KAZAKHSTAN TREND from Totalitarianism to Democratic and Legal State

Home , 2013 in Kazakhstan, Congress of Deputies, Emilio Attard Alonso, Natalia Zarudna

Astana, 2015 ББК 63.3(5Ка)я6 С 82

Kazakhstan trend: from Totalitarianism to Democratic and Legal State (View from the Outside) / Collection of articles. Executive editor and author of the introduction Doctor of Law, professor, Honored worker of the Republic of Kazakhstan I.I. Rogov, Astana, 2015. – 234 p.

ISBN 9965-27-571-8

ББК 63.3(5Ка)я6

Constitution of the Republic of Kazakhstan, drafted on the initiative and under the direct supervision of the President of the Republic of Kazakhstan – Leader of the Nation N.A. Nazarbayev, adopted on the nationwide referendum on 30 August 1995, has become a stable political and legal foundation of the state and society, dialectical combination of the best achievements of the world constitutional idea with Kazakhstan values, of the formation of unified constitutional and legal policy and practice, of gradual assertion of real constitutionalism. This publication includes articles, reflecting the opinions of foreign experts on the significance of the Constitution of the Republic of Kazakhstan in the deep and comprehensive reformation of Kazakhstan, its transformation into a modern, strong, successful and prosperous state. The collection also includes analytical comparative materials on the experience of Kazakhstani law and state institutions in comparison with similar branches and institutions of other countries. Among the authors are the representatives of authoritative international organizations, famous politicians, heads of state agencies, world-known scientists from various fields of human knowledge. Publication is interesting and useful for politicians, legislators and law enforcers, academics and wide audience.

ISBN 9965-27-571-8 © Constitutional Council of the Republic of Kazakhstan, 2015 CONTENT

INTRODUCTION...... 8

I. PUBLIC FIGURES AND REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS

Gianni Buquicchio – President of the European Commission for Democracy through Law of the Council of Europe (Venice Commission) ...... 10

Gagik HARUTYUNYAN – Member of the Bureau of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), Chairman of the Constitutional Court of the Republic of Armenia, chairman of the Conference of Constitutional Control Organs of the Countries of new democracy, Doctor of Law, professor AXIOLOGICAL FEATURES OF THE TRANSFORMATIONAL CONSTITUTIONALISM IN KAZAKHSTAN ...... 12

Tony BLAIR – Prime Minister of the United Kingdom (1997- 2007) Rule of Law – At the heart of Kazakhstan’s ambitions ...... 16

Jacques ATTALI – expert of the Expert Advisory Board under the President of the Republic of Kazakhstan on the draft of the new Constitution of the Republic of Kazakhstan (1995), ex-advisor of the State Council of France, Professor of Economics The two pillars for a vibrant future OF Kazakhstan...... 18

Yury SOLOZOBOV – Director of International Programs of the Institute of National Strategy of the Russian Federation, political analyst WAY OF KAZAKHSTAN: FROM THE SOVIET TOTALITARIANISM TO DEMOCRATIC AND LEGAL STATE ...... 20

Evgeni TANCHEV – Vice-President of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), Head of the Chair of Constitutional Law Sofia and New Bulgarian University School of Law, President of Constitutional Court of Bulgaria (2009 - 2012) Sovereignty and Legal Compliance within Multilevel State and Non State Unions ...... 25

Taliya KHABRIEVA – Member of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Vice-President of the Russian Academy of Sciences, Doctor of Law, professor CONSTITUTIONALIZATION OF THE LEGISLATION OF the republic of KAZAKHSTAN ...... 38

Aslan ABASHIDZE – Member of the UN Committee on Economic, Social and Cultural Rights, chairman of the International Law Commission of the United Nations Association of Russia, head of the International Law Institute of the Russian Peoples’ Friendship University, Doctor of Law, professor CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN AND INTERNATIONAL COOPERATION OF THE STATE IN THE FIELD OF HUMAN RIGHTS PROTECTION...... 45

3 Alexei AVTONOMOV – member of UN Committee on the Elimination of Racial Discrimination (its chairman in 2012-2014), personal envoy of the OSCE Chairman-in-Office on the struggle with racism, xenophobia and discrimination, chief editor of the Journal «The State and the Law», Se- nior Researcher of the Institute of State and Law of the Russian Academy of Sciences, Doctor of Law, professor CONSTITUTIONAL FOUNDATIONS OF LEGAL POLICY IN THE REPUBLIC OF KAZAKHSTAN (TO THE 20th ANNIVERSARY OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN) ...... 51

George Krol – Ambassador of the United States of America to Kazakhstan ...... 55

Natalia ZARUDNA – head of the OSCE Programme Office in Astana COOPERATION OF THE OSCE AND KAZAKHSTAN IN THE CONTEXT OF THE DEVELOPMENT OF MECHANISMS OF CONSTITUTIONAL CONTROL AND LEGAL REFORMS PERFORMANCE ...... 57

Riccardo MIGLIORI – Honored chairman of the OSCE Parliamentary Assembly ...... 61

Gunars KUTRIS – Substitute member of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), Deputy Secretary of the Presidium of the Saeima of the Republic of Latvia, President of the Constitutional Court of the Republic of Latvia (2007-2014) The Role of the Constitutional Council in the Development of Democracy and the Rule of Law...... 62

Margaret SKOK – Distinguished Senior Fellow at the Carleton University, the Norman Paterson School of International Affairs, Canada’s Ambassador to the Republic of Kazakhstan, with concurrent accreditation to the Kyrgyz Republic and to the Republic of Tajikistan (2006-2009) Kazakhstan – A Vision: Mostly Uninterrupted Comments by Margaret Skok ...... 66

Petko GANCHEV – Chairman of the Geopolitical center Eurasia- Sofia, the Ambassador of the Republic of Bulgaria to the Republic of Belarus (2005 - 2009), Doctor of Philosophy and Political Science, professor ON THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN ...... 68

Andrey TREBKOV – Chairman of the International Union of Lawyers...... 70

Zakhari ZAKHARIEV – Chairman of the Federation of Friendship with the Peoples of Russia and the CIS, professor (Republic of Bulgaria)...... 73

II. LEADERS OF CONSTITUTIONAL COURTS AND OTHER STATE AGENCIES

Farhad ABDULLAYEV – Chairman of the Constitutional Court of the Azerbaijan Republic, Doctor of Law KAZAKHSTAN YESTERDAY, TODAY, TOMORROW: FROM TOTALITARIANISM TO A LEGAL STATE...... 74

Tuigunaaly ABDRAIMOV – Chairman of the Central Commission on Elections and Referendums of the Kyrgyz Republic CONSTITUTION AND ELECTIONS OF KAZAKHSTAN THROUGH THE EYES OF KYRGYZ COLLEAGUES...... 83

Yurii BAULIN – Chairman of the Constitutional Court of the Ukraine, Doctor of Law, professor, Academician of the National Academy of Legal Sciences of Ukraine CONSTITUTIONAL CONTROL IN UKRAINE AND THE REPUBLIC OF KAZAKHSTAN: FORMATION AND ESTABLISHMENT...... 86

4 Lars BROCKER – President of the Constitutional Court and the Higher Administrative Court of the Rheinland-Pfalz (Federal Republic of Germany) CONSTITUTION AND CONSTITUTIONAL DEVELOPMENT IN THE TRANSFORMATIONAL SOCIETY: THE WAY OF THE REPUBLIC OF KAZAKHSTAN...... 92

Valery ZORKIN – Chairman of the Constitutional Court of the Russian Federation, Honored Lawyer of the Russian Federation, Doctor of Law, professor THE ROLE OF THE CONSTITUTIONS OF POST-SOVIET STATES IN THE FORMATION OF NEW STATEHOOD AND unification of SOCIETY...... 96

Hasim KILIC – President of the Constitutional Court of the Republic of Turkey (2007-2015) CONSTITUTIONALISM IN KAZAKHSTAN IN the process OF DEMOCRATIC CONSOLIDATION...... 99

Petr MIKLASHEVICH – Chairman of the Constitutional Court of the Republic of Belarus, Honored Lawyer of the Republic of Belarus SUPREMACY OF THE CONSTITUTION – FOUNDATION OF THE DEMOCRATIC DEVELOPMENT OF THE REPUBLIC OF KAZAKHSTAN...... 107

Přemysl SOBOTKA – Vice-President of the Senate of the Parliament of the Czech Republic ...... 109

Alexandru TANASE – President of the Constitutional Court of the Republic of Moldova VALUE OF CONSTITUTION AS A FUNDAMENTAL SOURCE OF LAW IN A DEMOCRATIC STATE...... 110

Park HAN-CHUL – President of the Constitutional Court of the Republic of Korea THE ACHIEVEMENTS AND EXPECTATIONS FOR THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN...... 112

Taher HIKMAT – President of the Constitutional Court of the Hashemite Kingdom of Jordan The Constitution of Kazakhstan: An Overview and Safeguards of Human Rights ...... 115

Gerhart HOLZINGER – President of the Constitutional Court of the Republic of Austria The Importance of Constitutional Justice for the Establishment of a Democratic State under the Rule of Law...... 119

Yury CHAIKA – General Prosecutor of the Russian Federation, Acting State Advisor of Justice, Honored Lawyer of the Russian Federation...... 123

III. REPRESENTATIVES OF THE ACADEMIC COMMUNITY

Suren AVAKIAN – Head of the Department of Constitutional and Municipal Law of the Faculty of Law of the Moscow State University named after M.V. Lomonosov, Honored Worker of Science of the Russian Federation, Doctor of Law, professor ROLE OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN IN THE FORMATION AND DEVELOPMENT OF MODERN CONSTITUTIONALISM...... 127

Grigoriy VASILEVICH – Chairman of the Constitutional Court of the Republic of Belarus (1997- 2008), Honored Lawyer of the Republic of Belarus, Doctor of Law, professor CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN – THE FOUNDATION for transformation OF THE SOCIETY AND STATE...... 130

5 Yurii GOLIK – Director of the Center on the Study of Organized Crime in the economy and trade of the Russian State Trade and Economic University, Director of the Center on Special Legal Programs of the Independent Institute for Strategic Studies, vice-president of the “Antimafia” Fund, Doctor of Law, professor CONSTITUTION – BASIS FOR THE CONSTRUCTION OF THE LEGISLATIVE SYSTEM OF THE FIGHT AGAINST CRIME ...... 135

Nina GOLIK – Leading researcher of the Research Institute of the Federal Penitentiary Service of Russia, Honored Lawyer of the Russian Federation, Candidate of legal sciences CONSTITUTIONAL JUSTICE FOR PERSONS SERVING CRIMINAL SENTENCE...... 137

Rolf KNIEPER – Leader of the project “Legal reform in countries with transitional economy” of the German Society for Technical Cooperation (GTZ), consultant on civil and economic legislation in Albania, Armenia, Azerbaijan, Georgia, Tajikistan, Kazakhstan, Kyrgyzstan, Mongolia, Russia, Uzbekistan, Moldova, China, Ukraine; coordinator of the project aimed at modernization of the legislation in the sphere of private law in countries with transitional economy, co-publisher of the specialized journals “Critical Justice” and “Social and Legal Sciences”, Doctor of Law, professor (Federal Republic of Germany) NOTES TO THE CIVIL CODE OF THE REPUBLIC OF KAZAKHSTAN...... 143

Emil MINGOV – Head of the Department of Labor Law and Social Security of the Law Faculty of the Sofia University ”St. Kliment Ohridski”, Doctor of Law, professor (Republic of Bulgaria) IMPLEMENTATION OF THE CONSTITUTIONAL PRINCIPLE OF FREEDOM OF LABOR IN THE LABOR LEGISLATION OF BULGARIA AND KAZAKHSTAN (COMPARATIVE ANALYSIS)...... 146

Lidiya NUDNENKO – Professor of the Department of Legal Support of Public and Munici- pal service of the Institute of Public Service and Management of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, Honored Worker of the Higher Professional School of the Russian Federation, Doctor of Law CONSTITUTIONAL BASIS OF ELECTIONS IN THE REpublic of KAZAKHSTAN...... 152

Igor OSTAPOVICH – Senior Researcher of the Gorno-Altaisk State University, Candidate of legal Sciences, associate professor THE ROLE OF REGULATORY CHARACTER OF DECISIONS OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN IN PROVISION OF UNIFORM RULE-MAKING SYSTEM...... 157

Tatyana OTCHESKAYA – Judge of the Arbitration court of the West-Siberian region of the Russian Federation, Doctor of Law, professor CONSTITUTIONALISM IN KAZAKHSTAN – Current REALITY...... 163

Tatyana ROZHDESTVENSKAYA – Professor of the Department of Financial Law of the Moscow State Law University named after O.E. Kutafin, Doctor of Law Alexei GUZNOV – Director of the Legal Department of the Bank of Russia, Honored Lawyer of the Russian Federation, Candidate of Legal Sciences MEGA-REGULATOR OF THE FINANCIAL MARKET: EXPERIENCE OF KAZAKHSTAN AND RUSSIA (COMPARATIVE AND LEGAL ANALYSIS) ...... 167

Mukhammadiso RAVSHANZODA – Associate Professor of the Department of Law and Public Service of the Institute of Public Administration under the President of the Republic of Tajikistan DIRECT (IMMEDIATE) ACTION AS THE MAIN ELEMENT in the mechanism of action of THE CONSTITUTION...... 173

6 Marat SALIKOV – The First Vice-Rector of the Ural State Law University, Head of the Department of Constitutional Law, Honored Lawyer of the Russian Federation, Honored Worker of Higher Professional Education of the Russian Federation, Doctor of Law, professor CONSTITUTIONAL AND LEGAL BASIS OF POLITICAL PARTIES: THE EXPERIENCE OF POST-SOVIET RUSSIA AND KAZAKHSTAN...... 176

Uliana FILATOVA – Associate Professor of the East-Siberian branch of the Russian State University of Justice, Candidate of Legal Sciences CONSTITUTIONAL GUARANTEES OF THE RIGHT OF PROPERTY AS THE BASIS OF DEMOCRATIC AND LEGAL STATE - of the REPUBLIC OF KAZAKHSTAN: AN ANALYSIS OF CERTAIN limitations ON THE EXAMPLE OF THE RIGHT OF COMMON SHARED OWNERSHIP...... 183

Friedrich-Christian SCHROEDER – Professor, Doctor of Law, Honored Doctor (Federal Republic of Germany) CONTRIBUTION OF THE CRIMINAL PROCEDURAL CODE OF KAZAKHSTAN TO DEVELOPMENT OF THE LEGAL STATEHOOD: VIEW FROM GERMANY...... 188

Lyudmila TKHABISIMOVA – Deputy Director for Science of the Institute of Law of the Federal State funded Educational Institution of Higher Professional Education “Pyatigorsk State University of Linguistics”, Doctor of Law, professor (Russia) CONSTITUTIONAL RESPONSIBILITY IN THE SYSTEM OF HIGHEST BODIES OF STATE AUTHORITY OF RUSSIA AND KAZAKHSTAN...... 192

Vadim IPATOV – Director of the National Centre of Legislation and Legal Research of the Republic of Belarus PRELIMINARY CONSTITUTIONAL CONTROL IN THE REPUBLIC OF BELARUS AND THE REPUBLIC OF KAZAKHSTAN...... 200

Aleksandr KOROBEEV – Head of the Department of Criminal Law and Criminology of the Law School of the Far Eastern Federal University, Honored Worker of Science of the Russian Federation, Doctor of Law, professor CONSTITUTIONAL AND LEGAL BASIS OF THE REFORM OF THE CRIMINAL LAW: FROM KAZAKHSTANI PRESENT – TO THE RUSSIAN FUTURE...... 209

Mukesh kumar mishra – Central Asia Area Studies Programme Centre for Inner Asian Studies, School of International Studies, Jawaharlal Nehru University (Republic of India) State of Democracy and Constitutional Development in Contemporary Kazakhstan ...... 213

Carlos Flores Juberías – Professor of Constitutional Law, University of Valencia (Spain) A Critical Assessment of the Role of Consensus in the Making of the 1978 Spanish Constitution...... 221

