORGANIZATION. World Data on Education. 7a ed. 2010/11. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 327 right to liberty and therefore require the state not to intervene in individual liberty. The rights of provision, on the other hand, require the State to provide a public service. The right to education is an example of the right of provision, as the state provides the education service to citizens. Thus, the citizen has both the right of access and use these state provisions on equal terms.441 The right of access to education is closely linked to the right to equality. The relationship of the individual with state education institutions is characterized by the right of citizens to have access to education. This right of access also includes equality in the use of this state benefit. Thus, equality not only permeates access to school, but also includes the right to equal treatment in school. In providing educational service the school should treat all students equally. This issue is especially relevant in the context of multicultural society, where students are of different ethnicities or have different religions, which need to be respected in the school environment.442

2. Compulsory School Attendance The compulsory secondary education demonstrates the importance that education has for society, that is, it is not just an individual right, but a collective good to be protected by society and the state. The existence of a highly educated society is fundamental to its development. Access to primary and secondary schools is high in Kazakhstan. The total primary school enrollment rate was 91% in 2005, with a participation rate of 98%. In secondary schools, the numbers were 92% and 95% respectively.443

3. Free Education in Public Institutions The free education in public institutions stems from the State’s duty to

441 MALISKA, Marcos Augusto. A lecture on Brazilian Constitutional Law as Visiting Professor at Academician Y.A Buketov Karaganda State University. Curitiba – Karaganda, May 2012, p. 97. 442 On the issue of sociocultural diversity in education, see: SCHAUSHEKOVA, Bayan K. and BAKIROVA, Indira D. Ethnocultural competence is the basis of ethnocultural education. In. Education and Science without borders. Vol. 9, Nr. 18, 2018, p. 53; KOKHANOVER, Tatyana A. and SOKOLOVA, Irina N. Formation of multilingual personality of a student in the conditions of modern trilingual education in Kazakhstan. In. Education and Science without borders. Vol. 9, Nr. 17, 2018, p. 68; 443 According to https://borgenproject.org/education-kazakhstan/ Accessed August 22, 2019. Some data on education in the Karaganda region between 1991 and 2000 can be found in ZUYEVA, Ludmila I. and OLENCHUK, Oxana N. The Educational Level of the Population of Karaganda Region and Teacher Training in the History of Sovereign Kazakhstan. In. Education and Science without borders. Vol. 8, Nr. 15, 2017, p. 91. 328 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY provide the education service to its citizens. A person’s economic condition should not be an obstacle to access to education, as the right to receive formal education in state establishments is a universal right, enshrined in both the Kazakh Constitution and the Universal Declaration of Human Rights. According to art. 26 of the Universal Declaration of Human Rights, “everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages”. The International Covenant on Economic, Social and Cultural Rights provides for different treatment of the free provision of education at its different levels. According to Article 13 (i) primary education shall be compulsory and available free to all; (ii) secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (iii) higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (iv) the development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. Item 4 above points to the important issue of free education not only understanding the abstention of student fees, but also the need to establish an adequate scholarship system.

4. Private Education The central executive body responsible for the management of the education system in Kazakhstan is the Ministry of Education and Science. The Ministry supervises educational institutions funded from private educational institutions. Education service is a typical state activity. However, this state attribution does not prevent that education could be developed by private institutions. The right to liberty authorizes the existence of non-state educational institutions. The right to freedom of teaching and learning comprises both the right of teachers and students in public schools and the right of private REPRESENTATIVES OF THE ACADEMIC COMMUNITY 329 institutions to apply to public bodies for the operation of private schools and universities. Private education institutions complement state-provided education services, either by addressing a deficiency in public service coverage or by presenting a differentiated pedagogical proposal. According to art. 13 of the International Covenant on Economic, Social and Cultural Rights, the States Parties to the Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article444 and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. In this way, the norms of the Kazakhstan Constitution on private education are in line with this important international convention on social and cultural rights.

5. Quality of educational service The national system of assessment of the quality of education has been established to improve supervision and management of education, and to provide all stakeholders and society as a whole with information on the level of academic proficiency. In this process a significant role is played by the National Centre for Assessment of Quality of Education, established in accordance with the State Programme Education 2000-2005.445

444 Article 13 – 1. The States Parties to the present Covenant recognize the right of everyone to edu- cation. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental free- doms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 445 UNITED NATIONS. EDUCATIONAL, SCCIENTIFIC AND CULTURAL ORGANIZATION. World Data on Education. 7a ed. 2010/11. 330 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Universities, colleges and schools can define their own curricula within the framework of State educational standards. With the approval of the Committee for Education, universities may also define the programme for students´ admission. The Central Managerial (Monitoring) Body for Higher Education is responsible for assessment and certification of universities. Assessment activities are carried out in order to better evaluate the quality of education provided by universities, the application of national standards, the utilizations of budget allocations, and to stimulate creativity among university and students´ bodies.446

446 UNITED NATIONS. EDUCATIONAL, SCCIENTIFIC AND CULTURAL ORGANIZATION. World Data on Education. 7a ed. 2010/11. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 331

Gennady CHEBOTAREV Deputy Chairman of the International Union of Lawyers, Head of the Department of constitutional and municipal law of the Institute of State and Law of State University, Doctor of law, Professor, Honored lawyer of the Russian Federation THE CONSTITUTIONALIZATION OF THE PUBLIC PARTICIPATION OF THE CITIZENS IN THE STATE AFFAIRS’ MANAGEMENT

he adoption a quarter of the century ago of the Constitution of the Republic of Kazakhstan gave a start to the formation and approval of the authentic constitutionalism, involving the systematic thinking and installing of the constitutional values in life. TThe recognition of the people of Kazakhstan as a peaceful civil society committed to the ideals of freedom, equality and harmony, declared in the preamble of the Constitution of the Republic of Kazakhstan of 1995, is confirmed in reality. Constitutional basic values enshrined in the Constitution: separation of powers, rule of law, political pluralism, diversity of ownership, strengthening 332 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY fundamental rights and freedoms of man and citizen as the Supreme goal of society and the state, successfully implemented in the modern life of the Republic. This, in particular, is evidenced by the organized systemic process of institutionalization of public participation of citizens in public administration. Under the constitutionalization of the social participation the establishment of such a constitutional order, under which the norms of law, regulating the social relations, connected with the social participation of the citizens in the state administration, do not disagree with the social moral norms and principles in their entirety ensuring the free fair development of each member of the society, harmonious partnership relations of the civil society and state, formation of the authentic constitutionalism. The constitutionalization of the social participation of the citizens in state affairs’ administration assumes first of all the institutionalization of the whole legislation, regulating the corresponding social relationships. According to T. Khabrieva, the study of the constitutionalization of legislation makes it possible “to assess the degree of reality of the Constitution as the basic law of the state and society, to identify trends in the development of legislation, to establish changes in methods and means of legal regulation, to identify existing problems in this area.” [8, pp. 40-41] In recent years, the constitutionalization of ideas and provisions of the Basic Law concerning people as the only source of state power, on civil equality, economic development for the benefit of all people, on the social state, Kazakh patriotism has been developed in the “National Plan - “100 concrete steps”, approved by the President of the Republic of Kazakhstan in 2015. And in September – December of that year, the Parliament adopted 59 laws, including the Entrepreneurial, Civil procedure and Labor codes, laws on informatization, on access to information, on public-private partnership, on charity, on the community council, etc. [5, p. 31] Of course, the constitutionalization of legislation, if it is understood as strengthening the role of the Constitution as a basis for the development of individual industries, the comprehensive strengthening of the relationship of constitutional and sectoral norms, is one of the prerequisites for the real constitutionalism in the country. However, in addition to this aspect of the REPRESENTATIVES OF THE ACADEMIC COMMUNITY 333 essential content of this phenomenon, there are other equally important elements, such as constitutional culture, legal policy, constitutional patriotism, effective constitutional control, professional fair justice. Constitutionalism as a legal, political, philosophical, sociological category is a complex multidimensional status of social relations in the legal state and the emerging civil society. There are several definitions of the concept “constitutionalism”. Each of them highlights one or more characteristic features, properties of this phenomenon. As G.G. Harutyunyan writes “modern constitutionalism is the presence of fundamental rules of democratic and legal behavior established by public consent, their existence as an objective and living reality in public life, in the civil behavior of each individual, in the process of exercising state power. Constitutionalism is a manifestation of a certain culture adequate to the meaningful existence of a given society, it is a systematic and conscious presence of constitutional values in real social life, on which the whole legal system is based.” [1, pp. 290-291] The constitutionalism in reality assumes the constitutionalization not only of the sectoral legislation, that goes without saying, but also constituionalization of the life of civil society, of the entire system of the diverse social legal relations, connected with the realization of the natural democratic rights and freedoms of man, formation of the social participation in state affairs’ administration. The constitutionalization of the social relations in the Republic of Kazakhstan purposefully spread over the processes of formation of the democratic civil society, strengthening of the unity of the people of Kazakhstan. The establishment in March 1995 by the Decree of the President the Assembly of the people of Kazakhstan “became an efficient channel to identify the pressing issues practically of ethnical and cultural associations and transformation of the will of all the ethnic groups in a state policy, means of prevention or elimination of contradictions”. [5, с.34] The law of the Republic of Kazakhstan of May 21, 2007 «On amendments and additions to the Constitution of the Republic of Kazakhstan» establishes the Assembly of people of Kazakhstan as a constitutional state-public institution. The law of the Republic of Kazakhstan of October 20, 2008 334 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

“On the Assembly of the people of Kazakhstan» defined the status, formation and organization of the Assembly of the people of Kazakhstan, the Assembly of regions (cities of Republican significance, the capital). [2] The assemblies of the regions include representatives of ethno-cultural and other public associations, representatives of state bodies, as well as other persons, taking into account their authority in society. The assemblies interact with local state bodies, local self-government bodies, ethno-cultural and other public associations that carry out their activities in the field of inter-ethnic relations. In addition, the regional assemblies develop proposals for the nomination of candidates for deputies of the Majilis of the Parliament of the Republic of Kazakhstan, elected by the Assembly of people of Kazakhstan. The chairmen of assemblies of the regions are the governors of the regions. The working bodies of the assemblies of regions are the secretariats, located within the structure of akims’ secretariats. As the expert of the scientific expert council of the Assembly of the people of Kazakhstan Malinovsky Victor Aleksandrovich states «in kazakh model, the national and individual, the interests of the state-forming ethnic group of Kazakhs and all other ethnic groups are maximally balanced, mutually complement each other, removing the slightest distrust between people and turning the factor of multi-ethnicity and multiconfessionalism into one of the resources of the country’s success». To a large extent, there is the optimal combination of people’s, state and national sovereignties. [3] The priority directions in the work of the Assembly of the people of Kazakhstan in the modern period is the realization of the Concept of strengthening and development of the kazakh identity and unity, approved by Decree of the President of the Republic of Kazakhstan of December 28, 2015, and also the formation of the constitutional patriotism. The Republic of Kazakhstan for more than 25 years successfully balances and realizes the interests of state civilized linchpin of polyethnical people of Kazkahstan – kazakhs, native to the territory of the Republic and possessing in respect of its territory the fullness of historical rights, with the interests of all other ethnic groups living with them side by side for centuries». [4, с. 61] Realizing the peaceful character of the civil society and state, Kazakhstan REPRESENTATIVES OF THE ACADEMIC COMMUNITY 335 consistently develops partnership relations with many states in the frames of the Commonwealth of Independent States, Shanghai Cooperation Organization, Eurasian Economic Union and other international organizations. Friendly good-neighbourly relations have been developed with developed with the Russian Federation. The regions of Kazakhstan support and successfully develop economic, cultural, educational, partnership relations with the border regions of Russia. The Convention on cross – border cooperation of the CIS member States signed on October 10, 2008 contributes to the strengthening of international relations of the Tyumen region with Kazakhstan, the development of integration within the framework of cooperation of Independent States. Kazakhstan is traditionally one of the main foreign trade partners of the Tyumen region. According to the data of the Ural customs administration, mutual trade for 2018 amounted to 101,979. 72 thousand US dollars. Agreements on cooperation between Tyumen region and North Kazakhstan, Pavlodar and Mangistau regions were signed. The agreement between Mayor of North- Kazakhstan region and Government of Tyumen about cooperation in trade and economy, scientific and technical spheres foresees the interaction on such directions, as agribusiness engineering, oil and gas services, petrochemicals, wood processing, health, science and technology, mutual trade, environmental protection, cultural and humanitarian ties, sports and tourism, and others. To implement programs and plans of actions under the Agreement created a joint Commission working groups to coordinate the activities of the government of Tyumen region and Mayor of the North Kazakhstan region. [6] twinning relations between the cities of Ishim, Yalutorovsk, Golyshmanovo of Tyumen region and the city of Petropavlovsk, Shal akyn, Taiynshin districts of North Kazakhstan region are developing on a permanent basis. The Universities of Tyumen region coordinate with the Medical university of Astana, M. Kozybayev North Kazakhstan state university, Karagandy State industrial university and others. Since 2017 Tyumen State university jointly with L.N. Gumilev Eurasian national university realize the programme of dual diplomas “The protection of human rights and business”. In Tyumen industrial university jointly with Karagandy state university the program of 336 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY dual diplomas “The intellectual systems on transport and road construction” is being realized. The links between public associations are also being strengthened. Thus, the Public Council of the North Kazakhstan region signed a cooperation agreement with the Public chamber of the Tyumen region. In accordance with the Agreement, joint scientific conferences, art festivals and sports events are organized. National sports teams of the Republic of Kazakhstan took part in the all-Russian judo tournament “Sensei Cup”, the open all-Russian tournament on wrestling for prizes of the World champion and Europe champion, the silver prize-winner of Olympic games, the member of Public chamber of the Tyumen region V.V. Cheboksarov, the Championship of Russia in Tyumen in biathlon and other competitions. The prominent role in the social life of Tyumen region is played by the national - cultural autonomy of kazakhs. By the initiative of the public association the national holidays, concerts of the stars of national bandstand are being organized. On the basis of the Sunday school the additional studying of Kazakh language, playing the dombra, the traditions and customs of kazaks are being studied. The national-cultural autonomy renders informational assistance and support in social adaptation of the participants of the regional target program on assisting the voluntary resettlement of the fellow countrymen, living in the Republic of Kazakhstan to Tyumen region. The bodies of the state power, regional assembly of Kazakhstan render the necessary support to kazakh diaspora, they in fact accomplish the function of political territorial centre on consolidation of kazakhs, on maintaining and development of the state language, traditions and life, cultural heritage. This work is conducted in сlose interaction with scientific, educational organizations of Russia. Thus, in the international forum “The legal aspects of the inter-ethnic relations” on February 2016, the member of the Constitutional Council, expert of scientific and expert Council of the Assembly of people of Kazakhstan, doctor of law, professor Viktor Malinovsky presented his deep scientific report. In his report, he spoke about Kazakh model of social harmony and national unity, deservedly bearing the name of Nursultan Nazarbayev, outlined the main content of the “National Plan - REPRESENTATIVES OF THE ACADEMIC COMMUNITY 337

100 concrete steps” to implement the five presidential institutional reforms, noted the importance of the “Concept of strengthening and development of Kazakhstan’s identity and unity”, approved by Decree of the President of the Republic of Kazakhstan of December 28, 2015. [4, p. 62] Graduate student of Tyumen state University Tolegenkyzy Alia made a substantive report at the International conference in Tyumen “Constitutionalization of public participation of citizens in the administration of state affairs”. [7, pp. 292-297] Such educational and scientific contacts make it possible to exchange historical and practical experience in understanding and forming genuine constitutionalism, and to strengthen international cooperation.

REFERANCES: 1. Harutyunyan G.G. Constitutional monitoring / Harutyunyan G. G.-EP., “Nahar”. 2016. Pp. 290-291. 2. Law of the Republic of Kazakhstan “On the Assembly of the people of Kazakhstan” of October 20, 2008 No. 70-IV 3. “Kazakhstanskaya pravda”, No. 46, March 11, 2016 4. Malinovsky V.A. «Kazakhstan model of social harmony and national unity: politics, law, practice» / / Legal aspects of harmonization of interethnic relations: materials of the II Tyumen international forum. Tyumen, 2016 / Rel. ed. Sciences, prof. Tyumen, Publishing house of Tyumen state University, 2016. Pp. 61. 5. Mami K.A., Rogov I.I., Malinovsky V.A. «Republic of Kazakhstan: chronicle of constitutionalism». - - Almaty: Kazak universities, 2019. Pp. 34. 6. Agreement between the government of Tyumen region (Russian Federation) and Akimat of North Kazakhstan region (Republic of Kazakhstan), ttps://admtyumen.ru/files/upload/OIV/D_ipipp/no.%2071_2018. Pdf 7. Tolegenkyzy A. «Some questions about the legal participation of citizens in the normative activity of state bodies of the Republic of Kazakhstan» / Constitutionalization of public participation of citizens in the management of state Affairs: proceedings of the International scientific and practical 338 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY conference, Tyumen, October 19-20, 2018 [Rel. ed. G. N. Chebotarev] - Tyumen, publishing house of Tyumen state University. 2019. Pp. 292-297. 5. Mami K. A., Rogov I. I., Malinovsky V. A. Republic of Kazakhstan: chronicle of constitutionalism. - - - Almaty: Kazak Universiteti, 2019. Pp. 34. 8. Khabrieva T. «Constitutionalization of the legislation of the Republic of Kazakhstan». // Kazakhstan’s trend - from totalitarianism to a democratic and legal state (view from the side) / Collection of articles. ed. and the author of the Preface, doctor of law, Professor, honored worker of the Republic of Kazakhstan I. I. Rogov. - Astana, 2015. Pp. 40-41. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 339

Yuri DUK Associate professor of the Yelets State University named after I.A. Bunin, academician of the International Slavic Academy, Candidate of legal Sciences CONSTITUTION – ITS MEANING IN THE STRUGGLE WITH THE REGIONAL CRIMINALITY

he beginning of the first century was marked by an enormous amount of the positive and negative processes, emerging and rapidly proceeding in the different various fields of life as of the separately taken citizen of the country so the society in whole, concerningT policy, economy, social and other spheres. The positive processes are called by the necessity of the dynamic and comprehensive development of the modern civilized democratic state, providing security, prosperity and social guarantees to each citizen regardless of regional and other peculiarities, bringing sometimes the essential correctives in the given processes. The positive processes manifested as well in the positive dynamics of the economic and 340 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY social development of the CIS countries, the leaders of which and the Russian Federation and the Republic of Kazakhstan447. This fact became possible owing to the balanced and coherent work of all the social organizations and unions, with the availability of the concrete directions of the movement of the society ahead. This was several times noted by the leaders of our countries. Among the negative processes and phenomenon, proceeding and emerging in our countries, most sensitive and dangerous are the criminality and the criminalization of the population. The criminality brings the essential damage to the security and well-being of the citizens of our countries, and the level of the economic development of the countries in whole, hinders the improvement of economic, social, political and other connections, creates serious difficulties in formation and expanding democratic rights and freedoms of the citizens on the territories of our countries, including those, guaranteed by the Constitutions of our states. The modern level of the registered criminality is of serious problem. Analyzing the level and dynamics of the criminality it is seen that for the citizens of our countries in 2018 the criminality as the phenomenon did not lose its actuality. The law-enforcement bodies of our country in 2018 registered the high level of criminality, which is at the level of the beginnings of the 90-s of the last century. The whole period of the reforms from the beginning of the 90-s up to today is accompanied by high level of criminal activity of the population of our countries, which is confirmed by the statistical information, given in table №1.

Table №1 The Level and dynamics of the criminality in Russia and the Republic of Kazakhstan448

447 Economic development of CIS countries. [E-resource] //https://visasam.ru/emigration/economy/ ekonomika-stran-sng.html. (data of address 25.10.2019). 448 Crime and delinquency (1991-1995) Statistical collection. 1996 P. 16. Official website of the Ministry of internal Affairs of the Russian Federation. [Electronic resource] // https://мвд.рф/re- ports/item/12167987/ (accessed 25.10.2019). Crime in Kazakhstan. [Electronic resource] // https:// ru.wikipedia.org/wiki (accessed 25.11.2019). Committee on legal statistics and special accounts of the General Prosecutor’s office of the Republic of Kazakhstan. [Electronic resource] http:// pravstat.prokuror.gov.kz/rus/o-kpsisu/deyatelnost-komiteta/analiticheskaya-informaciya. (accessed 25.10.2019). REPRESENTATIVES OF THE ACADEMIC COMMUNITY 341

Russia Kazakhstan 2167964 173858 2755669 183913 2952367 150790 3855373 141271 3582541 128064 2639287 287681 1991532 292286

1991 1995 2000 2006 2007 2012 2018 The statistic shows the steady high level of criminalization of the population of our countries. The periodical changes which are being observed the separate years do not have tendencies to the fundamental changes to the positive side. According to the data of MIA of RF 1991532 crimes are registered in 2018, what constitutes 1356 crimes for 100 thousand citizens.449 Statistics show that crime detection is increasing. However, this does not reduce the high level of dissatisfaction with the work of law enforcement agencies engaged in combating crime. The population is concerned about the possibility of outright rampant crime. If we take into account the fact of high latency of crime, the picture of the criminal situation over the past decades remains quite complex.

Table №2 The statistics of the murders in the world for 100 thousand people Countries The number of killed for 100000 people Japan 0,3 China 0,8 France 1,2 India 3,3 USA 3,8 Republic of Kazakhstan 7,8 Russia 9,0 Mexico 18,9 SAR 31,9 Global average 6,9

449 Official website of the Ministry of internal Affairs of the Russian Federation. [Electronic resource] // https://mvd.ru/folder/101762.. 342 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

In this situation, human and civil rights, which guarantee the safety of life and are enshrined in both the Constitution of the Russian Federation and the Constitution of the Republic of Kazakhstan, are seriously violated. Article 2 of the Constitution of the Russian Federation provides that human rights and freedoms are the highest value and the state is obliged to observe and protect them, article 7 indicates the direction of the state policy to create conditions that ensure a decent life and free development of the person. The Constitution of the Republic of Kazakhstan (article 1) states that the Republic of Kazakhstan claims to be a democratic, secular, legal and social state, the highest values of which are the person, his life, rights and freedoms. Humanity has been fighting crime since ancient times. Crime as a negative phenomenon accompanied all periods of development of society, regardless of the presence of positive or negative dynamics of its development, changing not only its qualitative and quantitative indicators depending on the specific conditions prevailing at a particular stage, but also developing new and improving the old ways of illegal human behavior. Society changes-crime changes. Our society has changed a lot in the last few decades. Crime has changed just as much. Meanwhile, the methods of studying crime, as well as the methods of responding to criminal manifestations, remained the same. This has led to the fact that we are not only unable to effectively counteract the criminal activity of our citizens, but also do not even know the proper extent of the crime itself, and this statement is true for almost all post-Soviet States. The changed criminality requires the change of the ideology of the struggle with it. First and basic task is not the complete liquidation of the criminality and all the reasons and conditions, accompanying it, which is not possible in near future even theoretically, but setting harsh social control over the criminality. This is possible only after studying the reasons and the conditions, producing the criminality. Without an objective picture, it is simply impossible to develop adequate response measures. Today, almost no one questions the thesis that official statistics do not reflect the real level of crime, which, according tomany scientists criminologists at times exceeds the official statistics. This fact once REPRESENTATIVES OF THE ACADEMIC COMMUNITY 343 again confirms the need to develop new methods of fighting crime. As the practice of recent years has shown, activities designed with regional characteristics in mind are of particular value in terms of effective crime prevention. A regional approach to development of measures of counteraction to crime involves the study of crime and its causal complex selection of objects preventive effects depending on the characteristics of the elements of the external environment (physical and social) at the place of commitments of the crimes, since the territorial distribution of crime is determined by features of the external environment and the historical development of particular regions, their population, its sex and age structure and social composition, distribution of industrial and agricultural enterprises, social and cultural facilities450. For our countries, possessing the vast territories the application of the regional approach in counteraction to criminality are sufficiently actual. The given direction allows to identify, taking into account the specifics of the territory, a certain set of factors that determine regional crime, and on the basis of the data to develop prevention measures. A.I. Dolgova notes that “ these studies allow us to penetrate deeper into the mechanism of determination of crime and its changes, to establish patterns of generation and functioning of crime in different socio-economic, socio-cultural and other characteristics of the regions, to highlight these patterns of general and specific. All this is a necessary prerequisite for the development of strategic measures to combat crime»451. This approach has sufficiently high significance in criminology, as it allows on the scientific basis: - to analyze the regional specifics of crime and the related criminal situation, which creates an opportunity for a differentiated approach to the organization of the fight against crime in the region; - develop a criminological classification of regions;

450 Borbat A. the Concept and structure of lifestyle and the possibility of using information about it to solve problems of crime prevention at the regional level / / Actual problems of criminological research of regional crime: Mat-ly 3 nauch.- prakt. Conf. October 16-19, 2015, . 451 Dolgova A.I. Theoretical premises and General results of the study of territorial differences in crime and their causes / / Territorial differences in crime and their causes: SB. nauch. tr. Moscow, 1987; 344 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