7 INTRODUCTION

ugust 30, 2015 marks the twentieth anniversary of the Constitution of the Republic of Kazakhstan. A It embodies the best achievements of the world constitutional idea. Ideas and principles such as popular sovereignty, political pluralism, equality and equal protection of all forms of property, the rule of law, freedom and responsibility of the individual, the separation of powers, parliamentary system, constitutional control, independent and amenable justice, local self-government and other basic beginnings of constitutionalism are fixed and proclaimed along with state’s values in a dialectical combination. Developed under the direct supervision of the President of the Republic – Leader of the Nation Nursultan Nazarbayev with due account for opinions of well-known domestic and foreign experts with the comprehensive examination of the public, Constitution is based on the experience of the first years of the formation of the state independence and clear vision of the unique role of the Constitution, the prospects of the development of Kazakhstan as a sovereign, strong , prosperous, democratic, secular, legal and social state, highest values of which are an individual, his life, rights and freedom. Recognizing itself as a peaceful civil society, dedicated to the ideals of freedom, equality and harmony, the nation of Kazakhstan in the Constitution have confirmed the desire to take a rightful place in the world community. The Republic of Kazakhstan has declared the respect of the principles and norms of international law; it follows a policy of cooperation and good neighborly relations between countries, their equality and non-interference into internal affairs of peaceful settlement of international disputes and renounces the first use of armed force. Inclusion in the text of the honest and unambiguous answers to people’s vital questions and a statement of standards in a language understandable for all have made the Basic Law clear and demanded for everyone and ensured its direct and effective action. The will of Kazakhstan nation, expressed by the direct nation-wide vote on the referendum has given the Constitution the highest legitimacy, has become the foundation of the firmness of the sovereignty, legal instrument of resolving difficult situations of transition period, and followed transformation of society and the state in peace and harmony. Over the past twenty years in the world community Republic of Kazakhstan is one of the best examples of the uniting the legal and factual constitutions, constitutional norms and reality. Solicitous attitude to the Constitution, complying the balance between its stability and susceptibility to changes, allow the Constitution to be always up to time, relevant and a constantly demanded efficient document with trustworthy potential and margin of safety. Naturally, Kazakhstan, like any other country, first of all, being in the state of transformation, has difficulties arising from the internal state of society, international challenges and risks. They are well-known. In order to overcome or mitigate them a long-term policy of the supreme power, directions of multi-vector constructive intensive work of Kazakhstani people are determined in the highest state planning documents, performed on the main parameters

8 Strategy “Kazakhstan-2030” and oriented to the future the Strategy “Kazakhstan-2050”, as well as annual addresses of the President of the Republic. Scientifically verified, coordinated at all levels, consistent, and daily practice of the state and public institutions has resulted in the gradual capture to ideals fixed in the Basic Law. Vectors of the constitutional development of the Republic of Kazakhstan are defined on the next period by essence and the contents the put-forward President of the Republic N.A. Nazarbayev of the National patriotic idea «Мәңгілік Ел (Eternal Motherland)», acting as the purpose and means of consolidation of constitutionalism in the Republic of Kazakhstan. Innovative provisions are issued in the presidential five institutional reforms developed in Plan of the Nation «100 concrete steps of further state construction». The results achieved by the country in the field of establishing constitutionalism are given high positive assessments both within Kazakhstan and beyond it. They are heard from the stands of international forums, scientific publications, at personal meetings with famous politicians, diplomats, public figures, world scientists, representatives of various spheres of knowledge. During one of such forums the member of the Bureau of the Venice Commission of the Council of Europe, the President of the Constitutional Court of Armenia, Gagik Garushevich Harutyunyan on the eve of the twentieth anniversary of the Constitution of Kazakhstan has expressed the desire to provide colleagues from near and far abroad with the possibility to share their professional judgment on the new state of Kazakhstan, of the Constitution of the state, its exclusive role in the establishment of modern social structure and system of existing law. So the idea to publish a book, which has come out of print today, was born. It includes views of the President and members of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), representatives of the United Nations and other international organizations, who well know Kazakhstan, famous public officials, presidents of constitutional courts and heads of different state agencies, as well as famous scholars of public and private law. We appreciate congratulations, articles, opinions and suggestions of all authors. We hope for our future cooperation.

I.I. Rogov Chairman of the Constitutional Council of the Republic of Kazakhstan

9 I. PUBLIC FIGURES AND REPRESENTATIVES OF THE INTERNATIONAL ORGANIZATIONS

Gianni Buquicchio – President of the European Commission for Democracy through Law of the Council of Europe (Venice Commission)

s you know co-operation with different countries of the world in the field of constitutional reforms is one of the main fields of activities of the Venice Commission. In the last 23 years we have assisted many AEuropean countries in the process of constitution drafting and reforms of constitutions. We have come to a conclusion that no matter the continent or historical, economic or cultural background of a country adopting a new constitution, there are some essential features for making constitutional reforms work. It is clear that at the moment of its adoption, a new Constitution has to be based on a broad consensus within parliament and different parts of society. In many countries it also implies a transition from previous institutional design to a new one. This requires from all sides a willingness and courage to compromise. Most Constitutions guarantee the separation of powers and the protection of fundamental rights: basic principles, constitutional values, which if respected lead to peace and stability. A Constitution has to unite and not to divide a society therefore it has to be a living instrument capable of reacting to the new challenges the country is facing. It is true that each country has its own history, culture and constitution-building experience. However, sharing different experiences, benefiting from different success stories of other States is essential. In Europe, there has always been what we, at the Venice Commission, like to refer to as “cross-fertilisa- tion” between ideas, values and achievements, embracing our common aspects as well as our differences. This is what contributed to making Europe what it is today. Genuine democracy, the protection of human rights and the rule of law are values on their own but they are also essential for the maintenance of peace - peace within the country - peace with other nations. Kazakhstan started co-operating with the Venice Commission more than a decade ago. In recent years our co-operation intensified culminating in Kazakhstan’sfull membership in the Venice Commission in 2012. By joining the Venice Commission, your country demonstrated a clear commitment to advance democracy, human rights and the rule of law with the assistance of the Commission. Since the accession of Kazakhstan to the Venice Commission, our co-operation can be used as a good example by many other countries co-oper-

10 ating with the Venice Commission in the region. In 2012 we successfully completed a specific co-operation programme with the Central Electoral Commission of Kazakhstan; we also worked together on a number of extremely important issues in the field of justice, implementation of international treaties and protection of fundamental rights of individuals. Representatives of your country also made a substantial contribution to the discussions of a number of multilateral activities organised by our Commission. We are keen to continue and further intensify our work with Kazakhstan. Your country is currently updating its legislation in a number of important fields, such as the judiciary, criminal procedure, and I am sure that the Venice Commission’s experience and knowledge off different legal systems could be useful to reform its legal framework in compliance with the international standards in these fields. Moreover, these reforms can be supported by other services of the Council of Europe on the basis of the Action Plan prepared together with the authorities of Kazakhstan. One of the main forms of co-operation of the Commission with its Member States is the preparation of legal opinions. We started this form of co-operation with this country even before its accession to the Com- mission as a full member. Already in 2007 the Venice Commission prepared an opinion on the reform of ombudsman institution, which gave the Commission ample occasion to further develop its doctrine on the important relationship between the ombudsman and the Constitutional Council. I am pleased that, through the Venice Commission’s 2011 opinion on the Constitutional Law on the Ju- dicial System and the Status of Judges of Kazakhstan, we have been able to contribute to a stock-taking of further challenges in the judicial sector. No democracy can prosper without a full independent judiciary. The legislative, executive and judicial powers will further reform to protect human rights, which are essential for peace in society. Here, the judiciary has a special role to play because it not only ensures that the Constitution and laws are followed by the citizens but it also protects them against violations of their rights. The reform should result in a judiciary, which takes constitutional principles as the basis of its work. We know that the reform is still going on and you can count on the Venice Commission as a partner in this important process. The role of the Constitutional justice in protection of democratic values is essential. The Constitutional Council was the first institution of Kazakhstan to start co-operating with our Commission on a regular basis. A Constitution, more than any other legal text, rests on values, which are common to society. These values are applied every day by the Constitutional Council, whose very purpose is to defend this Constitution; moreover, these values should also permeate the work of every judge in the country, every policeman, in short - every state official. The Constitutional Council actively participates in exchanges of ideas and experiences on international level and I would like to welcome its 2013 decision to become a member of the World Conference on Consti- tutional Justice. Your country has started a number of reforms aimed at building a democratic society based on universal standards and inspired by the democratic experience of different European countries. For a successful development of any democracy an exchange of ideas means unrestricted freedom of expression of different opinions and political views. It is true that this is not an easy process and it requires from all sides, the majority, the opposition and very often the civil society of the country political wisdom and capacity to compromise. However, this diversity of views cannot but contribute to a successful constitutional development of your country, provide an additional impulse to economic growth and help to face any challenges to internal stability. I am sure that the legislative, executive and the judiciary powers in Kazakhstan will continue to reform in order to improve further different instruments of protection of human rights enshrined in the Constitution. These reforms are essential for maintaining stability and peace in society. I am pleased that the authorities of Kazakhstan are actively co-operating with the Venice Commission on some of these important reforms in legal sphere. The Venice Commission remains at the disposal of the authorities for continuing and further developing this common work.

11 Gagik HARUTYUNYAN – Member of the Bureau of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), Chairman of the Constitutional Court of the Republic of Armenia, chairman of the Conference of Constitutional Control Organs of the Countries of New Democracy, Doctor of Law, professor

AXIOLOGICAL FEATURES OF THE TRANSFORMATIONAL CONSTITUTIONALISM IN KAZAKHSTAN

n many of our researches my colleagues and I tried to reveal the gnoseological and axiological foundations of modern constitutionalism and produce the concept, according to which the notion of constitutional- Iism should be viewed not as one of the basic principles of constitutional law, but as a fundamental principle of modern law in general [1]. It can be stated that the modern constitutionalism is a presence of established by public consent fundamental rules of a democratic and legal conduct, their existence as an objective and living reality in public life, in the civil behavior of each individual in the process of governmental authorities implementation. The system of basic categories of law, along with the social and cultural evolution, acquires new image and character. The notion of “constitutionalism” as a general legal principle of the social behavior of society gets the fundamental importance in this system. This notion is inexorably associated with the constitutionalization of social relations and qualitatively new manifestations of constitutional culture. “Constitutionalism” is a comprehensive, conscious by the society, reasonable presence of fundamental constitutional values and principles in a real social life, on which the entire legal system is based. Regulative characteristics of this principle assume the necessary and sufficient legal guarantees for

12 the conscious enforcement of the rights and freedoms in the entire system of law and social relations. In the constitutional state any legal rule should appear as part of a mutually agreed system of legal human behavior and the state. The concept of constitutionalism should be seen not as one of the basic principles of the constitutional law, but as a fundamental principle of law in general. First of all it is an ideal of civilized self- regulation, to which the society should strive. In a legal state the existence of law as a necessary form of freedom, equality and justice in social life, as a basis for the coexistence in a dynamic social environment acquires a new role in life. Of course, the essence of the legal state lies in the recognition of the rule of law and guaranteeing freedom by limiting the power by the law. This theoretical formulation acquires a real content when social society consciously and with the public consent is going to live and work on the basis of this principle and values and criteria proceeding from it. Their totality is the basis of the constitutional system of each individual society. In a legal state manifestation of the law as the essence and phenomenon is characterized by the appropriate level of constitutionalism. This is also stipulates the dialectic of the law and right, correlation of the Constitution and constitutionalism. Constitutionalism as a fundamental principle of the right at the certain level of the society development acquires a backbone and universal nature of legal regulation, expresses and specifies legal content of the guarantee and security of the rule of law, plays a role of the criterion of the legality of the behavior of legal subjects, serves as a beginning source of law-making and law enforcement activity, and serves as the result of historical development of the society. Constitutionalism, as a way of legal matter, is inherent to such social systems that reached a certain evolution of recognition and social freedoms and social harmony guarantying on the basis of an appropriate system of social and cultural values. Any deformation of the constitutionalism serve as a distortion of the fundamental constitutional values and principles in society, a departure from the general consent regarding the social and cultural values of the society. Especially in terms of social transformation deformations of the constitutionalism are the main factor of destabilization and social disasters. Overcoming them requires effective and systemic constitutional monitoring based on purposeful and ongoing constitutional diagnosis. Addressing in Astana in August 2010, I have stressed, that can be undoubtedly confirmed, that Kazakh- stan has managed to find the best and the evolutionary path of the approval of the transformational constitutionalism that is epidictic and very useful for other transition countries. Then, and in the following years, we have been witnesses of a praiseworthy attitude of the whole country to the Basic Law. That time I also have noticed that the words of the highly respected President Nursultan Nazarbayev at the Conference and on the day of solemn parade in honor of the Constitution should be included in textbooks on transitology, as a deep generalization of the nature of today’s challenges and the correct approach to the problems of system transformation. In the newspaper “Kazakhstanskaya Pravda” dated of December 15, 2011, congratulated the people of Kazakhstan on the 20th anniversary of Independence, I also have stressed that the independence has opened enormous opportunities for national revival of the post-Soviet republics. However, it is necessary to learn how to use these opportunities competently and skillfully. Popular wisdom says that freedom - is a divine test for the ability to dispose own destiny. After the collapse of the Soviet Union, all our countries had to choose own philosophy, own approaches to the establishment of functional and institutional foundations of social transformation. And this is historically complex process, in fact, in terms of value-system vacuum. Without exaggeration, we can say, that the world today is facing unprecedented challenges of a systemic crisis, which has, as we think, deeply axiological nature.

13 In such circumstances, Kazakhstan, also has made choice; choosing fully conscious, deliberate way of stable and efficient evolutionary development. It is the main feature of transformational constitutionalism in Kazakhstan. It is a conscious choice of the people based solely on important addresses of the President of the state, aimed at the creation of strong backbone exogenous and endogenous prerequisites of the targeted, stable and dynamic development of the country. It is an undeniable historical fact, that Kazakhstan has managed to avoid the constitutional romanti- cism and idealism and chose the path of a consecutive constitutionalization of social relations with the overcoming of the conflict between the Constitution and the legal system as a whole, between the historical and today’s realities. Comparative analysis of the processes of formation of the transformational constitutionalism in our countries decisively shows that in order to avoid social cataclysms and different color revolutions, with all their devastating consequences, first of all, there is a need for realistic approach to the approval of constitutionalism in society. Life has forcibly shown that Kazakhstani constitutionalism based on the principle of the formation of a legal state, security of the supremacy of the Constitution and law, taking into account the social and cultural systems of values of the Kazakh people, fully complied with the realities historically built in society and become a solid foundation for the development of the country. It is a historical fact that during the years of independence Kazakhstan has established a strong foundation of the welfare state. At the same time, proposed by the President new concept on the achievement of the Society of Universal Labor not only reveals wide opportunities for further development, but also serve as a fundamental approach to overcome social cataclysms of today’s world. According to this concept, the purpose and meaning of the social modernization is to prepare the society for life in terms of new industrial and innovative economy, to find an optimal balance between crash economic development of Kazakhstan’s and a wide provision of public goods, to establish social relations based on the principles of law and justice. This, as we think, is profound and the right way of the establishment of modern constitutionalism in the country. In 1977, I served a scientific internship at the University of Belgrade. Then there were quite friendly relations between China and SFRY. Taking this opportunity, I began to study the processes taking place in China, Deng Xiaoping’s new ideas for systemic reformation of the country. Today it is possible to draw a logical parallel between these processes and transformations in Kazakhstan – taking into account the depth of the understanding of the taken steps, approaches systemacity, program-oriented targeting to social changes. Kazakhstan, like other countries of the former Soviet Union, was in a difficult situation after the “social earthquake”. It required great wisdom, foresight, courage, and spirit to find the right, having no alternative, oriented for the prospect way out of the system of value and systemic uncertainty in order to avoid chaos and degradation, to preserve civil peace and put the foundation for a dynamic development of the country. Unfortunately, not all states from the former Soviet Union have managed this. Today’s realities show that in terms of social transformation there are such dominant aspects as the lack of a unified axiological and systemic understanding of the social orientation of social development; uncertainty in the choice of the concept; serious omissions and gaps in the implementation of plans; alienation of personal and public interests; deepening of the confidence crisis; antagonism between policy and constitutional decisions and others. All this, as well as the continuing bloodshed in some countries require a rethinking of existing realities in our countries after two decades of independent constitutional development. Investigation of the mechanisms of systemic transformation in post-communist countries also shows that Kazakhstan is qualitatively different primarily in that there more stable systematically important backgrounds of targeted, stable and dynamic development were created on the basis of fundamental, based on the prin-

14 ciples of strategic planning of the President’s Addresses. For example, we can stress the Development Strategy of Kazakhstan up to 2030, Strategic Development Plan up to 2050, the Strategy of entering the country in the top of 30 most competitive and developed countries, “Bolashak” national program and others. These strategic documents not only gave people a clear prospect and certainty, but also the possibility of self-realization and participation in the historically significant process of becoming an independent state. And it is crucial for systemic and axiological transformation not only of the society as a whole, but also for the social behavior of each individual. A single goal, common interests, common future are the principal stimulus for self- expression of the man and oaken citizen in work, school, daily life, as well as the guarantee of the successful implementation of strategic government programs. Attitude to children, youth, school, development of science and culture, solution of social problems, creation of competitive and high-tech economy, efforts and the most important initiatives of Kazakhstan in the field of global integration processes have formed the unique atmosphere of creativity and creative takeoff. For many years I worked on the monograph “Constitutional Culture: lessons of history and challenges of the time”. I studied international experience of constitutionalism. And I can confidently confirm that the positive dynamism of constitutional development in Kazakhstan, existing wide-national attitude to the Basic Law are ones of the fundamental guarantees of the future success of the country. Generations will be truly proud of the fact that in this troubled and tumultuous world Kazakhstan has found a decent way to overcome transformation difficulties and has created stable foundations of establishing the stable and prosperous statehood.