- formulate general recommendations related to the regional crime prevention strategy, - elaborate the managerial decisions, connected with the legal, organizational, material, and other maintenance of the crimes prevention and struggle with criminality. But any methodics, any general state approach to the solution of the tasks, including regional, is not possible without taking definite legal norms, without general state strategy and policy in the sphere in the field of the criminality counteraction in strict correspondence with the positions, written in the Constitution of the state. The key notion in the system of social life and functions definition is the term “policy”. The politics of the state is the ideological justification of the state functions in one or another field of social relations. Its activity is aimed at realization of such functions. One of the highest manifestations of the will of the state is a law – its formal expression in the normative-legal acts, and its practical application. It is in the written law that the fundamental ideas, which, by virtue of the obligations assumed, should be guided by the state in the person of all its authorities and officials, should find their normative embodiment. No official should allow himself to neglect the legislatively proclaimed legal policy of the state. At the same time, the views of individual state or public figures, at any level, including regional ones, cannot be identified with state policy. A.I. Korobeev, A.V. Us and Yu.V. Golik noted that “... criminal policy in its traditional sense is a General line that defines the main directions, goals and means of influencing crime by forming criminal, criminal procedure, correctional labor legislation, the practice of its application, as well as by developing and implementing measures aimed at preventing crimes».452 The President of the criminological association professor A.I. Dolgova emphasized that “..rather actual is the problem of formation of the legal and criminological culture of the officials, including those, who are so to speak,

452 Korobeev A.I., USS A.V., Golik Yu. V. Criminal law policy: trends and prospects. Krasnoyarsk, 1991. P. 7. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 345 differently touch upon the solution of the issues of criminality”.453 Our countries for today accumulated the solid legal base on counteracting the criminality. The fundamental are the norms of the Constitution, the rules of the international agreement, generally accepted principles and norms of the international law in the Russian Federation and the Republic of Kazakhstan, legal and sublegal acts. The generally recognized principles and norms of the international law, the rules of the international agreement act even in case, when they are not foreseen by laws and have priority over the laws, but what is very significant, the Constitution has the priority over them. According to the article 15, the Constitution of the Russian Federation has a high legal force, direct effect and is applied on the whole territory of the Russian Federation. The laws and other legal acts, adopted in Russian Federation shouldn’t contradict the Constitution of Russian Federation.454 According to the art. 4 of the Constitution of the Republic of Kazakhstan the acting law of the Republic are the norms of the Constitution, corresponding to it laws, other normative legal acts, international agreements and other obligations of the Republic, and normative resolutions of the Constitutional Council and Supreme Court of the Republic. The Constitution has the highest juridical force and direct effect on the whole territory of the Republic. The international agreements, ratified by the Republic have priority over its laws and are applied directly, except the cases, when out of the international agreement it follows that for its application the adoption of law is required.455 The presence of subjects with their specific national, historical, geographical, natural-climatic and other features, on the one hand, contributes to a more optimal solution of state-legal, socio-economic and managerial tasks, including

453 Report of the President of the Russian criminological Association, doctor of law, Professor A.I. Dolgova at the parliamentary hearings on the topic “on the state and problems of legislative support of the state system of crime prevention” 454 Russian Federation. Constitution (1993). Constitution of the Russian Federation [Text]: official text. – М.: Marketing, 2001. – 39 p. 455 The Constitution of the Republic of Kazakhstan was adopted at the Republican referendum on August 30, 1995 (with changes and additions made by the laws of the Republic of Kazakhstan from October 7, 1998 No. 284, from May 21, 2007 No. 253, from February 2, 2011 No. 403-IV) / / IN- FORMATION SYSTEM PARAGRAPH.The Constitution of the Republic of Kazakhstan was adopted at the Republican referendum on August 30, 1995 (with changes and additions made by the laws of the Republic of Kazakhstan of October 7, 1998 No. 284, of May 21, 2007 No. 253, of February 2, 2011 No. 403-IV) / / INFORMATION SYSTEM PARAGRAPH 346 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY the struggle against crime, on the other - inevitably generates problems of differentiation of subjects of competence and powers between the state and its subjects, relationships and responsibilities. It is quite obvious that state authorities and officials are not only empowered, but also bear constitutional and legal responsibility for the performance of their functions. However, in the theory and practice of constitutional law, the constitutional and legal responsibility of authorities and officials was practically undeveloped, in contrast to the disciplinary, administrative, civil and criminal liability, the main subject of which is a person.456 All the subjects of the Russian Federation in accordance with the article 5 of the Constitution acquired the right to have their legislation. Here it is necessary to consider that, if all the republics as national- state educational entities had some law-making experience, the regions were practically derived of such an opportunity. The absence in the subjects of the Russian Federation of the specialists brought to the fact that some RF subjects started to adopt on average more than 60 laws a year, among them those, directed to the counteraction to the crimes and lawbreaking violating the Constitutional norms and federal legislation by bodies. However they did not bear any responsibility for it until the adoption of the Federal law N 184-FL «Of the general principles of the organizations of the legislative (representative) and executive bodies of the state subjects of the Russian Federation».457 It for the first time foresaw the general norm, devoted to the responsibility of the state bodies of the subjects of RF of (p. 1 art. 3), and special norms (art. art. 9, 19, 29.1), regulating the issues of legislative (representative) and executive bodies responsibility. At present the bodies of prosecution identified tens of thousands of facts of contradiction of the regional laws and normative acts to the Constitution of the Russian Federation and federal legislation, including those directed at counteraction of the criminality in the corresponding regions.458

456 Tsaliyev А.М. The constitutional-legal responsibility of the legislative and executive state bodies of the subject of the Russian Federation // The history of state and law. 2009. N 14. p. 5 - 9. 457 Federal law of 06.10.1999 N 184-FL (red 03.07.2016) “Of general principles of the organization of legislative and executive bodies of state law of the subjects of Russian Federation” 458 Tsaliyev M.А. The constitutional-legal responsibility of the legislative power of the subject of Rus- sian Federation. // The history of state and law. 2009. N 14. p. 5 - 9. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 347

The desire of the citizens of the regions of our countries to live in a safe state is quite understandable. In a state that has a legal framework in the field of combating crime, taking into account regional characteristics, which is able to effectively counteract crimes and offenses in specific spatial boundaries and in the state as a whole. A very encouraging phenomenon of recent years is the activation of the civil position of the population, which is expressed in the people’s legislative initiative aimed at changing legislation, including in the field of combating crime. Regional legislative bodies of the regions have also stepped up their efforts to develop and adopt legal acts that contribute to the reduction of crime in the region, but this work has so far yielded little results. Legislative initiative and adoption of legislative acts by the subjects of the state should in no way contradict the basic provisions of the Constitution of the state, no matter what good intentions were not guided by regional legislators. For these purposes, the Constitution is intended as a guarantor, able to curb self-serving and illiterate politicians and legislators who try to develop and adopt regional laws that contradict the Constitution. The world is changing, states are changing, and these processes are proceeding very rapidly. This topic is considered in more detail by I. M. Ragimov, S.N. Baburin, Yu.V. Golik, Yu.I. Duk and A.I. Korobeev in the analytical report: “the Modern state in the era of global transformations”.459 With fast growing global community will not stop in its development for individual states, do not have time to improve methods and mechanisms of governance, taking into account the needs of each particular person region of their features, not creating or not using effective mechanisms of realization of the rights and freedoms of citizens in accordance with the Constitutions. We must quickly develop and, most importantly, implement cutting-edge developments in a wide variety of areas, including the struggle against crime.

List of references 1. Russian Federation. Constitution. (1993). The Constitution of Russian Federation [Text]: official. text. – M.: Marketing, 2001. – 39 p.

459 The modern state in the epoch of global transformations: analytical report / I.M., S.N. Baburin, Yu.V.Golik [and others.] – Saint-Petersburg, LTD «Legal centre-Academia», 2019. – 344 p. 348 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

2. Constitution of the Republic of Kazakhstan on the republican referendum August 30, 1995 (with amendments by law RK of October 7 1998 №284, of 21 May 2007 №253, of February 2011 № 403-IV) // PARAGRAPF INFORMATIONAL SYSTEM 3. Federal law of 06.10.1999 N 184-FL (red of 03.07.2016) “On general principles of the legislative and executive bodies of the state power subjects of Russian Federation”. 4. A. Borbat “The notion and structure of the life mode and possibilities of the application of the information of it for the resolutions of the tasks of the crimes at the regional level” // Actual problems of criminological research of regional crime: materials of 3rd conf. October 16-19, 2015, Baku. 5. Dolgova A.I. Theoretical premises and General results of the study of territorial differences in crime and their causes / / Territorial differences in crime and their reasons, Moscow, 1987; 6. Korobeev A.I., Uss A.V., Golik Yu.V. Criminal law policy: trends and prospects. Krasnoyarsk, 1991. P. 7. Ragimov I, Baburin S., Golik U. [and others.] The modern state in the epoch of the global transformations: the analytical report -Saint-Petersburg, «The juridical centre- Academia» JSC, 2019. – 344 p. 7. Tsaliyev A. The Constitutional-legal responsibility (representative) state of the subject of the Russian Federation // The history of state and law. 2009. N 14. p. 5 - 9. 8. Report of the President of the Russian criminological Association, doctor of law, Professor A. I. Dolgova at the parliamentary hearings on the topic “on the state and problems of legislative support of the state system of crime prevention” (Moscow. 14.04.2011): transcript / / Federation Council of the Federal Assembly of the Russian Federation. URL: http://www.council. gov.ru/files/parliament_attend/177.doc (accessed 8.2016). 9. Committee for the legal statistics and special records of the General Prosecutors office of the Republic of Kazakhstan. [E-resource] http:// pravstat.prokuror.gov.kz/rus/o-kpsisu/deyatelnost-komiteta/analiticheskaya- informaciya. (date of appeal 25.10.2019). REPRESENTATIVES OF THE ACADEMIC COMMUNITY 349

10. The official site of RF MIA. [E-resource] // https://mvd.ru/folder/101762. (date of appeal 25.10.2019). 11. The level of criminality in the world [E-resource] // https://visasam. ru/emigration/vybor/prestupnost-v-mire.html. (date of appeal 25.10.2019). 350 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Sreto NOGO Professor of Megatrend University, , Doctor of law INALIENABLE HUMAN RIGHTS IN THE REPUBLIC OF SERBIA

he whole development of the human society was marked by the aspiration of the human society to the freedom. Does this will arise because the life of the person always has been unfree or does it arise as the product of influence of the social norms? If this feeling is theT product of the human nature, then, regrettably, there will be no changes, because it concerns the human feelings. The human feelings can not be affected. Any of the attempts to change these feelings only consolidate them. Changing people’s feelings is much easier, especially the feeling of being unfree, if it is caused by social norms, which rule the behavior of the men. Particularly for these reasons we should constantly check these social norms REPRESENTATIVES OF THE ACADEMIC COMMUNITY 351 at each stage of social development. The freedom of the man was the subject of the interest of the largest political programmes, such as Magna Karta libertatum of 1215, French declaration of the human rights and citizenship of 1789, the Soviet declaration of the working people and exploited people of 1918 and many others. There is almost no country, which in 21st century doesn’t pay attention to the supremacy of law and human rights. In almost all the countries the right to life is guaranteed. The Republic of Serbia commits to observe the inalienable human rights in accordance with the most important universal international agreements, ratified by it460 and all these documents became the constituent part of its legal order. They won’t be applied only in cases when the ratified international agreements contradict the Constitution of the Republic of Serbia, and in all other cases the international law has supremacy over the national. The multiple international documents, defining the particular rights and freedoms in the field of human rights in the normative interpretation, result in establishment of minimal standards, which the states should implement in their national legislation. In this manner, the big differences on the legal status in the national frames and the human rights are consolidated as a universal, indivisible, and mutually dependent rights. This generally adopted rules on human rights and freedoms are applied by national states by means of political and legal institutes. The generally accepted rights and freedoms – are «the autonomous norms or imperative of the international society, collectively changing its legal status and the commonality of the people in the states, setting the legal frames of the legislative and actual activity of the states, thus restricting the mighty of the state in reference to the individuum and commonality».461

460 The International Covenant on civil and political rights and its two OP, the International Cov- enant on economic, social and cultural rights; the international Convention on the elimination of all forms of racial discrimination; the international Convention on the elimination of all forms of discrimination against women and its OP; the Convention on the rights of the child and its two OP (on the involvement of children in hostilities and on the sale of children, child prostitution and child pornography); the Convention on the prevention and punishment of the crime of genocide; Conven- tion against torture and other cruel, inhuman or degrading treatment or punishment and OP to this Convention; Convention on the rights of persons with disabilities and OP to this Convention; Conven- tion for the protection of all persons from enforced disappearance; OP to the Geneva conventions of 1949 (Protocol III); Convention for the protection of intangible cultural heritage; Convention for the protection of human rights and dignity in connection with the application of the achievements of biology and medicine; Convention on human rights and Biomedicine, etc.. 461 Milenko Krecha: public International law, faculty of Law, Belgrade, 2010, p. 532 352 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

The citizens –are the subject and the bearers of the human rights, hence, the task of the state is to protect these rights by Constitution and laws, thus, preventing any abuse of them. The large part of the Constitution of the Republic of Serbia is devoted to the protection of the fundamental human rights. The safeguarding and implementation of the equality and freedom, consolidated in the highest act of the state, simultaneously indicate to the observance of the equality and freedom of each of its member. The Constitutional Court, as the independent state body has the commitment and the task to protect the rights and freedoms of man and the minorities462. By its work and activity this body should correct the possible deficiencies in human rights protection. The Constitutional court, as a consequence of its work in the frames of its competence, is often compelled to solve the issues of normative coherence of the laws and other general acts to the Constitution. Often, the legitimacy of the definite law is put under the question, as some of its requirements not in the sufficient manner observe the generally accepted rules of human rights and freedoms. In this article, we give two examples, where the Constitutional court spoke out about the violations of this principles, thus, contributing the strengthening of the legal security, protection and safeguarding of the human rights and freedoms. The Ombudsmen on the generally accessible information and protection of the data and individuality filed the complaint to the Constitutional Court of Serbia on the examination of the constitutionality of the articles 13 part 1 in conjunction with the article 12-part 1 paragraph 6 and article 16 part 2 of the Law «On counterintelligence agency and military intelligence agency». In the legislative sentence it was written that the argued positions of the law, according to which on the basis of the order of the director of the Military counterintelligence agency or the person authorized by him, by means of secrecy electronic control, it is possible to collect information of telecommunication traffic and the location of the user without any knowledge of their content, as well as the provision of article 16 part 2 of the Law, which stipulates that the Military counterintelligence Agency has the right to demand from the operators and receive information about the users of

462 Constitution of the Republic of Serbia, Official Gazette, Belgrade, 2006, art. 166 REPRESENTATIVES OF THE ACADEMIC COMMUNITY 353 their services, independently and without any role of the court, inconsistent with the provisions of article 41 part 2 of the Constitution of the Republic of Serbia, since this is contrary to the established inviolability of the secrecy of correspondence and other means of communication, which is permitted only on the basis of a court decision. The Common European Convention and International Pact on civil and political rights guarantee to each individual the right to the private life. The European court of justice has taken a position on a broad interpretation of the right to privacy, bearing in mind that its contents cannot be enumerated in advance by item. The Constitution of the Republic of Serbia guarantees physical and mental inviolability (article 25), inviolability of the home (article 40) and secrecy of correspondence and other means of communication (article 41). The Constitution contains a provision guaranteeing data protection and stipulates that the collection, storage, processing and use of personal data are regulated by law. The European Union in 2006, after a series of terrorist attacks, adopted the Directive on the storage of user metadata 2006/24/EC. This has enabled government agencies dealing with security issues to implement in their legislation the right to access the necessary data at any time463. In peacetime, each state has the duty to compel the security forces to respect the fundamental human rights and freedoms contained in international instruments that are consistent with the national Constitution and the provisions of the law. These rights are innate rights for every human being, and therefore they must be respected by all state institutions. In 2013, the European court of justice began a trial to assess the consistency of EU Directive 2006/24 with the European Union Charter on fundamental rights and freedoms, i.e. whether the storage of personal data is a disproportionate violation of the right to privacy as a fundamental human right. The telecommunications law adopted by the Republic of Serbia in 2010 contained no guarantees when it comes to access to stored data. He interpreted the content of the user’s communication and access to stored data in different ways. In the first case, he demanded the decision of the relevant court, and

463 See:Law on Military counterintelligence and intelligence agencies “Service Bulletin RS” 44/10 and on information security Agency “Service Bulletin RS” 42/02, 111/09 354 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY in the second he referred to other laws (the criminal code, AIB, VRA, etc.). Specifically, the law on Military counterintelligence and intelligence agencies contains provisions that state that these bodies have access to the content of the user’s communication without a court decision. Article 16 part 2 of the Law stipulates that the Military counterintelligence Agency has the right to demand and receive information from Telecom operators about users of their services independently and without any role of the court. The Ombudsman and Commissioner for generally accessible information considered, that such a decision contradicts the article 42 part 2 of the Constitution of the Republic of Serbia, because it doesn’t comply with the established inviolability of the correspondence and other means of communication, which can be neglected only on the decision of the court. It is prescribed by law that special steps and measures, referring to the article 12 paragraphs 1-6, can be undertaken on the basis of the order of the director of the Military counterintelligence agency or authorized by him person ( article 13 part 1), that Counterintelligence agency is entitled to get information from the operators and users of the service of the communication traffic, location of the traffic and other data, important for the results of undertaking especial steps and measures (article 16 part 2). The Constitutional Court, coming out of the fact that the Constitution of the Republic of Serbia enshrines that supremacy of law is the main prerequisite of the Constitution, and it roots in the inalienability of the human rights and the supremacy of law, acts; the rule of law, among other things, working through constitutional guarantees of human and minorities’ rights and the principle of supremacy of the Constitution and law (article 3): stipulated by the Constitution, human rights and minorities is directly applicable, and that provisions on human rights and minorities interpreted in favor of improving the values of a democratic society, pursuant to valid international standards of human rights and minorities, and also the practice of international institutions supervising their implementation (article 18, part 1 and 3), that the guarantees of inalienable human and minority rights in the Constitution contribute to the preservation of human dignity and to the realization of full freedom and equality for every individual in a just, open and democratic society based on the rule REPRESENTATIVES OF THE ACADEMIC COMMUNITY 355 of law (article 19); that the rights of man and minorities can be restricted, if this restriction is allowed by the Constitution for the purposes, foreseen by Constitution, in a necessary volume, to satisfy the constitutional aim of the restriction in the democratic society without damaging the essence of the guaranteed right (article 20 part 1); that the secrecy of the correspondence and other means of communication are inviolable, and that exclusions are allowed only for a definite term and on the basis of the decision of the court; if they are demanded for the criminal case initiating and protection of the security of the Republic of Serbia in the way it is foreseen by law (article 41). The Constitutional court, on the basis of the positions of the article 42a part 1 paragraph 2 and the article 46 paragraph 3 of the Law on the Constitutional court, brought in the decision, in which it stated, that the argued articles of law on The Military counterintelligence agency and on the Military intelligence agency are not accorded with the Constitution. In this paper we will give another example where the Constitutional court assessed the compliance of certain provisions of the law with the Constitution. The Constitutional court began the trial on assessment of constitutionality of provisions of articles 13, 14 and 15 of the Law on security information Agency (“Official Gazette RS”, No. 42/02), which provides that the provisions of the Act are contrary to article 19 in conjunction with article 1 of the Constitution of the Republic of Serbia, because “they involve a violation of the principle of inviolability of the secrecy of correspondence and other means of communication for reasons of security of the Republic of Serbia, while the Constitution does not give such an opportunity. According to the initiator, the contested provisions are unclear, inarticulate, incomprehensible, give the state authorities too much discretion, and therefore they have a tendency to arbitrary interpretation, as well as to any other kind of abuse, thereby clearly displaying a blatant contradiction with the Constitution of the Republic of Serbia.” By the argued positions of the Law on the Agency on informative security it is prescribed, that the director of the Agency may if it seems necessary for the reasons of the security of the Republic of Serbia, by its decision, on the basis of the previous court reprimand, decide, with regard to particular physical 356 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY and legal entities, that the particular measures should be applied, breaking the principle of inviolability of the secrecy of correspondence and other means of communication in the case considered by this law. The right for secrecy of correspondence and other means of communication is not absolute because the Constitution provides exceptions to this right, according to article 20 part 1 of the Constitution, which provides that constitutionally guaranteed human rights and rights of minorities may be restricted by law, if these restrictions are allowed by the Constitution, for the purposes foreseen by the Constitution, to the extent necessary to meet the constitutional purpose of restriction in a democratic society without damaging the essence of the guaranteed right. It is provided so that this exception is only allowed under certain conditions, namely “for a certain period, on the basis of judicial decisions and goals, stated by article 41 of part 2 of the Constitution relating to criminal proceedings or protection of the security of the Republic of Serbia in such a way that it is regulated only by the law. The Constitutional court confirmed, that the argued positions of the articles 13-15 of the Law contain the infringement of the principle of inviolability of the correspondence secrecy, and other means of communication and means and measures of restriction of this constitutional right. The Сonstitutional court held the position that “the rule of law does not impose only the requirement of subordination of power to the Constitution and the law, but puts before the legislative power the requirements concerning the quality of the law adopted by the legislator. In the opinion of the present court, in order to regard a general act as a law, not only in a formal sense, but also in a substantive sense, that law must be sufficiently precise, understandable and transparent so that the individual can reconcile his conduct with it without fear that due to incomprehensible and inaccurate rules he will be denied the exercise of guaranteed rights or that because of this he will be liable for the consequences. The requirements of certainty and accuracy of the legal norm are not met if citizens, as conscientious people, have to unravel their meaning and content”464

464 See decision of the Constitutional court №: IУз – 107/2011; I Уз – 51/2012; IУз – 299/2011; IУз – 53/2006. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 357

While bringing in the decision on this initiative, the Сonstitutional court assumed that the interference of the executive power in the constitutionally guaranteed rights of individuals should be subject to effective control, carried out, as a rule, by judicial institutions, because judicial control gives the best guarantees of legality, impartiality and correctness of the case. Surveillance measures over secret correspondence and other means of communication leave room for different kinds of abuses about the collection and processing of data on citizens and legal entities. The Constitutional court has taken the position that the issuance of a reasoned judicial decision in writing is a necessary condition for the application of measures to limit the secrecy of correspondence and other means of communication. Therefore, the Constitutional court gave such an assessment that the contested provisions of the law on information security do not comply with the Constitution.

List of references: 1. Mayer, Henry (1998). All on Fire: William Lloyd Garrison and the Abolition of Slavery. St. Martin’s Press. стр. 110 2. Steiner, J. & Alston, Philip (1996). International Human Rights in Context: Law, Politics, Morals. Oxford: Clarendon Press. ISBN 019-825437- X. 3. Donnelly, Jack. (2003). Universal Human Rights in Theory & Practice. 2nd ed. Ithaca & London: Cornell University Press. 4. Forsythe, David P. (2000). Human Rights in International Relations. Cambridge: Cambridge University Press. 5. Ignatieff, Michael. Human Rights as Politics and Idolatry. Princeton & Oxford: Princeton University Press. 6. Landman, Todd (2006). Studying Human Rights. Oxford and London: Routledge. ISBN 978-0-415-32605-6. 7. Shute, Stephen & Hurley, Susan (editors). (1993). On Human Rights: The Oxford Amnesty Lectures. New York: BasicBooks. 8. Sunga, Lyal S. (1992) Individual Responsibility in International Law for Serious Human Rights Violations, Nijhoff Publishers. 358 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

9. Hadzic M., Milosavljevic B., Stojanovic S. and Eidus F. (EDS.) (2009) Annual collection on reforms of security structures in Serbia. Belgrade: center of civil-military relations. 10. Hadzic M. and Petrovich P. (EDS.) (2008) Democratic oversight of the application of special powers. Belgrade: Center of civil-military relations. http://www.bezbednost.org/Svi-projekti/751/Demokratski-nadzor- nad-primenom-posebnih-mera-i.shtml. 11. Papir H. Yu. (2009) Legal state and constitutional justice. Belgrade. Konrad Adenauer Stiftung http://www.kas.de/wf/doc/kas_19249-1522-2- 30.pdf?100401120751 (link date January 22, 2011). 12. Stojanovic S. (ed.) (2008) Private security companies in Serbia- friend or threat. Belgrade. Center of civil-military relations.http://www. bezbednost.org/Bezbednost/1012/Privatne-bezbednosne-kompanije-u- Srbiji.shtmlhttp://www.ombudsman.rs/index.php/lang-sr/izvestaji/posebnii- izvestaji/791-2010-03-13-14-29-30. 13. Report of the Ombudsman of the Republic of Serbia on the preventive and control visit to the information security Agency, made in 2010, with recommendations and opinions. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 359

Yulia GRACHEVA Professor of the Department of criminal law of the Kutafin Moscow State Law University, Doctor of law

Alexander KOROBEEV Head of the Department of criminal law and criminology of the Law school of the Far Eastern Federal University, Doctor of law, professor, Honored worker of science of the Russian Federation

Sergey MALIKOV senior lecturer, Department of criminal law, O.E. Kutafin Moscow State Law University, Candidate of legal sciences

Alexander CHUCHAEV Professor of the Department of criminal law of the O.E. Kutafin Moscow State Law University, Doctor of law, professor

THE RETROACTIVE EFFECT OF THE CRIMINAL LAW: HAS THE CONSTITUTIONAL PRINCIPLE BEEN REALIZED?

he variability of the law acts is its characteristic feature. The criminal legislation is not an exclusion. The inevitability of its updating in connection with change of private, social and state interests actualize the problem of retroactive effect of the criminal law. THow often it is debated in courts and parliaments, what acute conflicts are played out on the basis of its practical resolution, how sparse, unspoken, unclear and contradictory are the resolutions of the current legislation, how little coherence in the logical constructions encountered in the field of theoretical processing of the issue465. With these words begin one of the few pre-revolutionary works devoted to the topic under study.