REFERENCES: G. G. Harutyunyan Constitutionalism: lessons, challenges, guarantees. - Kiev: “Logos”, 2011; G. G. Harutyunyan Axiological nature of the constitutionalism in the context of historical evolution of the constitutional culture. In the collection “Philosophy of Law of the Pentateuch» (edited by A. A. Huseynov and E. B. Rashkovsky). - M., 2012. - pp. 70-82; G. Harutyunyan Constitutionalism as a fundamental principle of law in a legal state // Interna- tional Bulletin “Constitutional Justice”. 2012, 1 (55 pp. 5-16; New Millennium Constitutionalism: Paradigms of Reality and Challenges. Published on the Initiative and with a Foreword of Dr. G.G. HARUTYUNYAN. Yerevan, 2013.

15 Tony BLAIR – Prime Minister of the United Kingdom (1997- 2007)

Rule of Law – At the heart of Kazakhstan’s ambitions

n an increasingly unstable world and a very complex region, Kazakhstan is a stable country that is following an evolutionary path toward democracy. The basis for this progress is the 1995 Constitution. It has Ibeen a touchstone to guide the country toward political reform and modernisation, and it will continue to point the way. Twenty years since the Constitution was adopted in a national referendum, there has been progress to improve the ruleof law and continue the journey of political evolution.Clear and fair ruleof the law is fundamental to progressive economic, political and social development. Improving the rule of law will therefore be vital to the successful delivery of the Kazakhstan 2050 Strategy. It will also be vital for demonstrating to the world that Kazakhstan is not only a reliable partner on the global and regional political stage, but also an interesting and attractive country to do business with, to meet at, and to live in. Important progress has been made through the Conceptual Design for Legal Policy, which identifiesinitia- tives for reformand focuses on opportunities for legal modernisation. Improvements have also been recommended to increase fairness and transparency to government procurement, to mention another example.The next step must be the continued strengthening of institutions and the ongoing education of the people – and businesses – about their rights but also obligations, and how to enforce or protect them. This should include constitutional law that is transparent and paving the way for independent and predictable judicial processes,

16 a state-of-the-art commercial code that sets a fair framework for doing business, strengthening of alternative dispute resolution mechanisms, transparent and effective procedural rules, etc. In all of the efforts, transparency is critical. It isthe key step to strengthening institutional governance and effectiveness. Progress has been made, with recommendations for clearer enforcement of court rulings, rights to arbitration, and the introduction of an administrative procedural code. Identifying improvement areas and passing relevant legislation are important steps, but at the end of the day, delivery of those measures really makes a difference to citizens and businesses. The measures have to be effectively implemented, to make a real difference. Kazakhstan has taken many steps to not only pass relevant legislation, but to actually see it implemented cohesively across the country. At the same time, cohesive implementation is a challenge in any country, and even more so in a country as large and diverse as Kazakhstan. I encourage Kazakhstan to keep its sight on its aspirations, even if day-to-day delivery may be difficult and painful, and to continue and strengthen its efforts to really deliver rule of law to all its citizens and businesses, in line with the spirit and words of the Constitution. The evolution of political change, guided by the 1995 Constitution, can also be seen in initiatives to ensure the elected parliament can be strengthened in its role and the steps being taken towards political, economic and fiscal decentralisation. Where there have been regional tensions, the root causes are being addressed, not just the symptoms. At the same time, the Constitution stands as a clear symbol of unity, embracing all of Kazakhstan, and all Kazakhstanis. As Kazakhstan celebrates the progress it has made over the last 20 years it cannot afford to become com- placent. Transformation should continue for the benefit of all the people of Kazakhstan. It requires courage and determination.There are always further opportunities; there is always more to do. Kazakhstan can succeed in taking this path of steady political and economic evolution. Its Constitution should serve it well as a guide to reform and modernisation, and to provide a fair and predictable frame within which Kazakhstan, and all its citizens, will continue to grow and develop.

17 Jacques ATTALI – expert of the Expert Advisory Board under the President of the Republic of Kazakhstan on the draft of the new Constitution of the Republic of Kazakhstan (1995), ex-advisor of the State Council of France, Professor of Economics

The two pillars for a vibrant future Of Kazakhstan

azakhstan is set to become, in the forthcoming years, the richest country in the Commonwealth of Inde- pendent States in terms of GDP per capita. This trend underlines the successful efforts made by Kazakh- Kstan since its independence to achieve economic growth and to open to the world. Indeed, at the time of its independence, Kazakhstan’s future looked far from promising. After the collapse of the Soviet Union, it had to shape new institutions, and new economic and social structures from scratch. In the span of two decades, the country has operated a deep economic transformation, which translated into high GDP growth rates with a yearly average of close to 8% between 2000 and 2013, and into an increase of its Human Development Index from 0.663 in 2000 to 0.754 in 2012. These performances have largely been built upon the discovery and extraction of natural resources. Yet, Kazakhstan has been careful to turn them into actual growth, through the modernization of its economic structures. This reform activism was recognized as early as 1999 by the World Bank, which described Kazakhstan as one of the strongest reformers in the former Soviet space. Through these reforms, Kazakhstan has created a business and investment environment unique in Central Asia. This performance has been materialized by a gain of over 30 positions in the World Bank’s «Doing Busi- ness» ranking since 2006, and has allowed Kazakhstan to attract large international companies. While the latter have invested heavily in the extractive resource industries, they are now demonstrating interest for other sectors, supporting the will of Kazakhstan to diversify its economy. The next horizon is to turn the country into a full-fledged knowledge-based economy, a goal which is at the heart of the Kazakhstan 2050 strategy. This successful economic modernization has been one of the engines of the economic growth of Kazakhstan. It is however only one of the two pillars of long-term economic development. As history shows, growth will only be sustainable if accompanied and supported by a matching institutional modernization. For Kazakhstan, this will imply a transformation of its political institutions to achieve a more inclusive, democratic governance structure, resting on a vibrant civil society and a fully functioning rule of Law upholding individual rights. This is the path that has been followed by some of the most thriving economies of East and Southeast Asia, which have succeeded in closing the gap with the most developed nations - South Korea, Taiwan and, in the future, Indonesia -, and is currently on the agenda of some others, like Singapore. This path has yet to be fully followed by Central Asian countries, and Kazakhstan has the potential to serve as a role model for its neighbors in this field.

18 The country can count on a first constitutional basis upon which it can build to achieve its institutional modernization. Indeed, the 1995 Constitution, the 20th anniversary of which is celebrated this year, establishes the principles of separation and the balance between the executive, the legislative and the judiciary powers to ensure that they all serve the public interest. Second, it contains provisions to ensure ideological and political diversity, which is the pre-requisite of a harmonious cohabitation between different ethnic groups and a noted religious tolerance in the country. Third, it affirms the sovereignty of the people, and the rule by the people and for the people, as illustrated by the constitutional principle calling for universal, equal and direct elections. Further to this constitutional first basis, Kazakhstan has been striving to modernize its regulation framework towards more efficiency. As stated in the OECD Regulatory Policy Review, the country has made broad efforts to strengthen its regulatory policy and institutions, especially by developing an online database of legislation, introducing a requirement to conduct a «scientific expertise» of draft regulations, conducting extensive reviews of existing legislation, and establishing advisory councils to conduct public consultations. It is now up to Kazakhstan to implement fully these principles and to develop within this constitutional and regulatory framework the conditions to promote an active participation of the public in the country’s governance and policy decisions, taking into account the cultural, ethnic and linguistic diversity of the country. This would allow each and every citizen to take full part in the development of the nation and of its institutions. Modern and democratic institutions are for conditions for Kazakhstan to consolidate the economic progress made over the past decade and to open new horizons of prosperity for its population. Fostering this change will require a solid commitment to major reforms in three critical areas. First of all, Kazakhstan must reinforce its investment in mass education. An educated and politically literate population is the keystone to strong, modern and functioning institutions. Kazakhstan has made numerous efforts in this area, such as the creation of Nazarbayev Intellectual Schools, Nazarbayev University and the Bolashak Program. While these actions have favored the emergence of a highly trained and qualified elite, the country should now capi- talize on these progresses to spread better education to all the layers of the schooling system and of the population. Second, Kazakhstan needs to favor the development of an organized, vibrant and participative civil society, within the framework of its cultural, ethnic and linguistic diversity. This civil society, with its involvement and its diversity, will enrich the political debate to come up with innovative solutions to the country’s issues, which will serve the common good. The voices of this civil society will be echoed by highly skilled representatives in political institutions like the Parliament, and in the public sphere by the media, whose credibility, trustworthiness, pluralism and independence are a key condition to fulfill the principles enshrined in Kazakhstan’s Constitution. This will favor public debate and ideological diversity, and overall pave the way for a stronger, more sustainable and more inclusive economy. In the long term, only a vibrant and participative civil society can ensure the unity of the nation. Last but not least, Kazakhstan will benefit from modernizing its institutions. This includes reforming the public administration to improve its efficiency, enhance its capacity to deliver, dampen bureaucracy, fight corruption, and increase transparency. This reform shall focus on increasing the accountability of political authorities and civil servants to the citizens of Kazakhstan. Institutional modernization should also involve a reform of the judiciary system, to offer the people of Kazakhstan and foreign investors an independent and equitable justice, rendered by highly skilled judges. It should finally include a reform of the highest institutions of the State to reinforce the autonomy, responsibilities and accountability of the Parliament and the Government. Doing so, Kazakhstan will move towards an increasingly efficient system of institutions, able last through popular consensus beyond the people who embody them. These three-pronged reforms will contribute to the building, through a vibrant and pluralist democracy, of a stronger Kazakhstan. Only a strong State can create a strong and sustainable democracy which will consolidate in the long term the unity of the nation. This path will lead to the emergence a new and genuine Kazakhstani culture and identity, which will be a positive blend of today’s diversity. It will ensure a bright future for Kazakhstan, enabling it to successfully diversify its economy, increase its resilience to the crises it might face, improve the standards of living of its population and, overall, reach its objective of being part of the 30 most developed countries in the world in 2050.

19 Yury SOLOZOBOV – Director of International Programs of the National Strategy Institute of the Russian Federation, political analyst

WAY OF KAZAKHSTAN: FROM THE SOVIET TOTALITARIANISM TO DEMOCRATIC AND LEGAL STATE

fter the rapid collapse of the Soviet Union, dozens of new state formed on the large territory of Northern Eurasia. All of them needed to complete the transition process from the totalitarian Soviet state to the Aformation of a stable and legitimate and democratic state of a contemporary model. Two decades later, put it frankly and openly, not all republics of the former Soviet Union have managed it! Many post-Soviet countries were able to draw only admittedly “democratic facade”. And some of states backslided into the political verge of “failure government”. And only two states of the former Union: Russia and Kazakhstan have become successful and the established states according to all the strict international criteria. Against the post-Soviet background the Republic of Kazakhstan stands apart with its thoughtful strategic direction of economic and political development. As Nursultan Nazarbayev once said, the country has passed twenty years of independence “without revolutions and convulsions”. Astana proved to be able, by historical standards, to build quickly an efficient and fair state order. And it was done on the new democratic and market-oriented basis, and soon, the Republic of Kazakhstan had become a recognized leader in Central Asia and a new influenial player in the international arena. However, the political transit in the Republic of Kazakhstan could not be so smooth, without the political will and strategic wisdom of the First President of the Republic Nursultan Nazarbayev. There will be enough to remember the sad events in neighboring Russia, for example, the shooting from tanks at the “White House”, Russian Parliament in October 1993. The world still remembers these sorrowful days. Confrontation between two branches of government, the old one, the Supreme Council, and the new one in the face of newly elected President Boris Yeltsin, had ended by armed conflict and numerous casualties in Russia. Dual power, this ancestral legacy of the Soviet past persecuted political systems of many republics of the Soviet Union. And only in Kazakhstan, this conflict was settled peacefully, in a constructive way.

20 We should note the first important moment of the success of “Kazakhstan model”all the major strategic decisions in the Republic of Kazakhstan were initiated and took place with the direct participation of the Head of State N.A. Nazarbayev. International political scientists call this successful model of “reformation from the above” as “Kazakhstan’s way”. It is characterized by a strong supreme authority, and based on generally accepted principles of democracy and respect of fundamental human rights and freedoms. At the first and the most difficult stage of the Kazakhstan statehood the natural and logical step was to focus full authority and the transforming state power on one key institution. It was, quite naturally, the presidency institution, established in April 1990. The presidency institution in Kazakhstan has become the powerful core on which a new democratic state was built under the conditions regression and destruction of the former and Soviet-style authoritarian state institutions. The solidity of this important institution of power in many ways, if not to a great extent, ensured the success of the formation of sovereign Kazakhstan. And this is the second important feature of modern political history of Kazakhstan. We will recall that the formal highest authority of the country, the last Supreme Soviet, was elected in 1989. It did not work for a long time: December 8, 1991 the Belavezha Accords, declared dissolving of the Soviet Union was signed. Immediately afterwards, the Russian Federation withdrew deputies from the USSR Supreme Soviet and the Council automatically lost quorum. And its work was actually terminated. However, in the Soviet republics, Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan and Turkmenistan, the Republican Councils “as if by inertia” were continuing their work. There were tense months of political restructuring, but the situation around the So- viets virtually unchanged. It was a kind of a quiet island of authoritarianism in a boiling “pot” of social changes. But political life cannot be stopped. For the first time in Kazakhstan nationwide presidential elections were held in December 1, 1991. They were non-alternative; the only candidate was Nursultan Nazarbayev. And he won with a score of almost 99% of the vote with a turnout of voters of 88.2%. It was a unique victory! But as it is known, to keep the lead is heavier than to win it. In this respect, all the subsequent elections of the President of Kazakhstan became indicial victorious series for leadership skills and national recognition of N. A. Nazarbayev. Let’s look closely at the cold hard facts. In April 29, 1995 the referendum in extention of the term of the office of the President of Kazakhstan Nursultan Nazarbayev until December 1, 2000 was held. 95% of voters (turnout of 91%) voted for it. In the preterm presidential elections January 10, 1999, Nazarbayev was elected the President of the Republic of Kazakhstan, getting 79.78% of the votes. In December 4, 2005 N.A. Naz- arbayev was re-elected as the President of the Republic of Kazakhstan, and received 91.15% of votes. In the presidential elections in Kazakhstan, in April 3, 2011, Nursultan Nazarbayev received 95.55% of the votes. And at the preterm presidential elections which passed on April 26, 2015 N. Nazarbayev collected record 97,75% of votes (8 833 250 citizens) at an appearance of 95,21% (9090920 voters). From year to year the President of the Republic of Kazakhstan consistently confirmed and strengthened his popular mandate of the Leader of the Nation. As I think, the real independence of the young state began in December 16, 1991 with the Constitutional Law “On the State Independence of the Republic of Kazakhstan”. It declared that the law would be the basis for the development of new constitution of the state. It was inevitable, as the Constitution, according to which the country lived at that time, the Constitution of the Kazakh Soviet Union, was adopted in 1978 and did not correspond to the rapidly changing inert, because it did not include fixed even basic: market, economic and integration principles, on the basis of which Kazakhstan would like to live further. Although Kazakhstan signed a declaration of independence, the key decisions were still formally accepted by the Supreme Soviet the structure, which remained from the former authoritarian political regime. President Nursultan Nazarbayev in his book “Kazakhstan’s way” recalls how difficult it was to make timely decisions during the existence of the Supreme Soviet. New power represented by the president needed to elaborate the strategy of country’s development and the Constitution draft, but to defend these ideas in front of the Supreme Soviet with its conservative, inert and command-administrative thinking was almost impossible. It seemed, that the adherents of the Soviet system just did not understand the essense of ongoing changes, they were afraid of the New. Debates in the Supreme Soviet were getting hotter.