465 Mokrinsky S.P. New law and old guarantees (on the operation of criminal law within time) / / Journal of the Ministry of justice. 1909. # 3. Page 1. 360 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Over the past two centuries, there have not been more than a dozen fundamental works on this issue. Most scientific research is devoted to the study of the history of normative consolidation of temporal aspects of the law, the main principles of such action and the features of giving retroactive effect to the criminal law466. In foreign literature, questions of the operation of the law are of interest only in an applied sense: the validity of the nullum crimen sine lege principle, the temporal aspects of ex post facto law, the analysis of the Nuremberg Tribunal as one of the modern examples of giving retroactive effect to laws that toughen criminal liability467. The problem of the law in time occurs and historically intertwined with the issue of retroactivity or retroactive application of the law, considered in the context of changing laws and role in the process of the legislator and law enforcer (often in one person). In this regard, it is not possible to raise the question of extending its effect to previously occurred events in customary law, since it is formed by accumulating experience and extending the regulatory action to future events, i.e. it is linear in time. The idea of punishability of acts solely in accordance with the current normative legal act is being developed along with legislative activity as such. The action of the law in time becomes the private issue of the political character and acquires the most significance in the criminal process in criminal and civil law, concerning the basic rights and freedoms and the citizen (life, family, property). Approaches to the action of the law in time and its retroactive effect emerged in a Roman law, obtained the philosophical justification in England, and were normatively processed after the revolution in France. The wide geographical scope of this idea was generally based on General postulates. It is noteworthy that at the level of the Constitution, the

466 See: tillet A.A. Time, space, law. The effect of Soviet law in time and space. Moscow, 1965; Blum M.I. Action of the Soviet criminal law in time and space: dis.... d-RA yurid. sciences. Riga, 1975; Boitsov A.I., Volzhenkin B.V. criminal law: action in time and space. SPb., 1993; Popov A.N. criminal law and its reverse force. SPb., 1998; Melnikov M.G. Action of the criminal law in time and space: dis.... Cand. the faculty of law. sciences. Ryazan, 1999; Zhuravleva Em. The effect of Russian criminal law in time. Moscow, 1999; Barkanov A.N. Reverse force of the criminal law: dis.... Cand. the faculty of law. sciences. Saratov, 2000; Erasov a.m. Reverse force of the criminal law: dis.... Cand. the faculty of law. sciences. Moscow, 2004; and others. 467 See: Kenneth S. Gallant. The Principle of Legality in International and Comparative Criminal Law. Cambridge, 2009.; Hall Jerome. Nulla poena sine lege // The Yale Law Journal. 1937. December. Vol. 47. Number 2; Sampford Charles. Retrospectivity and the Rule of Law. Oxford, 2006. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 361 principle of non-retroactivity of laws was formulated for the first time in the United States: “no bill of disgrace or law that has retroactive effect should be adopted” (art. Nine)468. The domestic scientists on the questions of the criminal law action in time didn’t pay special significance, despite the fact, that in the Code of 1550 for the first time in the domestic legislation the norm of the law effect in time, which established that the judicial affairs, which emerged before its issuing, have to resolve on the basis of earlier acting norms and the resolutions of Code spread over only new cases (art. 97)469. The majority of the domestic researches, as P.A. Fayerbach, base on the principles nulla poena sine lege, nulla poena sine crimine, nullum crimen sine poena legali470. It is noteworthy, that the main acсent of the pre-revolutionary scientific works limit to the analysis of the retroactive effect of the criminal law. Following the German scientists, the Russian research workers express the arguments in favor of not giving (giving) it the retroactive effect. Only two works of pre – revolutionary authors - M.P. Chubinsky 471 and A. Gradovsky - are dedicated specifically to the questions of the law’s effect in time472. M. P. Chubinsky points out that the legislation of each country is undergoing a number of changes. Legal norms cannot remain “immobile”, since this can undermine respect for justice and the law, and lead to the appearance of a “dead” norm. At the same time, the state must act very carefully; its task is to “combine the new requirements” of life with the existing order as much as possible. He explained frequent cancellations and changes of criminal laws by the fact that criminal law is the most sensitive and reflects public views on good and evil, on truth and untruth. It is not uncommon for changes to occur in relation to the size of the punishability of acts or the method of implementing punishment under the influence of political passions and

468 The formulating in the Constitution of USA reads as follows: «No Bill of Attainder or ex post facto Law shall be passed». См.: URL: https://www.senate.gov/civics/ constitution_item/con-stitution. htm#a1_sec9 (date of appeal: 22.08.2019). 469 See.: Code of the the sovereign Tsar and Grand Prince Ivan Vasilyevich. Collection / comp. V.N. Tatishchev. Moscow, 1786. Pp. 122-123. 470 See: Feuerbach P.A. Criminal law. SPb., 1810. Pp. 19-20. 471 See: Chubinsky M.P. Reverse action of the criminal law. 472 See: Gradovsky A. On the action of laws in time. Theoretical and historical assessment of Russian legislation on this subject / / Journal of civil and criminal law. 1873. kN. 4. Pp. 1-47. 362 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY other temporary and transient conditions, as well as under the pressure of philosophical thought473. In the pre-revolutionary literature the four approaches to the application of the criminal law in time were processed: 1) the action of the normative act, which was in force at the moment when the crime was committed, with the possible exemption to the mitigation as an exclusion; 2) the action of the normative act, which was in force at the moment of the crime committing, which the possible exemption to the mitigation as a rule; 3) action of the new normative act, excluding the increase of the responsibility; 4) the action of the normative, which was in force at the moment of the crime committing notwithstanding its further changes. Arguing the first approach, Bekker considers the law not only as the guidance for the judge, but as the social prohibition, which acquired the significance by means of promulgation. The application of the stricter law considers to be the primitive arbitrariness of the state, illegal violence, аnd the application of more soft law -not obligatory action, but act of pardon or reduction of the destiny of the convict474. The same opinion was expressed by Gelshner475. Keeping up the similar position, other scientists saw the grounds to giving the retroactive effect to the softer law in the view of mankind (F. List476, L.Е. Vladimirov477), or have defined it as the characteristic feature of the criminal policy (V.V. Esipov478). The application of the stricter law was excluded. In the frames of the second approach L.S. Belogrits - Kotlyarevskiy takes as a basis the interests of the human rights safeguarding interests and legal order maintenance, which can be satisfied by the rule on the retroactive effect of the softer law. Another resolution, in his opinion, was unfair and inappropriate: inappropriate as it would be necessary to subject the criminal to the punishment, that is considered by the legislator himself more strict; inappropriate because the punishability of the crimes according to the old law

473 See: Chubinsky M.P. The Decree. Op. S. 6. 474 Cyte. by: Chubinsky M. p. Edict. Op. P. 9. 475 Cyte. by: Tagantsev N. S. Russian criminal law. Common part. Lectures. SPb., 1902. P. 266. 476 List F. Textbook of criminal law. Common part. Moscow, 1903. P. 96. 477 See: Vladimirov L.E. Textbook of Russian criminal law. Common part. 478 See: Esipov V.V. Essay of Russian criminal law. The General part. Warsaw, 1894. P. 59 REPRESENTATIVES OF THE ACADEMIC COMMUNITY 363 can shatter the political system. The decision in this case is composed of two elements: first -the safeguard of the person’s rights; second – the support of the legal order in the society479. A.F. Berner pointed out, that the law relates only to the future tense. If the deeds of the citizens, allowed at the moment of their committing, could be announced as criminal by the following law, this would negatively reflect on the civil freedom. However, if the state in a new law has not established, that the unknown deeds are not punishable or punishable in a less measure, the legislator may not, if he doesn’t want to enter into contradiction with the own conviction, apply the previous prohibitions. This would be, in his opinion, the violation of the common sense480. The similar justification is given by Vehter481. M.P. Chubinsky paid considerable attention to this problem. He noted that the state’s right to punishment must be based on criminal law, otherwise this right will border on arbitrariness. The power of the state in relation to the criminal must have strictly defined borders, which it has no right to violate. By publishing a law, the state does not enter into a contract with the offender, but declares its will and the consequences of its violation. This shows a unilateral promise on the part of the state, by virtue of which non- prohibited acts should remain unpunished, and prohibited acts should entail the punishment specified in the law that protected the norm violated by the offender at the time of the act. Preventing the retroactive effect of stricter laws, as a guarantee of individual rights from arbitrariness, is based on a legal basis-the promise of the state, expressed in the previous law, not to punish more than the previously established size and term482. The third position practically in whole is similar to the second, the disagreement concerns only the very essence of the criminal law: as the law, that reflects the new cognition and will is being issued, it is necessary to apply this very law (Kestlin, Geyer)483.

479 See: Belegrin-Kotlyarevsky L.S. a Textbook of Russian criminal law. General and special 480 Cyte. by: Tagantsev N.S. Russian criminal law. Common part. Lectures. SPb., 1902. P. 267. 481 Ibid. 482 Chubinsky M.P. The Decree. Op. p. 9. 483 See Tagantsev N.S. The Decree. Op. p. 268–269. 364 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

Drastically differing principle is formulated by Binding and N.S. Tagantsev. Binding indicates, that the criminal law obliges the state to impose the punishment in accordance with the acting law, defining the criminality and punishability of the acts. The reason for the adoption of the new law is the “insufficiency” of the old one and the need to replace it both reducing responsibility and strengthening it. No rights or obligations prevent the law from being retroactive, since the right to punishment is public, i.e. mandatory for all484. N.S. Tagantsev develops these positions, indicating the following: 1) in criminal law lies the center of gravity of the punitive power of the state, which can always punish under the new law, without being limited by the imaginary right to punishment under the law of the time of the crime; 2) only the new law should be applied to the offender, i.e. the legal consequences should be determined on the basis of the new law; 3) the law, when it says that “a person guilty of murder is subject to penal servitude from 10 to 15 years”, applies to everyone the requirement “do not kill”, and not the requirement “do not kill, or this will be followed by penal servitude”; the offender can not, referring to the previous law, demand that a new stricter law won’t be applied to him, he is not in a contractual relationship with the state, but is only a “passive party”; 4) if the criminal law obliges the state not to impose penalties for crimes other than those specified in the current law, it is obvious that the state, from the moment the law enters into force, can only allow the implementation of the threat of a new law, otherwise it conflicts with its own obligations; 5) the decision of the question what consequences should entail the committing of a criminal act belongs entirely to the state; the right of punishment is the right of the state to compulsion, the scope and content of which are determined only at the moment of the imposition of punishment. The scientist identifies only two restrictions for the retroactive effect of the criminal law: first, if the new law establishes the punishability of acts that were not previously punishable, then it can not be applied to such acts. A punitive duty of the state that was not created by this act before the new law appeared cannot arise from the same act by virtue of the new law. Secondly, if a criminal

484 See: Ibid REPRESENTATIVES OF THE ACADEMIC COMMUNITY 365 act is recognized as non - punishable under the new law, then the imposition of punishment becomes impossible. The new law declares the existing punitive policy of the state extinguished485. A.D Gradovskiy, on the one hand, notes, that every fact and every offence can have only those judicial consequences, which are set by the law, acting at the moment of their committing. The new law can not disclose the legal consequences of the actions and in this case it has no retroactive effect»486. On the other hand, it indicates to the essence - conditions, defining the relations of the state towards person. The state can change its own structure and organization without any tightness; the laws, defining the structure of the state bodies, the order of their activity, can produce all the available facts, not calling the necessity of any guarantees from the point of view of the private rights. The person is obliged to subordinate the state will, but this arises the right to foresee, what legal consequences follow the definite actions. The citizen has to be sure that his action entails these very, but not other consequences. The absence of this certainty would render the very existence of the law useless, would destroy the very principle of legality, and would sacrifice the citizen to arbitrary power. In other words, the new law cannot be retroactive if its application may entail unfavorable consequences for the acquired rights and criminal liability of a citizen. On the contrary, the criminal law, which excludes the punishability of acts or commutes punishment, does not establish such consequences for individuals, limits the punitive power of the state, and expands the area of personal freedom. It follows from the said above, that the punitive power of the state has to be legal and just. For the determination of the legitimacy of the punishment the only observations of its inner feasibility, the law-maker can not prescribe the application of the punishment, acknowledged unfair, for its formal legitimacy. In other words, the legislator has to domineer over the external rules of the positive law application for the justice and social benefit487. The presented approaches to the question of the retroactive effect of the criminal law allow us to distinguish arguments based on legal grounds or based

485 See: Tagantsev N.S. Edict. Op. Pp. 2. 486 See: Gradovsky A.D. On the action of laws in time. Theoretical and historical assessment of Rus- sian legislation on this subject. Pp. 1-46. 487 See: Gradovsky A.D. On the action of laws in time. P. 13. 366 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY on political motives (protection of individual rights, maintenance of law and order in society, public benefit, humanity, justice, restriction of state arbitrariness, etc.). If we take into account only legal aspects, more of the criminalists agree with the fact that the offence can have only those legal consequences, which were possible at the moment of the offence committing. The discrepancies emerge in the issue of correlation of interests of the state and separate person. The force of the point of view of one of the mentioned sides of definite historical stages brings to different positions: state at its own discrepancy decides the issues of the retroactive effect, or takes into consideration the interests of the society and person, has no right to worsen their situation. The analysis of pre-revolutionary literature allows to come to conclusion, that the justification of the retroactive effect of the criminal law comes from similar messages – the will of the state. The scientists express the view about the state as a single instance, capable independently define the character of the actions of those or another norms. The withdrawal of the accepted rules is considered to be possible, but the negative consequences of this step for the legislator – the accusation in inconsistency, contradictoriness, unpredictability, that brings to upheaval in society and as a result threatens it. In other words, the setting and observation of the rules are necessary first of all to the state. This view of the priority of the state will probably come from the general idea of criminal law, which is considered by almost all pre-revolutionary lawyers as an imperative state act. For example, P.A. Feuerbach argued that the “punitive” law is valid in itself. Its application cannot depend on a special judgment as to its” propriety or propriety”; it is valid for all cases contained in it. No case that falls within the scope of the criminal law can be excluded from its scope, except for situations that are directly provided for by the criminal law itself488. A.F. Berner noted that the criminal law is the will of the state power expressed in relation to crimes, according to the constituent (constitutional) laws489. N. A. Neklyudov interpreted the criminal law in a broad and narrow sense. In the first case, the criminal law was intended to be understood asany

488 See: Feuerbach P.A. Criminal law. P. 73. 489 See: Berner, A.F., Textbook of criminal law. The parts are General and special. With notes, appen- dices and additions on the history of Russian law and legislation positive N.A. Neklyudova. Vol. 1. Common part. SPb., 1865. P. 775. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 367 legislative decree relating to criminal justice, in the second - a legislative order, the violation or non-execution of which is guaranteed by the punishment provided for by it490. As a fact in the similar way the criminal law is defined by A.F. Kistyakovskiy491. N.S. Tagantsev, formulating the concept of criminal law, also wrote that such a command is recognized, in accordance with the established procedure, coming from the supreme power, which determines criminal responsibility for encroaching on the norms of law492. At the normative level, the provisions on the operation of the criminal law in time appear only in the Criminal code of 1903, which states that the newly issued criminal law is also applied by the court to those committed before the date of entry into force of this law, which were prohibited at the time of their execution. The punishment determined by the newly issued law is commuted if the law in force at the time of the Commission of the act established a more lenient punishment (article 14)493. As you know, this normative legal act has not fully entered into force; this allows us to conclude that the temporal rules of the criminal law have not received a stable law enforcement practice. According to the positions of the pre-revolutionary scientists the sphere of the criminal and punishable relates to the exclusive maintenance of the state, representing the form and source of the law order, at the safeguarding of which the criminal law is aimed. Proceeding from this the operating of the criminal law in time may be: 1) unlimited right of the state, if it is acknowledged appropriate; 2) limited by the will of the state itself, the right consisting in state mercy or forgiveness, the scope of which is determined solely by political goals; 3) the limited right of the state, consolidated at the legislative level because of the expansion of the person’s rights, demanding the predictability and consistency of the state policy. The three presented variants of the application of the criminal - legal means by the state in time also represent the evolutionary stages of retroactive effect rule of the criminal law development. The general idea is the restriction of the

490 See: Nekludov N. And. The General part of the criminal law (abstract). SPb., 1875. P. 170. 491 See: Kistyakovsky A.F. Elementary textbook of General criminal law with a detailed description of the principles of Russian criminal law. The General part. Kiev, 1891. P. 174. 492 See: Tagantsev N.S. Russian criminal law. Lectures. The General part. In 2 t. T. 1. Moscow, 1994. P. 72. 493 See: Criminal code, Highly approved on March 22, 1903, St. Petersburg., 1903. P. 3. 368 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY right of the state to operating the criminal law. The state must perform stabilizing, educational and political functions by changing the criminal law. The first is the protection of public order, the preservation of the hostel, as well as acquired and innate rights; the second is aimed at preventing the committing of new crimes, including through respect for a stable and clear law; the third is to win public support through the application of more lenient laws, showing state mercy, caring for citizens, and demonstrating loyalty to the authorities. Pre-revolutionary scientists didn’t come to a common view relating the volume of the state rights restriction. Four approaches were outlined to the state’s ability to apply (not apply) a more lenient (hard) criminal law. One of their vulnerabilities is that leaving the temporal aspects of the law in the exclusive jurisdiction of the state may well lead to a deviation from the rules. In Soviet times, the view of criminal law, crime and punishment changed somewhat, which was primarily associated with changes in the political system. Criminal law reform becomes a priority task for the authorities, through which they approve new legal and political regimes; ensure their own security and follow their own instructions; minimize sabotage; and deal with their enemies. It is noteworthy that throughout Soviet history, the Constitutions of the USSR (1924, 1936, 1977) and the RSFSR (1918, 1925, 1937, 1978) did not apply the rule of non- retroactive force to laws that establish or strengthen responsibility. The Soviet state solved urgent problems by criminal repression, i.e. the politicization of the punitive policy was obvious. The courts and other punitive bodies were not bound by any rules defining the criminality and punishability of acts, and were guided by a revolutionary conscience and a socialist sense of justice494. Law- making was carried out spontaneously, haphazardly (the state had to manage the current situation quickly, so the first legal acts had a complex character). The normative stipulations were published by different subjects at different levels (the measures of criminal liability were foreseen by central authorities, certain departments and even

494 See: Toskina G.N. Criminal punishment in the legislation of the RSFSR and the USSR (1917-1922). Ulyanovsk, 2005. P. 162. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 369 local authorities)495. The first legal acts didn’t contain the particular indications about the kinds, terms and sizes of the punishment, but solely had references at the necessity of the punishment “to the full penalty of revolutionary law”. In other words, the judicial discretion while choosing the punishment for the particular person was not limited, essentially, by anything, except the “revolutionary conscience and social legal awareness”. By virtue of this concept, neither the tribunals, nor other bodies authorized to impose penalties, were not bound by legal restrictions. “This feature in those years was perceived by some figures of Soviet justice, in particular the employees of the tribunals, as supposedly the essence of Soviet criminal law, which, they believed, would continue to develop without the Criminal Code or, although based on the Criminal Code, but without a definition in him penalties for certain types of crimes”496. The situational criminal- legal regulation was inevitable shortcoming. The new form of the political system and conditioned by its specificity of the system of the social relations couldn’t be regulated by the previous legislation. Time and appropriate practice were demanded for elaborating the new legislation, that is why during the first years of the soviet power in criminal law there was the decretal principle of regulation. The achievements of the science on criminal law of pre-revolutionary period were not acknowledged by new authorities, in particular, this concerned temporal aspects of the criminal law effect. The Criminal Code of RSFSR of 1922 consolidated the position that from the moment it enters into force the actions of all other forms, setting the grounds and size of the criminal punishment shall be ceased; the criminal Code is applied towards all the crimes, which were not considered by court before it entered into force497. The Code didn’t establish the rules of the retroactive effect of the criminal law, it didn’t contain the requirements on the principles of the action of the law in time at all. There was one clause -it was applied towards all the offences, which were not considered by the court

495 For more information, see: Toskina G.N. Formation and development of the system of punish- ments in the criminal law of Russia and the USSR in 1917-1926: autoref. Cand. the faculty of law sciences. Moscow, 2005. 496 See: Gartenzaun A.A. Criminal law and sociology. Moscow, 1970. P. 216. 497 See: Resolution of the Central Executive Committee of June 1, 1922 “on the introduction of the Criminal Code of the RSFSR (together with the Criminal Code of the RSFSR) / / SU RSFSR. 1922. # 15. Article 153. 370 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY before it entered into force (art. 23). The situation definitely changes in connection with the publication of the resolution of GCEC of November 22, 1926 «On enacting the Criminal code of RSFSR of 1926 year edition”, which established that in cases in which the convicted person is defined a measure of social protection that exceeds the maximum limit established for this crime by the new Code, the term of the social protection measure is reduced to the highest limit set by the new Code for this crime, or the social protection measure is replaced with a less severe one (art3)498. The text of the criminal code itself does not contain temporal norms. As follows from this regulation, mitigation of punishment could only be applied to persons already sentenced to certain social protection measures (punishment), in all other cases, only the new criminal code was applied. A different position of the legislator reflected in the criminal procedure code of the RSFSR in 1922, the criminality and punishability of the acts were asked to identify the criminal law in force at the time of the crime; laws, eliminates criminality of the offense or mitigating his punishment, was given retroactive force (article 2)499. For the first time in the Soviet period, the rule on the operation ofthe law in time appears only in the criminal code of the RSFSR in 1960, which established that the crime and punishability of an act are determined by the law in force at the time of the Commission of this act. A law that eliminates the punishability of an act or commuting a sentence has retroactive effect, i.e. it also applies to acts committed before its publication. The law establishing the punishability of an act or increasing the punishment has no retroactive effect (art. 6)500. This became logical development of the positions of the Basis of criminal legislation of USSR and union republics of 1958 (art. 6)501.

498 See: Resolution of the Central Executive Committee of November 22, 1926 “on the introduction of the Criminal code of the RSFSR edition of 1926” (together with the Criminal code of the RSFSR) // SU RSFSR. 192 499 See: Resolution of the Central Executive Committee of May 25, 1922 “on the Criminal procedure code” (together with the Criminal procedure code of the RSFSR) / / SU RSFSR. 1922. # 20-21. St. 230. 500 See: The criminal code of the Russian Federation // Bulletin of the RSFSR Supreme Soviet. 1960. # 40. St. 591. 501 See: The law of the USSR of December 25, 1958 “ on approving the Bases of criminal legislation of the USSR and the Union republics” / / Vedomosti VS SSSR. 1958. # 1. Article 6. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 371

The views of the theoretical scientists in the soviet epoch also have changed, although, in whole, its characteristics were restored. There are a few special researches, devoted to this problem. In particular, M.D. Shargorodskiy indicate that the soviet criminal law – this is accepted by the Supreme Council of USSR act, expressing the common will of the working people and containing the main norms, regulating the safeguarding of the socialistic state from crimes by means of application of the punishment towards the condemned502. The scientist notes that the foreign science of criminal law, analyzing the issues of the theory of criminal law, seeks to present them as purely dogmatic, devoid of any political content and thus hide the political significance that lies behind the dogmatic analysis of the most important issues of the theory of criminal law. Issues related to the problem of criminal law have always been and are now issues of great political importance. The protection of the most important interests of the ruling class is expressed in the norms of the criminal law. The problem of criminal law is connected with such acute and politically important issues as the question of the retroactive effect of the criminal law, the analogy, and the extradition of persons who have committed a crime. In the same vein, N.D. Durmanov argues about the politically significant role of criminal law, noting that the Soviet criminal law is one of the important tools of the Soviet state for combating socially dangerous encroachments; in particular, its role in preventing crimes is significant503. M.D. Shargorodsky criticized the bourgeois countries and the fascist regime of Germany for deviating from the democratic principle of non-retroactivity of the criminal law, but pointed out that in some cases the domestic legislator gave the laws that strengthened the punishment retroactive force. Examples are the decree of the CPC (Council of people’s commissioners) of the RSFSR of May 8, 1918504 and the decree of the Central Executive Committee of October 19, 1928505 . According to the decree of the Presidium of the CEC

502 See: Shargorodsky M.D. criminal law. Moscow, 1948. P. 30. 503 See: Durmanov N.D. Soviet criminal law. Moscow, 1967. P. 3. 504 See: URL: http://www.libussr.ru/doc_ussr/ussr_39.htm (accessed: 20.08.2018). 505 See: Decree of the VTSIK of October 19, 1922 “on giving retroactive effect to articles 114 and 114-a of the Criminal code”. URL: http://www.libussr.ru/doc_ussr/ussr_1422.htm (date accessed: 20.08.2018). 372 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY of the USSR of November 21, 1929, persons who refused to return to the USSR were outlawed. This entailed: a) the confiscation of all the property of the convicted person; b) the execution of the convicted person by shooting 24 hours after his identity was verified506. Resolution of CEC of USSR, СPC USSR of June 1, 1927 stipulated that the laws and orders of CEC of the Union of SSR, its Presidium, CLD (Council of labour and defence), which are in whole and in part objectively unworkable without issue of stipulated by them and detailing resolutions, are put into practice as a whole or in the corresponding part after enacting the mentioned concretizing and detailing norms (art. 2)507. From this it followed that the objective of workable guidelines could be implemented without a corresponding implementation in the Federal laws. So, in relation to A.A. Kuznetsov, N.A. Voznesensky, M.I. Rodionov, P.S. Popkov, and others after their arrest in 1949, the death penalty was applied, introduced by the decree of the Presidium of the Supreme Soviet of the USSR on January 12, 1950508. This clause has been excluded by the Decree of the Presidium of the Supreme Council of USSR of June19, 1958509, however, the issues of appointment of the criminal-legal measures, established by the decrees of the Presidium of USSR in the part of giving them retroactive force, remained unsolved. In this connection the most popularity was acquired the Decree of the Presidium of July 1, 1962, applied to the crimes, committed before its was issued510.