21 The first version of the Constitution of independent Kazakhstan was ready pretty soon. But that’s where the difficulties arose. The Supreme Soviet refused to adopt it. It seemed that the members saw their main task to preserve the Soviet power vertical. The Supreme Soviet was not ready for a dialogue. More lances were broken because of the national question. Some members of the constitutional commission absolutely did not want to take into account interests and rights of citizens of other nationalities: they wanted to secure uncompromisingly that the president and the chairman of the Supreme Soviet could be only Kazakhs. The article about the language also had caused controversies: of course, it was necessary to take urgent measures to revive Kazakh language, but in any case, neither at the expense of Russian nor other languages ... Nursultan Nazarbayev, in his book “The Kazakhstan Way” writes about this difficult time as following: “The Constitution had to be taken as soon as possible, despite the differences. After all, the state that had been independent already for 2 years, still lived under the Soviet Constitution! I had to make a compromise that ensured the adoption of a new document. The result of the forced concessions on many issues had become the fact that the first Constitution failed to respond to urgent questions of social and state development, did not meet expectations”. Attempts to defend the idea of a bicameral parliament, development of private property, introduction to the Basic Law the basic rules of a democratic state, such as, for example, the right to dissolve Parliament and right of impeachment of the President failed. The proposals were blocked by the Presidium of the Supreme Soviet. The deputies simply did not offer anything constructive; they literally hampered any attempts of changes. Each of the sessions turned into a natural “tug of war”. And the international community was losing their optimism looking at Kazakhstan. Only a few in those days believed that the president of the young state would be able to resolve such a salemate situation. Kazakhstan and its Leader have always been able to overcome all the threats and dangers, despite all possible pessimistic predictions. The Leader of Kazakhstan was able to unify community and skillfully direct the development of the country. Many (including the inner circcle of the president) persuaded Nursultan Naz- arbayev to agree to compromise and do not take risky steps. But the President stayed the course. And it gave the results: new constitution was adopted almost unanimously. And when on the electronic scoreboard in the courtroom of the Supreme Soviet results of voting appeared, the audience burst into applause. Thus, the initial stage of the constitutional development of the Republic of Kazakhstan ended with the adoption of the first Constitution of independent Kazakhstan in January 28, 1993 by the Supreme Council. We can state that its introduction meant a formal break of the majority of the former totalitarian notions on political and power organization of society. It has created a foundation for the modern state mechanism and legal system, laid the foundations for an efficient market economy; human rights and freedoms, economic competition and political pluralism were ensured for the first time. Thus, Kazakhstan disassociated itself from those models on which obsolete Soviet regime was based on, and began a decisive move in the direction of liberalism and democracy. As it is known, the adoption of the first Constitution resulted in the self-dissolution of the Supreme Soviet. And it made it possible to prepare the main law of the country again. The law that really would meet the requirements of the time and the will of the nation. Status quo was pointless that time. The country needed urgent democratic reforms and one, single power. And one leader, recognized by nation, Nursultan Nazarbayev. It is quite difficult and responsible to make decisions. Its requires clear and definite persuasion that you’re right. Often, the decision making is impossible without consultation with the huge mass of all kinds of experts and other competent persons. Responsibility of the Leader is always double responsibility. Only he, ultimately, has to keep the historical answer for the consequences of own strategic decisions. The main constituent of the success of Nursultan Nazarbayev is that he has two very important qualities of a political leader. He has a unique foresight, looking ahead in the long term. And the second, the President of Kazakhstan is able not only foresee but also to fulfill his plans. The wisdom and diplomatic skills of the President of Kazakhstan quickly gave the results. In November 16, 1993 Alatau District Soviet of People’s Deputies of Almaty city took the unprecedented

22 decision to dissolve itself and to elect deputies according to new laws. There was published an appeal to the deputies of the republic and local councils: “Councils remain largely synonymous with the old regime and the old ideology. The Supreme Soviet can no longer implement the will of the voters”. This appeal was decisive. A few days later deputies of the Leninsky and Oktyabrsky district councils of the capital also decided to terminate their powers, they were followed by the deputies of two more regions, and in a few days by the deputies of the whole Republic. A month later the Supreme Soviet did not exist. “Frankly saying, I am grateful to the deputies, who showed the responsibility in this crucial period for the country. Common sense prevailed, and initiators of the early termination of powers of the Supreme Council have were ordinary deputies. The self-dissolution of the Supreme Soviet became one of the most dramatic events in the history of independent Kazakhstan”. So Nursultan Nazarbayev writes in his book “The Kazakhstan way”. While Russia and some other republics of the former Soviet Union barely pulled round from the trag- edies caused by the constitutional crisis, Kazakhstan came to a new political system by peaceful democratic means. Leadership of many countries around the world appreciated that achievement of Kazakhstan’s President. Here, for example, the former President of Turkey Suleyman Demirel says: “at that difficult time of the formation of the state enormous contribution was made by honorable Nursultan Nazarbayev. Establishing of the state is a hard work. And establishing such a large state as Kazakhstan in such a short time, without internal convulsions and inter-ethnic conflicts deserves respect and admiration”. « If the Supreme Soviet was not so stagnant, the idea of a new democratic parliament in the country could become a reality much earlier. The structure of the new Parliament was spelled out in the draft Constitution, even in 1993. It was based on the positive experience of foreign countries, in particular France. However, it did not copy exactly anyone’s parliament: the working group had the task to analyze the international experience and to prepare a draft namely for Kazakhstan taking into account its individual specifics. In late 1993, the idea of parliament was submitted for the approval of the Supreme Soviet. But it was completely rejected. “Attempts to defend the idea of a bicameral parliament were not successful. The majority of the Presidium and the leadership of the Supreme Soviet were totally against these proposals. Conservative position was occupied also by some luminaries of Kazakhstan law. Some even said that the establishment of a bicameral parliament put an end to the national statehood” (Nursultan Nazarbayev. The book “The Kazakhstan Way”). And one cannot but admire the fact, how much has been done in Kazakhstan for peaceful transition to a parliamentary democracy, purposefully and consistently. Today the Republic of Kazakhstan is one of the striking examples of positive transformation of mentality of the society and the transition to a modern democratic system. Kazakhstan’s Parliament is one of the brightest examples of such wise decisions of N.A. Nazarbayev, as in comparison with many post-Soviet countries since 1995 parliamentary crisis in the Republic never once has taken place... Kazakhstan had to build a state from scratch. For example, it had to create a modern democratic parliament including two chambers, the Senate and the Mazhilis, acting on a permanent basis. It is professional bicameral Parliament, which provides representation of the diverse interests, and members of which can fully focus on legislative work. It is noteworthy that Kazakhstan was the first Central Asian country, which went on the democratic path. The rest of the republics just used the Kazakhstan’s experience. In March 7, 1994, there were held the elections to a new parliament, it included 177 professional deputies. So was the way from the nominal Soviet of people’s deputies to professional bicameral Parliament in the format of modern democracy. Parliamentary legislation is fixed in the 90% countries in the world. Then, in the mid-90s, for the post-Soviet countries the idea of such a parliament was almost revolutionary. The dissolution of the Supreme Soviet made it possible to prepare again the main law of the country, which really would meet the requirements of the time and the will of the people. The group of top experts of 12 people worked in the atmosphere of complete secrecy on the outskirts of Almaty in “Alatau” sanatorium. Eminent scientists, university rectors and doctors of law ... They spent a lot of days studying the constitution of different countries of the world. The President of the Republic of Kazakhstan worked with them: in the book “The Kazakhstan Way”, Nursultan Nazarbayev tells, how he personally took notes of at least 20 world constitutions. The main goal was to take the best from the constitutions of the world and avoid their mistakes.

23 Much of that project was new for Kazakhstan. If previously citizens’ rights could be restricted by the state of any authorized body and almost on any occasion, now Article 39 of the Constitution stipulated that the rights and freedoms of the man and citizen could be limited only by laws. And only to the extent that this is necessary in order to protect the constitutional order, preserve order, human rights and freedoms. This constitution entrenched in the text of the Basic Law the bicameral Parliament, which remained as a project of the Constitution in 1993. When writing the text of the Constitution of the Republic of Kazakhstan the reference point was experience of not only the Western democracies but also of the major Asian countries. As soon as the President and the working group finally formulated the text of the Constitution, it was published in the media for public discussion. The entire country literally joined the work it. As a co-author and an anchor of the TV series “The Kazakhstan Way: Independence Chronicle” I was able to witness brought from the archives huge bags of letters that were coming from the entire country every day. The experts counted that more than 3 million 345 thousand Kazakhstanis, who made almost 32,000 suggestions and comments, took part in the discussion on the draft Constitution. As a result 55 of 98 articles of the draft changed! This is an incredible achievement of democracy in an independent country! Finally, when the work on the draft Constitution was almost completed, the president signed the decree “On holding of the national referendum in August 30, 1995”. More than 90% of voters attended that referendum. And 89% of votes were for the adoption of a new Constitution. Thus, the new Constitution of the Republic of Kazakh- stan was adopted. It really was a victory of direct democracy. And how unanimously people supported the new law was a clear evidence that democratic changes were the right course. The time only confirmed this thesis. Since then, almost twenty years have passed – it is a lenghty period. It allows to estimate the stability of the taken course and the success achieved by Kazakhstan over the years of independence. During the entire period of its existence the Kazakhstan Constitution has significantly contributed to the strengthening of stability and maintenance of religious and inter-ethnic harmony in the country. This has been repeatedly noted by the international community. The Constitution of the Republic of Kazakhstan had to withstand two reforms in 1998 and 2007, as well as the addition of one article by one paragraph in 2011. And it is natural since we live in a dynamic world, and laws must also be changed in accordance with this dynamics. But the main sense of the Basic Law has always remained unchanged. Voted in favor of the new Constitution then in 1995, the citizens of independent Kazakhstan made confident choice for democracy, they voted for their free and happy future. This Con- stitution has really become a direct expression of the general will of people. And the nation became the co- author of the Basic Law, under which it had to live and build a successful country, the Republic of Kazakhstan. In conclusion, I would like to congratulate the people of Kazakhstan on this historic decision and the fact that your country achieved a high degree of political stability and recruited high rate of economic and social development. Ultimately, as an expert who has been studying the newest political history of Kazakhstan for many decades, I am convinced that this circumstance played a major role in that choice that people have made in favor of democracy. Everything happened exactly as it should be! The President, Nursultan Nazarbayev, right before our very eyes has changed the political face of Kazakh- stan. He is really a great Leader who has a huge impact not only in the region but also in the entire world. I believe that Nursultan Nazarbayev is the brightest personality of not only Kazakhstan but also global scale. Namely during the First President of the Republic of Kazakhstan, Nursultan Nazarbayev, Kazakhstan has become one of the first of the CIS countries, which have successfully completed all the necessary democratic procedures for the formation of a strong and successful state. Today Kazakhstan brilliantly has passed the first half of the historical path to prosperity, the stage of an established state. Recently the Head of the state has announced the circumspect Strategy of actions of Kazakhstan for the new historical period up to 2050. The new strategy of the President of the Republic of Kazakhstan is, on the one hand, a planned continuation of the course of systemic reforms that have long been identified in the work plans as “Kazakhstan-2030”. But on the other hand, we saw a completely original document extremely rich with new political concepts and deep philosophical ideas. Now according to reliable Nazarbayev’s course the country should move only forward to new heights and bright victories.

24 Evgeni Tanchev – Vice-President of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), Head of the Chair of Constitutional Law Sofia and New Bulgarian University School of Law, President of Constitutional Court of Bulgaria (2009 - 2012)

Sovereignty and Legal Compliance within Multilevel State and Non State Unions

I. Introductory Remarks These reflections are contribution to the further development of the issues raised during successful cooperation between the Venice commission and the Republic of Kazakhstan . The Constitutional Council Decision of Kazakhstan and the Venice Commission Amicus Curiae Opinion [1] are the starting point where the issues of Sovereignty and Legal Compliance within Multilevel Non State Enti- ties have been treated with care. Three various statuses of state sovereignty might be reviewed in order to differentiate the solutions offered by the Multilevel supranational unions. This analysis intent would be to provide a better insight to sovereignty issue in the New Euro Asian Eco- nomic Union and Customs Union Treaty under which sovereignty is to remain intact , fully belonging to the member nation states which continue to be sole holders of sovereignty before and after entering the Euro Asian Economic and Customs Unions. The two other types of sovereignty status are provided for comparison in order to demonstrate different experiences in contemporary constitutional and public international law. They are not meant to offer or suggest universal prescriptions containing cure all to Unions of different type , context and nature of the member nation states. It is also obvious that solutions inherent to one type of Union entity cannot be mechanically transplanted to another type.

II.Methods of Fostering Between National and Supranational Legal Orders in Contemporary World Two types of Relationship between national law and supranational Legal orders can be identified beyond Federal Unions at the turn of the XX and the first decade of the XXI century.

25 The first of them has been associated with the principle of primacy of international law found in the treaties and for some states of the general principles of international law and international customary law, recognized by the contemporary democratic international community. Although most of contemporary nation state constitutions proclaim the principle of primacy of international law over the domestic (municipal) legislation approaches to the issue of hierarchy vary in the different constitutions. The fourth generation national constitutions [2], or the post World War II nation state basic laws have been drafted in a globalized world in which primacy of international law has been recognized as an indispens- able element of the rule of law. The constitutions of the emerging democracies adopted after the fall of Berlin wall reflect the international and standards and democratic traditions of European Constitutional heritage. The systems of implementing the treaty obligations however are different due to the choice of monistic or dualistic system in the national constitutions [3]. Incorporation of the treaties provisions follows two types of procedures [4]. A brief comparative overview of the relevant approaches in the national constitutions would provide the following picture. According to the dominant in Europe monistic system the international treaty becomes an integral part of the national law after having been ratified. When a country has adopted dualism implementation of treaty obligation can take place not by ratification but by drafting a special law or including a provision in the existing national legislation. Comparative analysis of European systems demonstrates another type of difference due to the position of the international treaties in the national legal order. In some countries like Belgium, Luxembourg and Netherlands the international treaties provisions have supranational effect and stand above the legal system superseding the authority of constitutional norms. According to the constitutional practice of other countries like Austria, Italy and Finland the treaties having been ratified with parliamentary supermajority vote have the same legal binding effect as constitutional provisions. The third type of implementation of treaties obligations under the monistic system in Europe places them above the ordinary parliamentary legislation but under the national constitutions according to their legally binding effect. This is the current practice in Germany, France, Greece, Bulgaria, Cypress, Portugal, Spain and others. In Czech Republic, Lichtenstein, Romania, Russia, Slovak republic only the treaties relating to human rights stand above the ordinary legislation [5]. The primacy of international law standards should always be regarded as a minimum, and if especially in the area of human rights and the electoral law national constitutions establish more democratic standards the national provisions should be preferred and would not be considered as a breach of treaties. Consequently all the admissible restrictions of rights mentioned by the treaties should be considered as maximal to the domestic legislator [6]. 1991 Bulgarian constitution proclaims primacy of international law treaties which have legally binding force and supersede the contradicting provisions of the national legislation. Under the monistic approach International treaties, constitutionally ratified, promulgated, and having come into force as for the Republic of Bulgaria, shall be a part of the domestic law of the country. They shall take precedence over any conflicting legal rules under the domestic legislation. The Constitutional Court of Republic of Bulgaria in an interpretative ruling has extended the validity of this constitutional provision i.e. art 5, par.4 to include all the treaties which were signed before the entry in force of the Constitution if they fulfill the requirements of art. 5, par.4 [7]. Interpretation of art. 85, par. 3 and art.149, par.1, 4 in connection with art 5, par. 4 makes apparent that the 1991 Constitution of Bulgaria has situated treaties only second to the Constitution itself but above all the national legislation [8]. In this way the primacy of international law has complied with the requirements of art 2 of the UN Charter respecting the nation state sovereignty.

26 Second type of relationship between supranational and national legal orders is exemplified by EU law and EU member states national law. The process of implementing treaty in the national legal system is different from interaction between EU legal order and EU member state domestic legal systems. Of course supranational, direct, immediate and horizontal effect of EU law requires introduction of EU clause in the Constitution providing for transfer of sovereign powers to the EU and its institutions. The founding Treaties or primary law ( forming the so called EU unwritten constitution), and part of secondary law, enacted by the EU institutions ( mostly reglaments and some of the directives) due to the transfer of sovereignty prevail over the national constitutional norms and have legal binding effect after the EU member states have been notified. Therefore contrary to the international law treaties it does not need a ratification by the nation states or enacting or amending domestic law to be enforced. That is why implementing of the international treaties standards bears no similarity to obligation to comply with acquis communautaire in adapting the national constitutions and approximation of legislation in order to provide supranational direct immediate and horizontal effect of primary and institutional EU law. This follows from EU law supranational, direct, immediate and horizontal (universal )effect on all national legal physical and legal persons within the territory of European Union member states [9]. In order to apply this mechanism, by other supranational legal entities, the principles of open statehood, transfer of sovereignty ( sovereign powers from national institutions to the supranational organizations and their institutions ) , pooling of sovereignties of member states to meet the challenges of contemporary globalization and acquis communautaire should be consented, embraced by the member states and provided in the founding treaty of such a supranational organization. Further such a supranational entity and its institutions should conduct its activity strictly on the principles of conferral of power, subsidiarity and proportionality. Adapting of the national to the supranational legal order is to be achieved by ratification of the founding treaties, by approximation of legislation and by equipping the supranational judiciary to interpret and to impose fines and other sanctions in the case of breach of obligations of a member state of the community. Finally, national courts when adjudicating cases should enforce primary and secondary law ( law enacted by the institutions of a supranational organization) provisions when provisions of national legislation are in contradiction with the supranational law. Supremacy(primacy) of supranational law in the case of the EU [10], and if this model should be used by other supranational organizations, is achieved in the agreed areas by transfer of sovereign powers which can be strictly defined in explicit constitutional provisions or by stipulation in the constitutions of the member states and authorization of national parliaments to adopt certain organic or constitutional laws by qualified majorities establishing the areas of delegated national powers to the Union and its institutions, the methods of control by national legislatures and other details. Unless these principles and mechanisms have not been introduced in the supranational entity founding treaty the relationship of national and supranational legal systems remains within the realm of international law. With the Lisbon Treaty the notion of constitutional identity has been added and invoked by the Constitu- tional Judiciary to defend the prevalence of constitutions in the EU member states in certain areas affirmed as belonging to constitutional identity.