506 See: Resolution of the Presidium of the CEC of the USSR of November 21, 1929 “on the outlaw- ing of officials-citizens of the USSR abroad who defected to the camp of enemies of the working class and peasantry and refuse to return to the USSR” // Sz USSR. 1929. # 76. Article 732. 507 See: Resolution of the CEC of the USSR, SNK of the USSR of June 1, 1927 “on supplementing the resolution of the Central Executive Committee and Council of People’s Commissars of the USSR of February 6, 1925 on the time of entry into force of laws and orders of the government of the USSR, as well as orders of departments of the USSR”. 1927. # 32. Article 326. 508 See: The decree of the Presidium of the USSR Supreme Soviet from January 12, 1950, “On the applica- tion of the death penalty to traitors, spies, demolition men- to saboteurs” // Vedomosti of the USSR Supreme Soviet. 1950. # 3. 509 See: The decree of the Presidium of the USSR Supreme Soviet dated June 19, 1958, “On the procedure of publication and entry into force of the laws of the USSR, decrees of the USSR Supreme Soviet, decrees and resolutions of the Presidium of the Supreme Soviet of the USSR” // Vedomosti of the USSR Supreme Soviet. 1958. # 14. Article 275. 510 See: The Decree of the Presidium SC of the URRS of 1 July 1961 «On increase of the criminal liability for the rules on the currency operations // Records of the USSR armed forces. 1961. # 27. Article 291. In this case, we are talking about the case of Rokotov, Faibishenko and Yakovlev – a trial in the USSR in 1961 on charges that were sentenced to death for illegal currency transactions. REPRESENTATIVES OF THE ACADEMIC COMMUNITY 373

The analogical resolution of the temporal issues of the criminal law in action were regulated in the Decrees of the Presidium of the Supreme Council of USSR of May 5, 1961511, February 15512 and February 20, 1962513, October 21, 1963514, July 26, 1966 515, October 1, 1971516 and others. The Decrees of the Presidium of the Supreme Council of the USSR, issued for the interpretation of the criminal law, had a retroactive force, because they were not considered as the new criminal laws. Thus, with the presence of the special circumstances and political will the Soviet state retreated of the rule of unassigning the retroactive force to strict laws. The theoretical problems of the law in time were elaborated by А.А. Tille, who hold the investigations in 60-70th XX. He pointed out three theories of the law action in time: “the statuary”, “the obtained rights”, and “the transitional situation”. It is necessary to mention, that the last referred to the civil-legal argues. In the mentioned theories the basis of application (not application) of the laws to the obtained civil rights are defined, what has indirect relation to the criminal law. There is also no single criterion for the selection of theories: in the first case, the Foundation put the Commission (the failing) of the act, i.e., the justification is in the implementation of regulations; in the second case, the centre shall have political and legal guarantees of preservation of certain rights; the third section focuses on the comparability of norms and resolving the conflicts.

511 See: Decree of the Presidium of the armed forces of the USSR of may 5, 1961 “on strengthening the fight against particularly dangerous crimes” // Records of the armed forces of the USSR. 1961. # 19. Article 207. 512 See: Decree of the Presidium of the Supreme Soviet of the USSR of February 15, 1962 “on strengthening criminal liability for rape” / / Records of the Supreme Soviet of the USSR. 1962. No. 8. Article 84. 513 See: Decree of the Presidium of the Supreme Soviet of the USSR of February 20, 1962 “on strengthening criminal liability for bribery” // Vedomosti of the Supreme Soviet of the USSR. 1962. No. 8. St. 85. 514 See: Decree of the Presidium of the Supreme Soviet of the USSR of October 21, 1963 No. 1797- VI “on strengthening criminal liability for unauthorized unnecessary train stop” / / Records of the Supreme Soviet of the USSR. 1963. # 43. Article 446. 515 See: Decree of the Presidium of the Supreme Soviet of the USSR of July 26, 1966 No. 5362-VI “on strengthening responsibility for hooliganism” // Vedomosti of the Supreme Soviet of the USSR. 1966. # 30. St. 595. 516 See: Decree of the Presidium of the Supreme Soviet of the USSR of October 1, 1971 No. 2184- VIII “on strengthening responsibility for the spread of venereal diseases” / / Vedomosti of the Su- preme Soviet of the U. 374 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

This emphasizes the multifaceted nature of the problem. The theoretical scientists of the criminal law, devoting the works to the retroactive force of the law, accentuate the attention on the separate principles, laying in the basis of this rule, in doing so, one principle is inferred from another. The analysis of the evolution of the rules on the retroactive force of the criminal laws emerges simultaneously with the establishment of the law as a main regulator of the relations in society. The first attempts to substantiate the temporal orientation of the criminal law reveal the political nature of this issue, since initially they are reduced to stating the possibility of arbitrary operation of the law at the discretion of the legislator. In detail and systematically, the question of the retroactive effect of laws was developed in the domestic science of criminal law, which borrowed the experience of German scientists. Despite the different ideological attitudes of pre-revolutionary and Soviet scientists, their views on the essence of the retroactive power of criminal law coincided: being the will of the state (the ruling class), the operation of criminal law in time is subject mainly to the solution of political problems, even though certain rules are fixed in the law. The establishment of these rules is the result of the introduction of the principles of humanity, justice and legality in criminal law. However, throughout history, they were leveled by other legal instruments (edicts, dispensations, decrees and decrees), in respect of which the order of temporal regulation was not fixed. The modern Constitution of the Russian Federation has established a rule according to which the law establishing or aggravating liability has no retroactive effect; no one can be held responsible for an act that was not recognized as an offense at the time of its committing. If, after the committing of an offence, the responsibility for it is eliminated or mitigated, the new law is applied (article 54). This principle first appeared in the Basic law of Russia, which did not eliminate some controversial points. In modern conditions the most complicated remains the problem of the retroactive force of the so-called blanket legislation. Discussions on this issue have long been conducted in the theory of law. I.V. Shishko argues that REPRESENTATIVES OF THE ACADEMIC COMMUNITY 375 the rules, duties and prohibitions, for violation of which criminal liability is provided, can be provided not only by Federal, but also by regional and even local regulations. Reflection of features that affect the qualification of crimes in the Federal, regional, municipal and carried out by individual economic entities regulation of economic relations is an additional function of the blanket rules of Chapter 22 of the criminal code of the Russian Federation517. Such an expansion of the sources of the criminal legislation non the less doesn’t bring to spread of the rules of the retroactive force on them: the position of the retroactive force of the criminal law is inapplicable to regulatory norms due to difference of their juridical sectorial regimes. If the new normative act of the regulative sector, excluding the ban and taking off the responsibility, is not given the retroactive effect, there are no reasons to consider the committed in past violation of this ban (responsibility) not unlawful, and under the described in the blanket norm of the Criminal Code conditions – not criminal. The exclusion are the cases when the action had no or lost another compulsory sign of the crime -the social danger518. This approach was criticized by B.V. Volzhenkin. He noted that when the provisions of a regulatory norm have become part (element) of a criminal law norm by virtue of a blank statement of the article’s disposition, then the amendments made to this regulatory norm simultaneously become changes in the criminal law norm that entail an expansion or narrowing of the criminal circle, the scope of criminal responsibility, partial decriminalization or criminalization. As a result of amendments the criminal law obtains another contents, and if it implies the exclusion of the criminality of the action, then this criminal law has a retroactive effect. In such cases we speak of the retroactive effect of the criminal, but not regulative law519. At present the contents of the criminal - legal norm, formed on the type of blanket, can be understood by appealing to: a) Constitution of the Russian Federation and international treaties of Russia; b) to normative legal acts of other

517 See: Shishko I.V. Economic offenses: questions of legal assessment and responsibility. SPb., 2004. Pp. 68-87. 518 See: Shishko I.V. Decree. Op. P. 301. 519 See: Volzhenkin B.V. on the content of blank dispositions of articles on economic crimes in the criminal code of the Russian Federation (for discussion with I. V. Shishko) / / Actual problems of legal liability for violations in the sphere of economic activity and taxation. Yaroslavl, 2004. Pp. 21-25. 376 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY sectors of law, for example, to different types of the rules and requirements: occupation safety, fire safety, production of certain works, road traffic, etc.; b) to the resolutions of the Government of the Russian Federation. The rules for the temporal operation of such criminal law norms are reflected in the Ruling of the Constitutional Court of the Russian Federation No.270-O of July 10, 2003, according to which decriminalization of certain acts can be carried out not only by making appropriate changes to the criminal law, but also by canceling normative prescriptions of other industry affiliation520. This position is approved in the Resolution of the Plenum of the Supreme Court of Russian Federation of November 18, 2004 № 23 «On judicial practice on the cases of illegal entrepreneurship”, which states: if the Federal legislation from the list of activities, the implementation of which is allowed only on the basis of special permission (license), eliminated the activity, the actions of the person engaged in such business, there is no corpus delicti, foreseen by article 171 of the criminal code (p. 17)521. One of the variants of the resolution of the similar problem could be the adoption of the Federal law “On the normative legal acts in Russian Federation”, consolidating the following positions: the normative legal act do not extend to the relations, which emerged before it entered into force, i.e. has no retroactive force, except the cases, when the act itself or the normative act, approving it is stipulated, that it extends to the relations, that have appeared before it was enacted. The normative-legal acts (their provisions), setting or tightening the responsibility for the felonies or in other way aggravating the position of the individual, who has committed the felony have no retroactive effect522. The experience of regulation of the normative legal acts effect in time in the Republic of Belarus, stipulating the analogic positions523.

520 See: The definition of the Constitutional Court of the Russian Federation of June 10 2003 №270- О «On refusal to accept for consideration the request of the Kurgan city court of the Kurgan region to check the constitutionality of part one of article 3, article 10 of the Criminal code of the Russian Federation and paragraph 13 of article 397 of the Criminal procedure code of the Russian Federa- tion” / / SPS “ConsultantPlus”. 521 See: resolution of the Plenum of the Supreme Court of the Russian Federation No. 23 of Novem- ber 18, 2004 “On judicial practice in cases of illegal entrepreneurship” / / SPS “Consultant Plus”. 522 See: Draft Federal law “on normative legal acts in the Russian Federation “ (prepared by the Ministry of justice of the Russian Federation) (not submitted to the State Duma of the Russian Fed- eration, text as of December 26, 2014) // SPS “ConsultantPlus”. 523 See: Law of the Republic of Belarus of July 17, 2018 No. 130-Z “on normative legal acts” (article 66) [Electronic resource]. Mode of access: http://pravo.by/document/ ?guid=12551&p0=H118001 30&p1=1&p5=0 (accessed: 20.05.2019). REPRESENTATIVES OF THE ACADEMIC COMMUNITY 377

In the juridical literature such an approach is in whole supported524. The other possible and more realistic variant of overcoming of the revealed gap is the addition of the article 10 of the Criminal Code of the RF by part 3, detailing the approaches to the retroactive effect of the criminal law. Article 10. “The retroactive effect of the criminal law” 3. The requirements of the given article of the present Code extend to the norms, to which refer the dispositions the criminal - legal norms, formed as a blanket.