III. Relationship Between the National Legal Orders and the Treaties New Euro Asian Economic Com- munity. Compliance Requirement to the Kazakhstan Constitution. The Eurasian Economic Union has sought to base its model on the European Union. The identification of its nature should draw its main arguments from the treaty provisions, the mechanism for taking decisions the locus of sovereignty , instruments to enforce treaty obligations and opinions of leaders, politicians and legal scholars.

27 One of the most important features of the Eurasian Economic Union has been the respect of independence and sovereignty of the member states. As president N. Nazarbaev emphasized that Kazakhstan will not be a member to organizations that pose a danger to its independence. “Наша независимость - это наше самое дорогое сокровище, за которое боролись наши деды. Во-первых, мы никогда не сдадим нашу независимость, и во-вторых, мы сделаем все возможное, чтобы защитить ее” [11]. ( Our independence is most precious treasure, for which our grand fathers struggled. First we will never surrender our independence and second we would make all possible to defend it.) According to art.1 par.2 The Union is an international organization for economic integration having legal personality [12]. Eurasian Economic Community is an international organization that ensures multilateral economic cooperation among its member states. Many politicians philosophers and political scientists have called for further integration towards a political, military and cultural union. However, today the union is purely economic as it seeks to keep its independence and sovereignty intact. In the context of the known categories of international and constitutional law apparatus it is a non state entity whose analogue phenomenon but not a synonym is the confederation built on independence and respect of sovereignty of the member states [13]. Eurasian Economic Community differs from classic confederations and sometimes has been brought as an example of economic confederalism. Indeed decisions of institutions are taken based on the rule one member one vote but there is no requirement for unanimity neither liberum veto of a single negative member vote exists in the confederal unions. Inter- governmental method in the international organization is the natural space where decisions are taken with unanimity and liberum veto of a single negative member vote is the last defense resort to prevent encroachments on sovereignty. Most important decisions for the Eurasian Economic Union are addressed by the Supreme Eurasian Eco- nomic Council, which is composed of the Heads of State of the Member States. The Supreme Council determines the strategy, direction and prospects of integration and takes decisions aimed at achieving the goals of the union. The Eurasian Economic Commission carries out its work in compliance with the Treaty on the Eurasian Economic Union and the international agreements that provide the legal and regulatory framework of the enforcement of treaty obligations . The institutional instruments of the Eurasian Economic Union are founded on treaty and their enforcement has been based on primacy of international law provisions in the constitutions of the member states. To implement the obligations that follow from the international treaties member states resort to harmonization of legal sources of the member states. This means that no open statehood, transfer of sovereign powers to supranational institutions, adapting national constitutions to the founding treaties, acquis communautaire and other devices created in the European communities and EU development during the last six decades are available in the Eurasian Economic Union . However, there are some deviations from traditional method of implementing international treaty obligations contained in the art 4 of Constitution of the Republic of Kazakhstan which has introduced typical monistic version of implementing international treaties in domestic legal system by ratification and not by adopting or introducing amendments in the acting national legislation. Therefore Eurasian Economic Union and Customs Union institutions decisions are legally binding like usual international treaties but have to comply to the Constitutions of the member states. Another trend has been expressed by Treaty on Customs commission. According to this treaty the legal force of institutional legislation is more intensive than the international treaty. In conformity with the content of art.2 of the text of the Treaty on Customs commission that has provided for the principle of voluntary gradual stage by stage transfer of parts of member states governmental bodies powers to the commission. However, this transfer has not been provided in the constitutions of the member states including the Consti-

28 tution of Kazakhstan.( Like for example it has been done in most of the written constitutions of the EU member states which provide for transfer of parts of sovereign state powers to the EU institutions after Maastricht Treaty. It is important to emphasize that parts of state and not of popular sovereignty have been delegated while at the same time they preserve state sovereignty in all the other areas. Such provisions entrench the concept of open statehood but also act as safeguards against encroachment of sovereignty in the areas where it is not conferred). The safeguard against abdication of powers could be found in the established vote weight in the article 7 and the requirement that the decisions are to be taken with qualified majority of two thirds. Kazakh republic has no liberum veto on the decision by other two member states. There is also appeal procedure provided in the next paragraph of art. 7 to which Kazakh republic might resort in case of disagreement by referring the issue in commission’s decision to be decided by uninanimity at the level of the Customs union supreme organ consisting of the Heads of states. There is another provision worth mentioning which differs the established Customs union legal system from the EU law. In art. 16 of the Treaty on customs commission all disputes connected with interpretation or enforcement of the current treaty are to be decided in consultation or deliberation of the interested parties and if an agreement is not achieved to be addressed to the Court of Euro Asian economic community. According to the art.8 of the Treaty Establishing Euro Asian economic community signed in Astana on 10.10.2000 which has been stated ( in the preamble ) as a basis of the current Treaty on the Customs commission pending now to be decided on conformity with the Kazakh constitution, powers and jurisdiction of the Court of Euro Asian economic community has been drawn. Besides securing uniform interpretation and enforcement of the treaties the court has been authorized to ajudicate on disputes between the parties on the issues of enforcement of the Euro Asian economic community institutions decisions. The court has been also charged with deciding cases on conformity of the customs union institutions acts to the founding treaties which establish the legal basis of the customs union, to interpret the treaties forming the basis of the customs union and the acts which have been adopted by the customs union institutions. The court is also to decide on the disputes between the Customs Union commission and the member states and on the obligations of the member states according to the treaties. However, contrary to ECJ the court has not been entrusted with the power to impose sanctions and fines on the member state for non performance of the duties according to the international treaties [14]. Adhering to the rule of law and the current wording of constitutions in the member states of Euro Asian economic Union means that treaty obligations should be performed on the basis of primacy of international law provisions. For the Republic of Kazakhstanstan primacy of the international law has been provided in article 4 of the Kazakhstan constitution [15]. In two interpretative decisions of Kazakh constitutional council on the content of art.4 par.3 ( see postanovlenie N 18 / 2 2000 and postanovlenie N2 2006 explicitly state that only ratified international treaties have priority to national legislation and are directly enforceable in case they contradict and should prevail over to a provision of a national legislation. Two important conclusions follow from these two decisions of Kazakhstan Constitutional Council. 1.If there is a contradiction between the international treaty and Kazakh constitution the constitution should prevail and the treaty provision will not be enforced. 2.If a treaty has not been ratified international law should be obeyed and enforced as long as it does not contradict the domestic legislation. In case of contradiction between the domestic legislation and a treaty provision national law should prevail and the international law should not be enforced. Both of these conclusions emphasize the significance of ratification under the monistic system – to clear contradictions between the treaty , the constitution and the domestic legislation before the entry in force of the treaty and as a sine qua non to the principle of primacy of the international law.

29 Since the institutional legislation acts of will not be subject to ratification they should be enforceable only as long as they do not contradict national legislation. There is a speculative way of legal reasoning which I would not advise to follow. Supremacy of the acts of customs commission might be derived from the ratification of treaty on the customs commission on which they will be founded. Further the procedure to secure conformity of commissions acts to the Treaties that have been ratified by the Court of Euro Asian economic community, empowered to enforce but not to interpret the treaties and impose sanctions for non compliance is available too. However, the most important safeguard to protect the sovereignty of the member states remains unanimity principle for taking decisions where any of the member states negative vote is tantamount to liberum veto to the decision of the Euro Asian economic community institutons. It follows that unless these preconditions i.e.– transfer of sovereignty or ratification are missing, Euro Asian economic community institutons acts will be enforced if they do not contradict Kazakh constitution and national legislation. This idea was explicitly stated by the chairman of the Constitutiona l Council of Republic of Kazakhstan Mr. I. Rogov. “ Decisions of International organizations and their institutions that endanger Kazakhstan sovereignty do not have binding force for Kazakhstan” [16].

IV. Sovereignty in the Federations and in the Constitution of the European Union State sovereignty has been defined as an ability of the national state to determine alone and independently from the other subjects of international law its domestic and foreign policy [17]. Though the nation state sovereignty proclaimed in the UN Charter has been benchmark of post World WarII international legal order, the principle is not an absolute category for it is balanced with other principles and values legitimating democratic governance [18]. Globalization, on one part, and the economic and political power of states as subjects of international relations, on the other part, are preconditions, eroding state sovereignty of countries, smaller in terms of territory, economic potential and population. This trend reveals again the superiority of political sovereignty over legal sovereignty, manifested both internally and in the area of international relations. After the end of World War II the scope of state sovereignty has been also narrowed through the principle of primacy of international law over national law in all democratic rule-of-law states. The European integration process makes the state sovereignty issue particularly acute. The European integration architecture evolves from a regional organization through a special sui generis international union to reach a unique non statal political system of the European states and in a more distant future – a federal union, though one unknown to classical federalism and confederalism. The multi-level government in the European Union is a triad of community, intergovernmental and federal methods, which provide successful development of the member states and the supranational formations comprising the European integration architecture. The basic trend in terms of state sovereignty is not its elimination but parallel co-existence to the so- called “open statehood” with member states delegating political powers to the European Union and its institutions. The movement towards a federal union does not automatically mean loss, abdication and full transfer of sovereignty to the European Union. However, in none of the classical federations member states ¬do not lose their sovereignty and assume the status of territorial entities typical to the unitary state. In all forms of classical federalism the success of the political union depends first of all on the advance consensus on the sovereignty and division (vertical separation) of powers between the institutions of the union and those of the member states. The history of federalist doctrine and practice provide various solutions on sovereignty in the complex state formations. The different sovereignty doctrines in federalism differentiate the holder of sovereignty and superpose more than one state sovereignty over one nation and one territory.

30 The first group of constitutionalists accepts the thesis of divisibility of sovereignty between the federation and the member states. Thus both state formations are bearers of sovereignty [19] and there are two sovereignties in the federation – of the Union and of the member states. The member states sovereignty is natural and primary and the sovereignty of the Union is a derivative one, formed by delegation of rights by the member states establishing the federation. According to the second school sovereignty is indivisible. The member states or the federation are alter- natively holders of the sovereignty. Whenever constitutionalists maintain that sovereignty belongs to the member states, they practically identify the federation with a confederation. Thus, in the United States, immediately before the Civil War, Southern States’ representatives justified their sovereignty with the fact that it preceded the formation of the federation [20]. Federal bodies are only agents of the subjects of the federation acting within strictly limited powers [21]. The organization and functioning of federal institutions come closer to the intergovernmental method established after World War II in community law. Other constitutionalists affirm that sovereignty is indivisible but it belongs to the union only [22]. The states forming the federation are not sovereign [23]. At the same time, the subjects of the federation preserve such a level of autonomy from the central government, including their own constitution and citizenship, which makes them significantly different from the territorially differentiated administrative subdivisions of the decentralized unitary state. Today German lenders, though not having their own sovereignty, are declared constitution able formations [24]. The cooperative federalism doctrine developed as early as the 1930ies of the 20th century in the United States and in the second half of the 20 century in Germany, gives flexibility to the federal state. According to the representatives of this school, constitutional regulation is directed on one part towards cooperation and overcoming the conflicts between the central government and the lenders, and on the other part towards coordination of the relations between lands. In his day C. Schmitt noticed defects of the sovereignty in federalism. He formulated the antinomy theoreticians come to in their attempt to build a sovereignty framework in a federal state. If sovereignty is single and indivisible, then the existence of the federation is practically impossible. If it belongs to the federation and the subjects of the federation are non-sovereign formations, the federation itself becomes a unitary state. In the opposite hypothesis, where the member states are bearers of sovereignty, it turns out again that there is a confederacy or an international union [25]. Pragmatically, the European constitutional discourse has avoided contradictions and antinomies of the sovereignty in federations. The gradual success in uniting Europe is definitely a result of the functional cooperation and community methods evolution. The incomplete political union has been compensated by the economic cooperation and the community law based integration as a new transnational order having direct, immediate and universal effect with respect to all legal subjects in the member states. The Maastricht Treaty has placed on the agenda the issue of partial transfer of sovereignty, which was provided in the constitutions of some members even earlier. The Constitutional treaty goes beyond the “open statehood” as it replaces multi-level government with the method of distribution of competence between the European Union and the national member states. Champions of integration try to tone down Euro skeptics’ criticism of the radical federalization of the European Union by calling the Constitution of the EU a constitutional treaty, on one part, and by refusing to solve the problem of state sovereignty in an environment of federal system of government, on the other part. But it is well-known from the history of federations that it is the content of the legal act and not its title that shapes the Union [26]. Instead of following the beaten track of division or unity of sovereignty, the thinkers of the European integration have coined the pooling of sovereignties formulae. The idea of pooling and sharing of sovereignty itself was substantiated by H. Macmillan as early as 1962 [27]. Instead of going into meaningless

31 scholastic disputes, politicians and theoreticians offer a practical solution of combining the supremacy of the union with the supremacy of the member states by fixing their areas [28]. Thus in a globalized environment the protection of states’ national interests requires to pool their sovereignties and not to oppose them [29]. The practical solution avoiding the antinomies of sovereignty in federalism and a precondition for introduction of horizontal and vertical division of powers in the European Union is the distribution of competence between the member-state and EU institutions. However, even the most precise and comprehensive separation of powers in the federal constitutions did not exclude conflicts. The setting of Constitutional jurisdictions after 1920 in Europe was the basic method to settle dispute resolution between the union government and the institutions of the member states overstep- ping their powers.

V. Division of Competence in the Federations and in the EU The EU is currently a supranational entity, and some decisions of the European Court of Justice give grounds to characterize EU law as a specific supranational legal system based on the equality and the rule of law. It is founded by limiting the sovereign authority of the member states in favor of the communities, which are delegated, both express and implied competence. Supranational, direct, immediate and horizontal ( universal ) effect are the basic principles defining the operation of the community law in the internal legal order. The EU has no analogues in the history of federations and confederations, but the distribution of authority between the center and the member states might be compared to the federal models. The political consensus on creating federation is shaped by a federal constitution, distributing the competence. The evolution of federalism creates diversity of authority resulting from the distribution and appurtenance of competence between the institutions of the central government and the member states [30]. Au- thority is attributed by the primary and secondary vertical division of powers in federalism. Federal constitutions explicitly stipulate exclusive competence union and of the member states, which cannot be overstepped, or joint (concurrent) authority exercised under specific conditions by both levels of the multi-level government. The primary distribution of authority is followed by a secondary differentiation where the vertical dimension of the separation of powers principle is specified. The powers outlined as a result of the secondary distribution of competence: - implied, which is presupposed by the delegated one, - inherent – necessary to enforce the delegated one, - reserved, which belongs to the initial holder of power, - denied – of the central government and the subjects of the federation, separately or jointly. Compared to the models of federalism, the EU is a unique entity where political integration is rather un- derdeveloped, but a wide economic cooperation together with legal regulation is in place, which determines the need to expand supranational competence. Multi-level government and constitutionalism are major features of the EU. Similar to federal law, Com- munity law has primacy. The exclusive nature of some community authority is not explicitly provided in the founding treaties and has been justified by the European Court of Justice jurisprudence. Subsidiarity [31] and proportionality are the fundamental principles regulating the distribution of authority in the areas of shared competence of the community and the member states. The objective of the subsidiarity principle is to guarantee efficient distribution of authority and close-to-citizens decision making. As stated in the Protocol on the Subsidiarity and Proportionality Principles to the Amsterdam Treaty, subsidiarity is a dynamic concept. Applying articles 94, 95 and 308 of TEU, communities’ authority is expanded to cover is-

32 sues on the building and functioning of the common market building and on the achievement of other objectives of European integration, which are not regulated in the treaties as spheres of supranational competence. The EU has the exclusive competence to establish the necessary competition rules for the functioning of the internal market and the areas of: - monetary policy in the Eurozone, - common commercial policy, - customs union, - conservation of marine biological resources. The EU enters into international treaties where that is laid down in a legislative act of the EU or where that is necessary to exercise its competence or relates to an internal act of the EU. The EU is competent to promote and coordinate member states’ economic and employment policies, as well as to define and implement the common foreign and security policy and to gradually define the defense policy. The concurrent (shared) authority of the EU and the member states is realized through their authority to legislate and adopt legally binding acts in the corresponding area. The member states exercise this competence where the EU has not exercised it in advance or has ceased to exercise it. Joint competences are applied in: - the internal market, - the area of freedom, security and justice, - agriculture and fishery, - transport and Trans-European networks, - energy, - social policy, - economic, social and territorial unity (cohesion), - environment, - consumer protection, - general public health safety problems. In the area of research, technological development and space, development cooperation and humanitarian aid, the EU is competent to approve and implement programs, without however preventing member states from exercising their competences. EU’s implied competences originate from the expressly regulated powers as a necessary tool for their implementation. Member states’ exclusive competences are all other competences not delegated to the EU in the Lisbon Treaty. Finally, it can be presumed that more detailed definition of competences would meet serious political resistance in EU’s institutions and member states because of the need to adopt amendments to the constitutions. The transfer of sovereignty formulae would prove insufficient in formulating the precise power distribution. The waiver of this line of constitutional development will in turn generate conflicts which the jurisprudence of European Court of Justice or EU Constitutional Court in the future would be able to solve effectively. This brief survey is indicative that Lisbon Treaty or the main part of the unwritten EU Constitution been founded not on single hierarchy of methods, institutions and legal acts. Inverse hierarchy [32] in the EU governance by the intergovernmental and community methods will be preserved though it will function in more effective manner by improving the interrelationships between EU and member states institutions. Primacy of the EU Constitution reflects legal supremacy within divided competences and inversed hierarchies where the different holders acting in the sphere of the exclusive competences of the EU and member states institutions have priority.

33 Perhaps in a forseeable future non-statal entities like EU and in some foreseeable future international organizations perhaps WTO and/or UN founded on agreement between the participating sovereign nation states with “open statehood” will entrench the rule of law in a written constitution coexisting and interacting with the national constitutions. However, success of the EU constitutionalism rules out two primitive conclusions. It doesn’t mean that by adopting a constitution, the EU is transformed into a state or a full fledged federation. It also doesn’t mean that the EU constitution and the emerging beginnings of global constitutionalism mark the process of the withering of nation states. Instead the EU and global constitutionalism will exist hand in hand with the constitutions of the nation states, will be made possible through the national constitutional and legal systems and will not replace them. Moreover, the nation states will be the main actors in the evolving constitutional pluralism and will work together with other non state actors.

VI. Concluding Remarks Contemporary globalization challenges might be resolved by common efforts by united efforts of nation states for they often surpass of the institutions of single state potential. One way to achieve this goal has been affirmed by the EU through complexity of community, intergovernmental and federal methods. For six decades the supranational entity has gradually evolved from economic and legal union into a multilevel governmental entity , through acquis communautaire , open statehood and transfer of sovereign powers from national to the supranational institutions. Other way which might be exemplified by the Euro Asian customs Union. have been another attempt to resolve the globalization challenges and their implications. They have been founded on intergovernmental method which does not require transfer of sovereignty to the supranational organization but are retained by the member nation states. The adapting of the national constitutions to the membership in the Euro Asian economic and Euro Asian customs unions has been founded on provisions of supremacy of the international law treaties that have been signed and ratified that surpass in their legal force the national legislation but cannot overcome constitutional supremacy when conflicting the state sovereignty. Here the need to overcome global challenges is decided not by surrender , transfer or pooling of state sovereignties. In case of globalization challenges intergovernmentalism presupposes simultaneous, interrelated exercise of the member state sovereignties where decisions are taken based on the principle of unanimity which is a safeguard against deprivation or usurpation of sovereignty.

REFERENCES: 1. On October 9 at Venice Commission 80th Plenary Session Chairman of the Kazahstan Constitutional Coun- cil Mr. Igor Rogov February 2009 requested the Venice Commission to provide an amicus curiae opinion on the conformity of the constitutional requirements of the conformity of constitution with The Treaty on the Commis- sion of the Customs Union to be before its ratification Three questions were put to the Commission: 1) On the transfer of certain powers of sovereign nation states to international organizations (o передаче определенных полномочий суверенными государствами международным организациям;) 2) On the status and the legal binding force of the executive bodies decisions (o статусe решений исполнительных органов международных организаций); 3) On the relationship between the executive international organization bodies to the national domestic legislation and especially on the binding force of the international organization acts and priority ( hierarchy) between them and the national legislation ( соотношении актов исполнительных органов международных

34 организаций и национального внутреннего законодательства, в частности, обязательности актов международных организаций и приоритетности) 3) The opinion (CDL-AD2009)044), was adopted by the Venice Commission at its 81th Plenary Session (Ven- ice, 10-11 December 2009). 2. See S.E. Finer, Notes Towards a History of Constitutions, in Constitutions in Democratic Politics, ed. V. Bogdanor, Aldershot, 1988, 17-32; аlso Constitutions and Constitutional Trends Since World War II, ed. A. Zurcher, Greenwood Press, 1955 3. See for different legal orders in dualistic system and integrating the both legal orders in monism M.Kumm , Towards a Constitutional Theory of the Relationship between National and International Law International Law Part I and II, National Courts and the Arguments from Democracy, p. 1-2, www.law.nyu.edu/clppt/pro- gram2003/readings/kumm1and2.pdf ; L.Wildhaber, Treaty-Making Power and the Constitution,Bazel,1971, 152-153 4. P. van Dijk, G. , J. Н. van Hoof, Theory and Practice of the European Convention on Human Rights, Boston,1990,11-12.A.Drzemczewski, European Human Rights Convention in Domestic Law, Oxford, 1985, 33-35 5. C. Economides, The Elaboration of Model Clauses on the Relationship between International and Do- mestic Law, The European Commission for Democracy Through Law, Council of Europe, 1994, 91-113, 101-102 ; L.Erades, Interactions between International and Municipal Law , T.M.C. Asser Institute – The Hague, 1993 ; The French Legal System: An Introduction, 1992,45; Й.Фровайн, Европейската конвенция за правата на човека като обществен ред в Европа,София,1994, 32 ; Л.Кулишев, Прилагането на Европейската конвенция за правата на човека в българския правен ред, сп.Закон, бр.2,1994, 3-25 6. See Draft Report on the Implementation of International Human Rights Treaties in Domestic Law and the Role of the Courts ,European Commission for Democracy Through Law (Venice Commission,)CDL(2014) 046 7. The Constitutonal court ruled that the legal effect of treaties signed and ratified before 1991 Constitu- tion entered in force is determined by the regime that was in effect at that time and especially according to the requirement for their publication. The treaties are part of the Bulgarian legal system if they are published or if there was no requirement to be published. If they are not published they do not have primacy to the contravening provisions of the national legislation. They might acquire the superseding effect over the contravening norms of Bulgarian legislation from the moment of their official publication. вж. Мотиви на Решение N 7 от 1992 г. по к.д. N 6 1992 ., ДВ, N 56, от 1992 г. 8. Article 85.(1) The National Assembly ratifies or denounces with a law international treaties that: 1)Are of a political or military nature; 2) Concern the participation of the Republic of Bulgaria in international organizations; 3) Call for corrections to the borders of the Republic of Bulgaria; 4) Contain financial commitments by the state; 5) Stipulate the participation of the state in any arbitration or court settlement of international disputes; 6) Concern basic human rights; 7) Affect the action of a law or require new legislation for their implementation; 8) Specifically require ratification. (2) Treaties ratified by the National Assembly may be amended or denounced only in accordance with the procedures stipulated in the treaties themselves or in accordance with the universally accepted provisions of international law. (3) The signing of international treaties that require constitutional amendments must be preceded by the passage of such amendments.Article 149.(1) The Constitutional Court: 4. Rules on the consistency between the international treaties signed by the Republic of Bulgaria and the Constitution, prior to their ratification, as well as on the consistency between the laws and the universally accepted standards of international law and the international treaties to which Bulgaria is a signatory;

35 9. These undoubted characteristics of the European law are formulated by the Court as early as the beginning of the 60s, N.V. Algemene Transport - en Expeditie Onderneming van Gend & Loos, v. Netherlands Fiscal Administration; Case 26/62; Costa v. ENEL; Case 6/ 64. See in a detail E. Stein, Lawyers, Judges and the Making of a Transnational Constitution, American Journal of International Law, vol.75, January 1975, N 1, 1-27; P. Pescatore, The Doctrine of Direct Effect, European Law Review, 8, 1983, 155-157 ; J. Weiler, The Community System: the Dual Character of Supranationalism, Yearbook of European Law 1, 1981; A. Easson, Legal Approaches to European Integration in Constitutional Law of the European Union, F. Snyder, EUI , Flor- ence, 1994-1995 10. See the comment of J.Dutheil De La Rochere and I.Pernice, in J.Dutheil De La Rochere and I.Pernice Eu- ropean Unon Law and National Constitutions,WHI-Paper 18/02,3 11. Aгентство Tengri News, Интервью президентa Нурсултан Назарбаевa по телеканалу “Хабар”. http://news.tut.by/politics/413506.htm 12. See Treaty on the Eurasian Economic Union, “Договор о Евразийском экономическом союзе” (Подписан в г. Астане 29.05.2014) (29 мая 2014 г.)http://www.consultant.ru/document/cons_doc_LAW_163855/ 13. See the Treaty’s Azanov,s commentary? In Russian Договор о Евразийском экономическом союзе: комплексный правовой анализ (Раздел I. Общие положения. Раздел II. Основные принципы, цели, компетенция и право союза) № 7,8 9 2014-Eurasian Law Journal www.eng.eurasialaw.ru/index.php, 7. 14. As it has been noted by Kazakhstan scholars concerning some state like elements performed by the EU without making it tantamount to a nation are not common to an international organizations.,see С.Ф.Ударцев, Государственность в условиях глобализации, Право игосударство N 4(61),2013,18-23,21 15. See Е.М.Абайдельдинов,Верховенство национальной конституции над нормами ратифицированных международных договоров, Проблемы развития конституционализма в Казахстане: Сборник материалов международной научно-практической конференции. – Алматы: Общественный фонд политико-правовых исследований «Интерлигал» в Казахстане, 2002. – 372 с. 16. Казахстанская правдар28 августа 2014 г. 17. Some authors analyze the content of state sovereignty in several different aspects. Krasner maintains that in international relations state sovereignty is exercised in the first place as Westphalian sovereignty, which excludes the intervention of external legal and political subjects in defining the internal organization of the national state; legal sovereignty manifested in the requirement for international recognition of states; and in- terdependent sovereignty covering the methods employed by states to control trans-border migration, S. Krasner, Sovereignty, Princeton, 1999,9 18. De Vattel is the first to write about Europe as a political system, meaning that the national states on the old continent are linked as a single body where the independent states are united by a common interest to maintain order and protect freedom. Of course, the European Union today is not a political system within the meaning attributed to this notion by Vattel, E. De Vattell, The Law of the Nations, Philadelphia, 1835, book 3., Ch. 3, sect 47; E. De Vattel, also maintained that protection of basic human rights might be argument in favor of limiting state sovereignty to guarantee freedom., Op.cit., 94 -96 19. This view is expressed by J. Madison, A. De Tocqeville about the USA and G. Waitz, L. Duguit, op.cit., 189-194; G. Waitz, Grudzuge der Politik,Breslaw, 1862, 161-176; In modern times this school is represented by L. Siedentop, see Л. Зидентоп, Демокрация в Европа, София, 2003 , 132-133 20. Sovereignty is a single whole, to divide it means to destruct it., See J. Calhoun, A Disquisition on Govern- ment, Boston, 1881, v. I, 118. 21. M. Seydel in Germany also maintains that sovereignty is indivisible and belongs to the states forming the federation, M. von Seydel, Staatrechtliche und politische Abhandlungen, Freiburg, 1893, 15 22. P. Laband, Das Staatrecht des Deutschen Reiches, Tubingen, 1911, vol. I, 91 23. G. Ellinek, op.cit., 280

36 24. E. Stein, Staatrecht, Tubingen, 1998, 103; The same view is maintained by O. Kiminih in the seven-volume commentary of the fundamental law of FRG, Государственное право Германии, Москва, 1994, т 1, 77 25. C. Schmitt, Theorie de la constitution, Paris, 1993, 517-522 26. In his federation doctrine C. Schmitt notes that “the federal treaty is a constitutional treaty” and its content immediately forms the federal constitution and becomes part of the constitution of each member state., see C. Schmitt, ibid, 518 The work of the European Convent seems to paraphrase his thesis reformulating it to mean that the development of a constitutional treaty establishes a federal union 27. “Accession to the Treaty of Rome does not imply unilateral waiver of sovereignty on our part, but pooling the sovereignties of all parties concerned, mainly in the economic and the social area. Delegating some of our sovereignty we will get in turn part of the sovereignty delegated by the other members.” H. Macmillan, Britain, the Commonwealth and Europe, 1962, in Tory Europe Network, www.toryeuropenetowrk.org.uk 28. N.MacCormick, Beyond the Sovereign State, Modern Law review, v.56, January 1993, N1, 16 29. In the EU internet site the introduction to EU’s institutions is preceded by the common understanding of pooling of sovereignty. “The European Union is not a federation like the United States. Nor is it simply an organization for co-operation between governments, like the United Nations. It is, in fact, unique. The countries that make up the EU (its “member states”) pool their sovereignty in order to gain strength and world influence none of them could have on its own. Pooling sovereignty means, in practice, that the member states delegate some of their decision-making powers to shared institutions they have created, so that decisions on specific matters of joint interest can be made democratically at European level., www.europa.eu.int/institutions/index_en.htm 30. The literature outlines many models of federalism, which reveal the diversity in regulating the distribution of competence between the central government and the subjects of the federation., See K. Lenaerts “Con- stitutionalism and the Many Faces of Federalism” in The American Journal of Comparative Law vol. 38 1990, p. 213-218 Distribution of competences constitutes the vertical dimension of the division of powers, first outlined by J. Madison in the USA. On the US, German and Swiss model of distributing authority in federations, see W. Lehmann, Attribution of Powers and Dispute Resolution in Selected Federal Systems, WP European Parliament, AFCO 103, Luxembourg, 2002; 31. The subsidiarity principle was first introduced with the Single European Act (1987) in the environment protection area only. With its recognition as a general principle of community law in the Treaty on European Union (1993) it is applied in all areas of joint competence. 32. V.Roben, Constitutionalism of Inverse Hierarchy: The Case of the European Union, J.Monnet Working Paper 8/03

37 Taliya KHABRIEVA – Member of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Vice-President of the Russian Academy of Sciences, Doctor of Law, professor

CONSTITUTIONALIZATION OF THE LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN

he Constitution of the Republic of Kazakhstan of 1995 reflects the desire to approve the universally recognized constitutional and legal standards of the organization of the state and society and at the same Ttime to realize the dream of Kazakhstani people about social justice and unity. It stood the tests of time. In this century of permanent constitutional reforms [1] its fundamental values have remained unchanged. Constitutional amendments in 1998, 2007 and 2011 were mainly focused on their rooting and expanded expression in public and political life of the country. For example, amendments of 2007 put in order to develop democratic principles of statehood provided the Assembly of People of Kazakhstan with the constitutional and legal status and strengthened the legislative power, stipulating the approval of the Prime Minister by the Mazhilis of the Parliament. [2] In many ways, this stability and efficiency was provided by the process of continuous constitutionalization of the legislation and the development of the legislative and regulatory compliance practices of constitutional values and norms. This is a relatively new topic, including for foreign juridical science, traditionally remaining within the boundaries of the study of judicial constitutional interpretation of the study and control [3]. And meanwhile the study of constitutionalization of the legislation makes it possible to estimate the extent of the reality of the constitution as the fundamental law of the state and society, to identify trends in the development of legislation, to establish changing the methods and means of legal regulation, to identify existing problems in this sphere. The processes of constitutionalization of the legislation in different countries are different due to many objective and subjective factors: the level of economic, social and political development, international legal effect, availability of the necessary institutional infrastructure, the quality of Constitution as the legal document, the will of legislators, spiritual and moral traditions etc. Their combined effect defines the extent and depth of the development of constitutional values and norms. In the development of the constitutionalization of modern legislation of Kazakhstan we can establish three main stages, which are very similar to the process of constitutionalization of the Russian legislation. [4] At the fist, “formational” stage there was built a frame of the law system of sovereign Kazakhstan. Its first outlines were defined by the Basic Law of 1993, and they finally shaped with the adoption of the current