Annotation. The article is devoted to the analysis of one of the key rules of operating with the law in time – the possibility of giving it a retroactive effect. The evolution of legislative approaches allows us to state that the establishment of rules for the operation of criminal law in time can be: a) an unlimited right of the state, if it is deemed appropriate; b) a right limited by the will of the state itself, consisting in state favor or forgiveness, the scope of which is determined solely by political goals; C) the limited right of the state, enshrined at the legislative level, in view of the expansion of the rights of the individual, requiring predictability and consistency of state policy. While the Constitution of the RSFSR and the USSR did not set appropriate rules, and political grounds-retroactivity of the criminal law recognized domestic pre-revolutionary and Soviet scientists, which led to the assumption of the ability to overcome the prohibition of a turn for the worse in other legal instruments in respect of which the fine temporal regulation is not fixed. At the present stage, the problem of retroactive force of criminal law norms with dispositions formed by the type of blanket forms is not resolved. In the context of rapid updating of legislation, as well as changes in the nature and scope of criminal repression, this issue should be reflected in the criminal law. Clue words. The retroactive effect, the effect of the law through time, the strengthening of the responsibility, criminal policy, time and law, the history of legislation.

524 For more information, see: Gusev A.V. Improving departmental regulation of the implementation of international obligations of the Russian Federation in the system of the Ministry of internal Affairs of Russia // Russian legal journal. 2017. # 5. P. 64-76; Popova N. F. Influence of simplification of legislation on improving the efficiency and quality of public administration / / Administrative law and process. 2018. # 1. P. 22-25; On the draft Federal law “On normative legal acts in the Russian Federation” / / Journal of Russian law. 2013. # 3. Pp. 84-100; and others.

CONTENT

INTRODUCTION...... 4

I. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS...... 7

Lord WOOLF - Chairman of the Court of the «Astana» International Financial Center WHEN INTRODUCING CONSTITUTIONAL CHANGE RECOGNISING THE NEED TO CATER FOR COMPLYING WITH THE RULE OF LAW...... 8

Walter SCHWIMMER - Secretary General of the Council of Europe (1999-2004), Deputy Chairman of the Dialogue of Civilizations Research Institute, Consultant on International Relations and European Affairs, Doctor of law 25TH ANNIVERSARY OF THE CONSTITUTION OF KAZAKHSTAN – SHOWING THE WAY TO A STRONG AND PLURALISTIC DEMOCRACY...... 13

Aslan ABASHIDZE - Member of the United Nations Committee on Economic, Social and Cultural Rights, Head of the Department of international law of the Law Institute of the Peoples’ Friendship University of Russia, Doctor of Law, professor, Honored lawyer of the Russian Federation THE REPUBLIC OF KAZAKHSTAN IS AN EXAMPLE OF PROGRESSIVE SUCCESSFUL DEVELOPMENT IN DOMESTIC AND FOREIGN POLICY...... 16

George PAPUASHVILI - Chairman of the Constitutional Court of Georgia (2006-2016), International adviser, professor THE RULE OF LAW REFORMS IN THE REPUBLIC OF KAZAKHSTAN AS A CORNERSTONE OF MODERN CONSTITUTIONAL STATE...... 22

Mikhail MITYUKOV - Plenipotentiary representative of the President of the Russian Federation to the Constitutional Court of the Russian Federation (1996-2005), professor, Honored lawyer of Russia FORERUNNER OF THE CONSTITUTIONAL JUSTICE ON THE POST-SOVIET SPACE: TO THE HISTORIOGRAPHY OF THE COMMITTEE OF THE CONSTITUTIONAL SUPERVISION OF THE USSR (1988-1991)...... 35 Joerg PUDELKA - Head of the representative office of the German Society for International Cooperation (GIZ) in Kazakhstan, judge, Berlin (Germany) THE REALIZATION OF THE PRINCIPLE OF THE LEGAL STATE IN THE SPHERE OF THE ADMINISTRATIVE LAW...... 80

Michael BLAIR - Chairman of the Legal Advisory Board of the «Astana» International Financial Center, Queen’s сounsel (UK) THE «ASTANA» INTERNATIONAL FINANCIAL CENTRE: A SPECIAL LEGAL CHILD OF THE CONSTITUTION...... 92

II. LEADERS OF CONSTITUTIONAL REVIEW BODIES...... 113

Farhad ABDULLAYEV - Chairman of the Constitutional Court of the Republic of Azerbaijan, Doctor of law CONSTITUTIONALISM IN THE REPUBLIC OF KAZAKHSTAN: SPECIFICITY OF FORMATION AND EVOLUTION...... 114

Zühtü ARSLAN - Chairman of the Constitutional Court of the Republic of Turkey FREEDOM OF EXPRESSION, DEMOCRACY AND CHALLENGES...... 122

Boris VELCHEV - Chairman of the Constitutional Court of the Republic of Bulgaria, Doctor of law, professor CONSTITUTIONAL FOUNDATIONS OF CRIMINAL LAW OF THE REPUBLIC OF KAZAKHSTAN...... 131

Valery ZORKIN - Chairman of the Constitutional Court of the Russian Federation, Doctor of law, professor CONSTITUTIONAL IDENTITY IN CONJUGATION WITH THE NATIONAL AND STATE-TO-STATE LAW ORDERS...... 138

Petr MIKLASHEVICH - Chairman of the Constitutional Court of the Republic of Belarus, Honored Lawyer of the Republic of Belarus AFFIRMATION OF MODERN CONSTITUTIONALISM...... 159

Tamás SULYOK - Chairman of the Constitutional Court of the Republic of Hungary Gergely DELI - Senior advisor of the Constitutional Court of the Republic of Hungary SOVEREIGNTY IN THE JURISDICTION OF THE HUNGARIAN CONSTITUTIONAL COURT...... 168

Namseok YOO - President of the Constitutional Court of the Republic of Korea, Master of Law from the National University of Seoul CONSTITUTIONAL ADJUDICATORY INSTITUTION’S INFLUENCE OVER INTERPRETATION AND REALIZATION OF THE CONSTITUTION – CENTERING ON THE CONSTITUTIONAL COURT OF KOREA’S EXPERIENCE OF THE PAST THIRTY-ONE YEARS...... 174 Bakhtiyar MIRBABAYEV - Chairman of the Constitutional Court of the Republic of Uzbekistan, Candidate of Legal Sciences, Associate professor COMMON AND SPECIAL FEATURES IN THE CONSTITUTIONAL AND LEGAL STATUS OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN AND OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF UZBEKISTAN...... 186

Karim KARIMZODA - Deputy Chairman of the Constitutional Court of the Republic of Tajikistan, Candidate of Political Sciences CONSTITUTIONALISM - BASIS FOR THE DEVELOPMENT OF MODERN POLITICAL PROCESSES IN TAJIKISTAN...... 197

Erkinbek MAMYROV - Chairman of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic (2016-2019), Honoured lawyer of the Kyrgyz Republic CONSTITUTION-THE BASIS OF MODERNIZATION OF SOCIETY AND STATE...... 209

Farkhat HUSNUTDINOV – Chairman of the Constitutional Court of the Republic of Tatarstan THE INFLUENCE OF THE CONSTITUTION OF THE REPUBLIC OF TATARSTAN UPON FORMATION AND DEVELOPMENT OF THE MODERN SOCIETY...... 217

III. REPRESENTATIVES OF THE ACADEMIC COMMUNITY...... 227

Suren AVAKYAN - Head of the Department of Constitutional and Municipal Law of the Faculty of Law of the Moscow State University named M.V. Lomonosov, Doctor of law, professor, Honored worker of science of the Russian Federation, Honored lawyer of the Russian Federation ROLE OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN IN THE FORMATION AND DEVELOPMENT OF MODERN CONSTITUTIONALISM: SUCCESSFUL COMMONWEALTH OF NORMS AND REALITY...... 228

Lidiya NUDNENKO - Professor of the Academy of the people’s economy and state under the President of the Russian Federation, Doctor of law, professor, Honored worker of the Highest Professional School of the Russian Federation THE CONSTITUTIONAL PRINCIPLES OF THE STATUS OF THE INDIVIDUAL IN THE REPUBLIC OF KAZAKHSTAN...... 236

Ludmila THABISIMOVA - Deputy Director on Science, professor of the Department of constitutional and municipal law of the Institute of Law of the Federal State funded Educational Institution of Higher Professional Education «Pyatigorsk State University», Doctor of Law SOME ASPECTS OF THE CONCEPT OF JUDICIAL PROTECTION OF THE RIGHTS AND FREEDOMS OF CITIZENS IN THE CONSTITUTIONAL PROCEEDINGS OF RUSSIAN FEDERATION AND THE REPUBLIC OF KAZAKHSTAN...... 246 Jacek ZALESNY - Faculty of Political Science and International Studies at the University of Warsaw, Doctor of Law THE PRESIDENT OF THE REPUBLIC OF KAZAKHSTAN AS A GUARANTOR OF CONTINUITY OF STATE POWER...... 255

Igor OSTAPOVICH - Professor of the Department of constitutional law of the Ural State Law University, Doctor of law SPECIALIZED CONSTITUTIONAL CONTROL IN KAZAKHSTAN: FROM ORIGINS TO MODERN REALITIES...... 264

Maria LIPCHANSKAYA - Head of the Department of constitutional law Saratov State Law Academy, Doctor of law, professor CULTURAL RIGHTS OF CITIZENS IN RUSSIAN FEDERATION AND THE REPUBLIC OF KAZAKHSTAN: CONSTITUTIONAL DIMENSION...... 286

Alisa SHALAMOVA - Head of the Department of state and legal disciplines East Siberian Institute of the Ministry of Internal Affairs of Russian Federation, candidate of law, Associate professor Oleg GRIBUNOV - Deputy Head of the East Siberian Institute of the Ministry of Internal Affairs of Russian Federation, Doctor of law, professor IMPROVEMENT OF LEGAL REGULATION OF BUSINESS ACTIVITY AND SOCIAL SPHERE AS A WAY TO APPROVAL SOCIAL STATEHOOD IN THE REPUBLIC OF KAZAKHSTAN...... 297

Ulyana FILATOVA - Professor of the Department of civil law of the Law Institute of Irkutsk State University, Doctor of law THE STATE’S SOCIAL MISSION: THE TRENDS OF DEVELOPMENT AND IMPLEMENTATIONAL FEATURES IN RUSSIA AND THE REPUBLIC OF KAZAKHSTAN..... 308

Yelena GRACHEVA - First vice-rector, Head of the financial law Department of the O.E. Kutafin Moscow State Law University, Doctor of law, professor THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN ON THE ISSUES OF FINANCIAL LAW AS A FACTOR OF THE MODERN SOCIETY DEVELOPMENT...... 319

Marcos Augusto MALISKA - Professor of the Postgraduate Program in Fundamental Rights and Democracy, Master and Doctorate at the UniBrasil – University Center in Curitiba, Federal Prosecutor, Brazil THE RIGHT TO EDUCATION IN THE CONSTITUTION OF KAZAKHSTAN...... 325

Gennady CHEBOTAREV - Deputy Chairman of the International Union of Lawyers, Head of the Department of constitutional and municipal law of the Institute of State and Law of Tyumen State University, Doctor of law, professor, Honored lawyer of the Russian Federation THE CONSTITUTIONALIZATION OF THE PUBLIC PARTICIPATION OF THE CITIZENS IN THE STATE AFFAIRS’ MANAGEMENT...... 331 Yuri DUK - Associate professor of the Yelets State University named after I.A. Bunin, academician of the International Slavic Academy, Candidate of legal Sciences CONSTITUTION – ITS MEANING IN THE STRUGGLE WITH THE REGIONAL CRIMINALITY...... 339

Sreto NOGO - Professor of Megatrend University, Serbia, Doctor of law INALIENABLE HUMAN RIGHTS IN THE REPUBLIC OF SERBIA...... 350

Yulia GRACHEVA – Professor of the Department of criminal law of the O.E. Kutafin Moscow State Law University, Doctor of law Alexander KOROBEEV – Head of the Department of criminal law and criminology of the Law school of the Far Eastern Federal University, Doctor of law, professor, Honored worker of science of the Russian Federation Sergey MALIKOV - senior lecturer, Department of criminal law, O.E. Kutafin Moscow State Law University, Candidate of legal sciences Alexander CHUCHAEV - Professor of the Department of criminal law of the O.E. Kutafin Moscow State Law University, Doctor of law, professor THE RETROACTIVE EFFECT OF THE CRIMINAL LAW: HAS THE CONSTITUTIONAL PRINCIPLE BEEN REALIZED?...... 359 KAZAKHSTAN WAY: CONSTITUTIONALISM, PERSON, PEACE AND PROSPERITY

WORKED ON THE BOOK: Editorial board: V. Malinovsky - Member of the Constitutional Council of the Republic of Kazakhstan

Staff of the Constitutional Council of the Republic of Kazakhstan: B. Nurmukhanov, N. Maripova, A. Mukusheva, T. Mushanov.

Publisher: LLP Delovoi Mir Astana

It is signed in the press on 04/24/20. Format 70x100 / 16 Headset «News Gothic BT». Conv. L.P. 30.8. Circulation 500 copies.

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