38 Constitution of 1995, which established the modern regulation of basic social relations. [5] During this period, codes, other systemically important legislative acts, which regulated social relations in the new system of constitutional and legal origin, were developing. As a matter of priority there was carried out the formation of legislative framework of the organization and implementation of public authority, disclosed the content of the constitutional values of people power, separation of powers, ideological and political diversity (Articles 1, 3 and 5 of the Constitution of Kazakhstan) [6]. Bases of the electoral system [7] were fixed, the order of formation and the powers and mechanisms of interaction of the supreme bodies of state power [8] were established, administrative and territorial structure [9] were defined, legal status of other state agencies, local governments, public associations [10] were regulated. For a longer term, taking into the complexity of the transformation of the former socialist economic system, the process of creating the legal framework of the private sphere, aimed at resolving the constitutional problem of economic development for the benefit of all the people (Article 1 of the Constitution of the Re- public of Kazakhstan) was developed. Its main element were the Civil Code, laws on privatization, economic societies, banks and banking activities, natural monopolies and regulated markets, investments, and other segments and participants of private-law relations [11]. .In total, at this stage of constitutionalization of the legislation, which to some degree of conditionality can be determined in the range from 1995 to 2003 24 constitutional laws, 11 codes, 1027 decrees [12] were adopted. Assessing the legal policy of Kazakhstan of that time, we can note the following features. Firstly, it is a gradual approval of the rule of law, in accordance with the constitutional requirement of the execution of state power on the basis of the Constitution and the laws (part 4 of the Article 3 of the Consti- tution of the Republic of Kazakhstan). The laws have become the main form of regulation of social relations [13]. Their contents also changed. It developed in the direction of greater realization of constitutional values and norms. Secondly, features of the transformation transition to a new state of the country and society have determined the preservation of the leading role of the state in defining the development priorities and regulation of social relations. Thirdly, the desire for a gradual resolving the tasks of the transformation of the state and society was pre- vailing. This is well illustrated on the example of economic regulation. Thus, if in Russia in the first years of the Constitution of 1993 the main efforts were aimed at ensuring the forced market development, in Kazakh- stan there was a tendency for a staged introduction of elements of a market economy with maintaining the efficient operating mechanisms of state regulation, the protection of the internal market and strengthening social guarantees [14, p. 234]. The fourth, the legislator aspired to revive the ancestral traditions of the people of Kazakhstan. It is not by accident that one of the first laws focused on the protection and use of historical and cultural heritage [15]. Much attention was paid to the preservation of Kazakh language [16], returning the Kazakh nations (oralmans) to Kazakhstan [17]. The fifth, this period is characterized by the advanced development of the legislation of Kazakhstan. It was one of the first post-Soviet countries which adopted laws on the activities of the committees and commissions of the Parliament [18], on anti-corruption [19], on the administrative procedure [20], on social assistance [21], on the state protection of participants of criminal proceedings [22]. A particular notice should be given to the Law of Kazakhstan “On regulatory legal acts”, which was not only a manifestation of the constitutionalization, disclosing the content of the values of a legal state (Article 1 of the Constitution of the Republic of Kazakhstan), but also one of the main instruments of its implementation. The Law harmonized the set of regulations of the Republic, giving them the properties of hierarchically

39 structured and internally coherent, developing by the same rules system of regulatory legal acts [23]. Later the example of Kazakhstan was followed by many post-Soviet republics: Belarus (2000), Uzbekistan (2001), Kyrgyzstan (2009), Georgia (2009), Azerbaijan (2010), Tajikistan (2010) and Turkmenistan (2010). Russia has no such law, although the idea of its adoption has being discussed for half a century [24]. The second “adaptational” stage of lawmaking Kazakhstan which covered a significant part of the first decade of the new century, was focused on solving the urgent problems of political and social and economic development and the adjustment of existing legal controls on the basis of constitutional principles and norms. Monitoring of its compliance under preliminary constitutional review was executed by the Constitutional Coun- cil that allowed to stop a considerable number of constitutionally unreasonable legislative initiatives. [25] As in Russia, this period of legislative development of Kazakhstan was characterized by high renewability of laws. Thus, as of July 20, 2014, General Part of the Civil Code of December 27, 1994 was updated 97 times; 52 times of them since 2003 to 2011. Other laws have a similar dynamics. In the same period more than half of the 70 amendments to the Law “On Banks and Banking Activities” of August 31, 1995 and approximately 60% of 26 amendments to the Law “On Prosecutor’s Office” dated of December 21, 1995 were made. Accelerated correction of legislative acts was stipulated mainly by the rapid development of public relations, often demanded from legislators an immediate response to the new challenges of economic, social and political life. A notable feature of the legislation development at that time was the complexity of the content of many laws that often did not meet the subject of their regulation. For example, we are talking about electoral legislation [26]. Its main target is the voters; this suggests the need to maintain maximum availability of its provisions. But Kazakhstani as Russian lawmakers followed the way of “technocratization” of electoral legislation, its filling with technical norms facing mainly for the organizers of the elections [27]. The same phenomena can reduce the possibility of legislation as a major regulator of social life. Another feature of the second stage of the constitutionalization is optimization of the legislation development, including in the direction of greater socialization of the law and its development in the new hierarchy of constitutional values of justice, protection of human rights and freedoms [28]. Just at this time Kazakhstan took such important for the social sphere acts as the laws “on the state social order” [29], social protection of disabled persons [30], support of families with many children [31], environmental insurance [32], private enterprise [33] special social services [34]. In total, at this stage of the legislation constitutionalization 20 constitutional laws, 8codes and 900 laws were adopted [35]. In recent years, the new “modernization” stage of the legislation development has appeared, one of the reference points of which was the creation of a common Customs space of Kazakhstan, Russia and Belarus in 2011. This stage does not set any task of radical transformation of the legislation. Moreover, it is not limited by the current improvement. The modernization distinguishes by the scale and methods of solving problems that require the adoption of not only new legislation, but also the application of new methods and means of legal influence [36]. The third stage of the legislation development is characterized, first of all, by the removing the vector of legislation development. If previously the dominant emphasis has been given mainly to economically oriented industries, now there is a more balanced development of all branches of the law [37]. For example, the main object of administrative legislation were issues of public services, technical regulations, the limits of administrative intervention, that is well illustrated by the new legislation on public services [38], permissions and notifications [39], responsibility for administrative offenses [40] and others. The main vector is the reduction of administrative barriers. For this purpose, the legislation regulates in detail the powers of administrative bodies and establishes additional guarantees, excluding the arbitrary actions of officials. One of these innovations was the introduction of the principle within the framework of which the

40 decision on the issue, not considered by an administrative body within the term provided by the statute, shall be deemed adopted. New labor legislation is developing within new basis, providing self-development of the labor market [41]. The legislation regulating resource support of major economic and social programs is being improved [42]. Indicated changes provide the balance of private, social group and national interests. And here the appointment of the state is increasingly associated with its function of social services, which is clearly illustrated on the example of the laws of Kazakhstan “On special social services” of December 29, 2008 and “On public services” of April 15, 2013. The second feature of modernization is changing the composition of methods of legal influence. There are new combinations of mandatory and non-mandatory regulatory regimes. So, the public spheres, in which traditionally there is no equality of parties, are increasingly penetrated by the elements of private law related to the use of contractual and conciliation procedures. Thus, the criminal proceeding admits the transactions of confession, mediation mechanisms, and penal proceeding introduces elements of social control [43]. Self-regulatory tools are more broadly introduced in the system of mechanisms of economic regulation that is connected with objective processes of market relations development. Laws on self-governing business organizations [44], formation of private microfinance institutions [45] and support of the innovative initiatives [46] are being adopted. Such processes widely cover the sphere of social legislation, opening up opportunities for the use of social contracts. They are intensively developing in environmental law in the form of natural resources contracts concluded between the state and local authorities and private individuals. In general, in recent years there is a trend towards greater synthesis of private and public means that becomes a powerful impetus to the development of institutions of public private partnership, the emergence of public corporations and other entities with a hybrid legal nature, formation of new legal complexes and even branches of the legislation, particularly such in areas as information technology and energy supply. Another feature of the stage of modernization is ensuring the systemacity and quality of legislative regulation, as a prerequisite for the full implementation of constitutional principles and norms. There is a tendency to the shift from extensive legislation development connected with the increasing number of regulations, to the balanced legislative policy. The number of adopted acts is reducing: from January 1, 2012 to July 15, 2014 only 2 constitutional laws, 1 code and 271 rules were adopted. Planned replacement of obsolete and ineffective legislation acts, such as the Code of the Republic of Kazakhstan on administrative offences of 2001, was carried out. This act had been updated since January 30, 2001 (date of its adoption) more than 200 times, but correction of its internal defects failed. Therefore, July 5, 2014 the Republic of Kazakhstan adopted a new Code on Administrative Offences. The problems of deepening of the systematization of legislation social sectors were being solved, as evidenced by the new complex legislation acts, including on science [47], migration processes [48] and religious associations [49]. And at last, the fourth main feature of the stage of the modernization of Kazakhstan’s legislation is ensuring the integration process as a form of realization of the constitutional values of cooperation and good- neighborly relations between states (Article 8 of the Constitution of Kazakhstan). The development of integration processes within the framework of Customs Union and the Eurasian Eco- nomic Space created multilevel system of legal regulation of economic activity [50]. The legislation in this area is developing in the system of not only constitutional but also international law coordinates established by international treaties and legal acts of the Customs Union.

41 In the future the depth of the further legislation modernization will be affected by the ratification of the Treaty on the Eurasian Economic Union, which will ensure free movement of goods, services, capital and labor power, conducting the general economic policy and the harmonization of the legislation of the Union states within the framework of the created by them a single economic space. But even in these circumstances, the legislation of Kazakhstan, undoubtedly, will keep its uniqueness and inherent features reflecting the way of the state and legal development, aimed at further deepening of constitutionalization of the legislation and law enforcement practice.

REFERENCES: 1. Studies show that in the world since 1990 to the present time more than 130 of the Constitution have been adopted. In some countries, the constitutions alternated repeatedly. So, at this time Niger had 5 constitutions, Burundi - 4, Nigeria and Fiji had 3 Basic Laws. In most of the other countries a constant process of updating or correction of the constitutional text was continuing. Thus, the Constitution of Moldova in 1994 was amended six times (37 of 51 articles were modified). The Constitution of Uzbekistan 1992 was updated five times (30 articles out of 128). 1995Constitution of Azerbaijan was corrected twice (72 changes in the article 51). In the Constitu- tion of Georgia 1995 58 of the 109 articles were changed and eight new articles were added to the text. The Con- stitution of the Russian Federation, stayed for 15 years without substantial amendments (only the composition of the federal subjects and their names were under definition), amendments changing the text of 13 articles and excluding one article of the Constitution were made in 2008 and 2014. 2. № 254 law of the Republic of Kazakhstan dated May 21, 2007 “On amendments and additions to the Con- stitution of the Republic of Kazakhstan” 3. Gicquel J., Gicquel J.-E. Droit constitutionnel et institutions politiques. 25e ed. P.2011; Constitutional Law: Principles and Policies, 4th Edition (Aspen Student Treatise Series), 2011; Katz A. Staatsrecht. Grundkurs im offentlichen Recht. 18.Aufl. Munchen. 2010. 4. See details: Stages and the main directions of the constitutionalization of modern Russian legislation (To the twentieth anniversary of the Constitution of the Russian Federation) // Journal of Constitutional Justice, 2013. № 6 (36). 5. M. T. Baimakhanov et al. (ex. ed) The Constitution of the Republic of Kazakhstan. Scientific and practical commentary. Almaty: Rarity, 2010; E. K. Kubeev , S. K. Amandykova The Constitution of the Republic of Kazakhstan. Theo- retical and legal analysis. Almaty: Bilim, 2008. 6. G. S. Sapargaliyev Constitutional law of the Republic of Kazakhstan. Academic Course. Almaty: Legal Lit- erature, 2006. .7. № 2464 Constitutional Law of the Republic of Kazakhstan dated September 28, 1995 “On elections in the Republic of Kazakhstan”; №2592 Constitutional Law of the Republic of Kazakhstan of November 2, 1995 “About the republican referendum”. 8. № 2733 Constitutional Law of the Republic of Kazakhstan “On the President of the Republic of Kazakh- stan” dated December 26, 1995; № 2688 Constitutional Law of the Republic of Kazakhstan “On the Government of the Republic of Kazakh- stan” dated December 18, 1995; № 2529 Constitutional Law of the Republic of Kazakhstan “On the Parliament of the Republic of Kazakhstan and the status of its deputies” dated October 16, 1995; №2737 Constitutional Law of the Republic of Kazakhstan “On the Constitutional Council of the Republic of Kazakhstan” dated December 29, 1995; № 132 Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan” dated December 25, 2000.

42 9. The law of the Republic of Kazakhstan “On administrative and territorial structure of the Republic of Ka- zakhstan” dated December 8, 1993. 10. № 2709 Law of the Republic of Kazakhstan “On Prosecutor’s Office” dated of December 21, 1995; № 101-1 Law of the Republic of Kazakhstan “On the committees and commissions of the Parliament of the Republic of Kazakhstan” dated May 7, 1997; № 3 Law of the Republic of Kazakhstan “On Public Associations” dated May 31, 1996, etc. 11. The Civil Code of the Republic of Kazakhstan (General part) dated of December 27, 1994; The Civil Code of the Republic of Kazakhstan (Special part) dated July 1, 1999 № 409-1 LRK; № 2255 Law of the Republic of Kazakhstan “On Business Partnerships” dated May 2, 1995; № 2444 Law of the Republic of Kazakhstan “On Banks and Banking Activities in the Republic of Kazakhstan” dated August 31, 1995; № 2721 Law of the Republic of Kazakhstan “On privatization” dated December 23, 1995; № 214 Law of the Republic of Kazakhstan “On the peasant or farm”, № 220 Law of the Republic of Kazakhstan dated April 22, 1998 “On limited and additional liability”, № 272 Law of the Republic of Kazakhstan “On natural monopolies and regulated markets” dated July 9, 1998; № 213 Law of the Republic of Kazakhstan “On Individual Residential Construction” dated November 3, 1994; № 373 Law of the Republic of Kazakhstan “On Investments” dated January 8, 2003. 12. Calculations were made according to data of the Legal information system of Regulatory Legal Acts of the Republic of Kazakhstan “Adilet”, which was defined as an online resource, carrying out an official publication of regulatory legal acts (http: adilet.zan / rus). 13. The adoption of the President’s decrees, having the force of law, was typical mainly for the first years of independence of Kazakhstan. For example, the General part of the Civil Code was updated by presidential decrees only three times: in August 31, 1995, October 5, 1995 and January 27, 1996 14. G. N. Gamarnik Management of the economy of Kazakhstan: methodology, approaches and ways of implementation. Almaty. 2002; A. A. Zhakupova Development of the state business in the industry of the republic of Kazakhstan. // Kazakhstan on the way to a new model of development trend, the potential and growth imperatives Part 8. Almaty, 2005. 15. № 1488-XII Law of the Republic of Kazakhstan “On protection and use of historical and cultural heritage” dated July 2, 1992. .16. № 151 Law of the Republic of Kazakhstan “On languages in the Republic of Kazakhstan” dated July 11, 1997. 17. Law of the Republic of Kazakhstan “On Migration” dated July 13, 1997. .18. № 101-1 Law of the Republic of Kazakhstan “About the committees and commissions of the Parliament of the Republic of Kazakhstan” dated May 7, 1997. 19. № 267 Law of the Republic of Kazakhstan “On Combating Corruption” dated July 2, 1998. 20. Law of the Republic of Kazakhstan “On administrative procedures” dated November 27, 2000. 21. Law of the Republic of Kazakhstan “On state social assistance” dated July 17, 2001. 22. № 72 Law of the Republic of Kazakhstan “On state protection of persons participating in criminal proceedings” dated July 5, 2000. 23. № 213 Law of the Republic of Kazakhstan “On normative legal acts” dated March 24, 1998. 24. For the first time the idea of such a law was grounded in 1970’s. In 1990’s the draft of the federal law “On normative legal acts of the Russian Federation” was prepared. In 1996, it was considered and adopted on first reading by the State Duma of the Federal Assembly of the Russian Federation, but it did not pass further after this stage. The new project “On regulatory and legal acts of the Russian Federation” was prepared in 2013. See in detail: The draft of the federal law “On regulatory and legal acts of the Russian Federation” (proactive bill). M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2013. 25. The benefits of preliminary constitutional control is that it provides an opportunity to assess the constitutionality of the law before its adoption and entry into force. Therefore many Russian scientists propose to vest the

43 right in the Constitutional Court of the Russian Federation. On this issue, see: V. A. Dushnikov Preliminary monitoring // ezh- YURIST. 2005 № 12; L. V. Lazarev. The legal positions of the Constitutional Court of Russia. M. 2003 26. See: № 2464 Constitutional Law of the Republic of Kazakhstan dated September 28, 1995 “On elections in the Republic of Kazakhstan” of the edition of the Constitutional laws of the Republic of Kazakhstan dated 19.06.1997 № 133, 08.05.1998 № 222, 06.11.1998 № 285, 06.05.1999 № 375, 28.06.1999 № 407, 14.04.2004 № 545, 15.04.2005 № 44, 22.12.2006 № 208, 19.06.2007 № 268, 09.02.2009 № 124-IV, 14.06.2010 № 289-IV, 03.02.2011 № 404-IV, 03.10.2013, № 133-V LRK. 27. On this topic, see interview of V. I. Lafitsky for the Internet portal of the Russian Center for Training in Election Technologies under the Central Election Commission of the Russian Federation http://www.rcoit.ru/ actual/detail.php?ID=:16808&sphrase_id=2776 28. See in detail about the laws of the legislation socialization: T.Y. Khabrieva The main vectors and problems of social legislation // Journal of Russian law. 2014, № 7. 29. № 36 Law of the Republic of Kazakhstan “On state social order” dated April 12, 2005. 30. № 39 Law of the Republic of Kazakhstan “On Social Protection of Disabled People” dated April 13, 2005 .31. № 63 Law of the Republic of Kazakhstan “On state assistance to families with children” dated June 28, 2005. 32. № 93 Law of the Republic of Kazakhstan “On obligatory ecological insurance” dated December 13, 2005. 33. № 124 Law of the Republic of Kazakhstan “On private entrepreneurship” dated January 31, 2006. 34. № 114-IV Law of the Republic of Kazakhstan “On special social services” dated December 29, 2008. 35. Calculations on this stage, which covers the period since about 2004 to 2011 years were made according to Legal information system of Regulatory Legal Acts of the Republic of Kazakhstan “Adilet”. 36. T. Ys. Habrieva Stability, modernization of legislation and problems of legal science // The Law: Stabil- ity and Dynamics. M, 2007; The organization of legislative activities in the system of federal executive bodies / edited by T. Ya. Habrieva. M, 2005. .37. On constitutional legitimacy in the Republic of Kazakhstan, 2012. Message of the Constitutional Council of the Republic of Kazakhstan № 09-3 / 1 dated June 12, 2012. 38. № 88-V LRK Law of the Republic of Kazakhstan “On public service” dated April 15, 2013. 39. № 202-V Law of the Republic of Kazakhstan “On permissions and notifications” dated May 16, 2014. 40. № 235 Code of the Republic of Kazakhstan on administrative offenses of July 5, 2014. 41. T. Ya. Habrieva The main vectors and problems of social legislation // Journal of Russian law. №7. 42. № 165-IV Law of the Republic of Kazakhstan “On support of use of renewable energy resources” dated July 4, 2009; № 528-IV Law of the Republic of Kazakhstan “About space activities” dated January 6, 2012, etc. 43. № 206 The Criminal Procedure Code of the Republic of Kazakhstan dated December 13, 1997 in the edition of the Law of the Republic of Kazakhstan dated November 9, 2011, № 490-IV “On introduction of amendments and additions to some legislative acts of the Republic of Kazakhstan on improvement of law enforcement activities and further humanization of the criminal legislation”, № 402-IV Law of January 28, 2011; Penal Code of the Republic of Kazakhstan dated July 5, 2014 № 234-V, etc. 44. № 129-V Law of the Republic of Kazakhstan “About the National Chamber of Entrepreneurs of Kazakh- stan” dated July 4, 2013. 45. № 56-V Law of the Republic of Kazakhstan “About microfinance organizations” dated November 26, 2012. 46. № 207-V Law of the Republic of Kazakhstan “On the innovation cluster “Park of innovative technologies” dated June 10, 2014. 47. № 407-IV Law of the Republic of Kazakhstan “On Science” dated February 18, 2011. 48. № 477-IV Law of the Republic of Kazakhstan “On migration” dated July 22, 2011. 49. № 483-IV Law of the Republic of Kazakhstan “On religious activity and religious associations” dated October 11, 2011. 50. T. Ya. Habrieva Harmonisation of the legal system of the Russian Federation in terms of today’s challenges of international integration // Journal of Foreign Legislation and Comparative Law № 1, 2014.

44 Aslan ABASHIDZE – Member of the UN Committee on Economic, Social and Cultural Rights, Chairman of the International Law Commission of the United Nations Association of Russia, head of the International Law Institute of the Russian Peoples’ Friendship University, Doctor of Law, professor

CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN AND INTERNATIONAL COOPERATION OF THE STATE IN THE FIELD OF HUMAN RIGHTS PROTECTION

rior to the celebration of the 20th anniversary of the Constitution of the Republic of Kazakhstan, I would like to congratulate the people of neighborly Kazakhstan on such wonderful event and wish the country Pfurther prosperity and even more close and fruitful cooperation with the international community. Kazakhstan for the years of independence is rapidly progressing in its economic, social and political development, and it is absolutely naturally that the country has set itself the ambitious goal to become one of the 30 most developed countries of the world by 2050. In accordance with the Constitution the Republic of Kazakhstan proclaims itself as a democratic, secular, legal and social state. Moreover, as it’s noted in one of the decisions of the Constitutional Council of the Republic of Kazakhstan, the expression “approves itself” emphasizes the progressive development of Kazakhstan [1]. The process of formation or “approval” of the state as a legal and democratic state is a long way of improving the rights, economic development, strengthening cooperation with other countries. All these components are regulated by not only domestic law but also international law, and they are under the focused attention of international organizations, including the UN. In this short article related to the round anniversary, I would like to stress some aspects of activities in the field of human rights protection of the Republic of Kazakhstan as a whole, and the Constitutional Council, as one of the most important public bodies. Indeed, according to Article 72 of the Constitution, the Constitu- tional Council of Kazakhstan is invested with a number of authorities that are key for the life of the country, among which (in connection with the issues raised in the article) I would like to highlight the fact that the public body is considering up to the President signing the laws adopted by Parliament on their compliance with the Constitution of the Republic; considering up to the ratification international treaties of the Republic on their compliance with the Constitution; providing an official interpretation of the Constitution norms.

45 By all of its activities, the Constitutional Council of Kazakhstan confirms quite clearly defined trend of modernity at the level of theory and practice of international and domestic law, which in English is worded as follows: “Constitutionalization of International law, Internationalization of Constitutional law”. This refers to the results of interaction and mutual influence of international and domestic law in the issue of further progressive development of the international law in various sectors and areas, and in issue of further democratization of the UN member states (they are 193). In the issue of the democratization of any society great, if not crucial, importance are the efforts, made to ensure and respect the rights and freedoms of man in accordance with international legal standards in the recognition of these activities. Results in this field are obvious: almost all the basic laws of the member states of the UN (including the Russian Federation and the Republic of Kazakhstan) contain detailed sections “Bill of Rights”, reflecting all the main categories of human rights and freedoms of the International Bill of Rights. The constitutions of states confirm the primacy of international treaties over the national laws in case of conflict. In practice there is entire system of remedy for human rights infringements of the United Nations (Office of the United Nations High Commissioner for Human Rights (OHCHR), United Nations Human Rights Council (UNHRC), the mechanism of the Universal Periodic Review (UPR), more than 45 special procedures of the UNHRC in the form of special thematic rapporteurs, working groups etc.). The system of treaty bodies on human rights has been formed at the universal level; it carries out international monitoring of member states compliance with obligations under the basic agreement on human rights (there are 10 treaty bodies, consisting in aggregate of 172 independent, highly qualified experts from all regions of the world), etc. All the UN member states, including the Republic of Kazakhstan are subjected to specified trend. In the work of the treaty bodies on human rights of the UN system we are considering aspect which is often reflected in the form of one of the list of issues sent by member states after reviewing by the relevant committee on human rights the report of that state or during the interactive dialogue between members of the relevant committee on human rights and members of the delegation of the treaty member state or in the concluding observations of the relevant committee on the report. Usually, such questions sound as follows: What is the status of the international human rights treaty, participant of which is the state, in its legal system? Can the judicial authorities in their decisions directly refer to the provisions of relevant international treaty on human rights? If so, is it possible to provide corresponding examples from national judicial practice? Member states differently solve these problems by reference on the so-called “monistic”, “dualistic” or “mixed” approaches [2, p. 23-33]. What is the situation in this respect in the Republic of Kazakhstan? We have already written about that [3, p. 60-65]. Here we will briefly mention the main provisions. The current Constitution of the Republic of Kazakhstan celebrating the 20th anniversary of the adoption by referendum (August 30, 1995) states: “International treaties ratified by the Republic shall have the priority over its laws and are immediately implemented except the cases when the international treaty suggests that its application requires the promulgation of the law” (part 3 of Art. 4). The part 4 of Art. 4 of the Constitution stipulates that “international treaties, participant of which is the Republic are published”. Along with the cited article section I “General Provisions” also contains article 8, which sounds as follows “The Republic of Kazakhstan shall respect principles and norms of international law, pursue a policy of cooperation and good neighborly relations between countries, their equality and non-interference in each other’s affairs, peaceful settlement of international disputes and renounce the first use of armed force”. The key moment in the process of application of the provisions of international treaties is that the relevant international treaties should be considered “valid” only if such treaties may create the rights and obligations of the participants. This issue is clearly explained in the Decision of the Constitutional Council of the

46 Republic of Kazakhstan dated October 28, 1996 (№ 6/2). According to paragraph 1 “the current law” includes norms of international treaties of Kazakhstan that at the particular point are not canceled, and international obligations under these contracts are not terminated. We should recall that the previous Constitution of Kazakhstan in 1993 contained a provision stating that all international treaties concluded by the Republic should have priority over its laws. The Constitution of 1995 established that a priority over the laws have only ratified by Kazakhstan international treaties, i. e. approved in compliance with the established procedure by the Parliament through the adoption of the relevant law. Such international treaties are applied “immediately”, except when the international treaty requires the promulgation of a law for its application. The Decision of the Constitutional Council dated October 11, 2000 (№ 18/2) states: “The priority over the laws, and the immediate application of ratified international treaties ratified on the territory of the Republic assumes the superiority of rules of such international treaties in the event of a conflict with the norms of law”. It is obvious that in the event of conflicts of laws and if international treaties are not subjected to the ratification laws will have the priority. These conflicts can be resolved by conciliation in accordance with the rules of international law within the current legislation of Kazakhstan. This Decision of the Constitutional Council answered to the international treaties that have not been ratified, but were concluded in accordance with the previous Constitution of 1993. In respect of them there is a statement: “International treaties not providing the ratification, as a condition of entry into force, concluded before the adoption of the Constitution of 1995, should be active and retain priority over the laws of the Re- public, if such priority for these international treaties directly provided by the laws of the Republic regulating the corresponding legal relations”. The final decision in these cases is made by the Constitutional Council. For the classifying of international treaties to the current law, the definition of the start of their priority not only the date of ratification and the start of their actions, but also the relevant provisions of the particular treaty have the importance. Commenting the Constitution of the Republic of Kazakhstan 1995 Doctor of Law, Professor S. F. Udartsev notes that, in respect of all international agreements “the principle of priority of provisions of the Constitu- tion retains as a concentrated expression of the need and the possibility of ensuring the national security of Kazakhstan in terms of globalization”. In this regard, the Constitutional Council is entitled to check the ratification of international treaties on their compliance with the Constitution [4, p.23-24]. Equally important are the provisions contained in the Regulatory resolution of the Constitutional Coun- cil of November 5, 2009 (№ 6). It addresses the issue on the legal efficacy of the decisions of international organizations, their agencies, international judicial institutions, the participant of which is Kazakhstan. The Constitutional Council adjusted that the rules of art. 4 of the Constitution 1995 on the priority of international treaties ratified by the Republic over its laws and the immediate application of these decisions apply to decisions of international organizations and their agencies formed in accordance with international treaties of Kazakhstan. The decisions of international organizations and their agencies must not contradict the Constitution. Moreover, “decisions of international organizations and their agencies that infringe the constitutional human and citizen’s rights and freedoms cannot be applied immediately and, therefore, have a priority over the legal acts of the Republic Kazakhstan”. The commentary states that “international treaties, the participant of which is the Republic, regardless of their ratification, are subjected to obligatory publication” [5, p.25]. To clarify the aspects related to international treaties ratified by Kazakhstan, we should address to the relevant provisions of the Law “On International Treaties of the Republic of Kazakhstan” (№ 54), adopted of May 30, 1995 In accordance with Art. 11 of this Law following international treaties shall be subjected to the ratification:

47 – subject of which are the rights and freedoms of man and citizen; - implementation of which requires a change in the existing or adoption of new laws, as well as establishing rules which are not the same with those stipulated by the laws of the Republic of Kazakhstan; – on the territorial delimitation of the Republic of Kazakhstan with other states, including international treaties on the state border of the Republic of Kazakhstan, as well as the delimitation of the exclusive economic zone and continental shelf of the Republic of Kazakhstan; – on the basis of interstate relations on disarmament and international arms control issues, international peace and safety security as well as peace international treaties and international treaties on collective security; – on the participation of the Republic of Kazakhstan in intergovernmental associations and international organizations, if such international treaties provide the transfer them the implementation of the part of their sovereign rights of the Republic of Kazakhstan or establish a legally binding power of decisions of their bodies for the Republic of Kazakhstan; – on state loans; –on the provision by the Republic of Kazakhstan the economic and other assistance except humanitarian; – when signing of which the negotiating parties have agreed on their ratification; – if the international treaties provide that such consent is expressed by ratification. At the level of Law this clarification of provisions related to international treaties, undoubtedly contributes to a correct understanding of many complex conceptual and practical aspects regarding the status of international treaties in the national legal system. In accordance with the provisions of international treaties the Republic of Kazakhstan submits national reports on the implementation of definite obligations (for example, international covenants on civil and political rights, on economic, social and cultural rights, on the elimination of discrimination against women and others) in the various treaty bodies (UN committees). In the common basic document which is the part of reports of member states, which has been submitted by the Republic of Kazakhstan to the OHCHR [6], in paragraph 83, we can read: “The Constitution ensures fundamental human rights and freedoms” (Section II of the Constitution). Paragraph 90 of the document states: “Among the main laws regulating the issues of human rights protection there are Civil Code, Criminal Code, Criminal Procedure Code, Civil Procedure Code, Criminal Executive Code, the Code of Public Health and Public Health System, Environmental Code, The Law on the pension system, the Code on Marriage and Family, Code of Administrative Offences, the Law on Social Security, the Law on the Protection of Child Rights, the Law on equal rights and equal Opportunities for Men and Women, the Law on Education, the Law on Mediation, the Law on Migration, the Law on the rights of refugees and other laws”. Paragraph 91 of the General basic document provides the statistics on the following: “As of today Kazakh- stan has ratified 825 international treaties (702 - at the level of legislation, 57 - at the level of decisions of the Supreme Council, and 66 at the level of the decrees of the President of the Republic of Kazakhstan). 33 of these ratified international treaties are universal multilateral conventions on human rights (within the framework of its membership on the UN, ILO). In 33 specified conventions basic conventions defining the fundamental rights and freedoms are 7 UN conventions, on the implementation of which Kazakhstan submits periodic national reports in this organization”. Further, paragraph 92 of this document states: “Kazakhstan is one of the first in the CIS space state, adopted the National Action Plan for Human Rights. The National Plan has been developed together with the civil society and is implemented within the state legal policy Concept”. Paragraph 93 of the document reaffirms the fact that “all international treaties in virtue of ratification according to Article 4 of the Constitution of the Republic of Kazakhstan have priority over the laws and are directly applied except the cases when an international treaty requires the promulgation of a law for its ap-

48 plication. The President and the Government of the Republic of Kazakhstan shall take measures to ensure the implementation of international treaties of the Republic of Kazakhstan. The next paragraph 94 of the General basic document states: “The central state organs of Kazakhstan within its competence ensure compliance with commitments made under the international treaties of the Republic of Kazakhstan and monitor the implementation of the rights owned by the Republic of Kazakhstan subsequent upon such international treaties”. In concluding this section of the document states: “to ensure the active application of ratified international norms in the judicial practice July 10, 2008 the Supreme Court of the Republic of Kazakhstan adopted Regulatory Resolution “On the application of international treaties of the Republic of Kazakhstan”. It bound judges to be guided by the norms of international treaties with participation of the Republic, which are an integral part of the existing law of the Republic of Kazakhstan. As to the “International cooperation” considering document states: “From the international institutional mechanisms for the protection of human rights the state has recognized the authority of the Committee on Human Rights, the Committee against Torture, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination against Women to receive individual complaints. Kazakh- stan maintains constant cooperation with the international legal control mechanisms in the field of human rights, periodically presenting its reports to the treaty bodies, making efforts to fulfill their recommendations and bringing the legislation into compliance with indicated treaties. At the moment, the government has successfully implemented the protection of the initial reports, and in some committees it has implemented the second and third periodic reports, that is an important confirmation of Kazakhstan’s commitment to its obligations. In 2010, Kazakhstan has successfully passed the procedure of the Universal Periodic Review within the Human Rights Council” (paragraphs 174-175). A small (limited by the scope of this article) review of the formation of legislation of the Republic of Kazakhstan in the field of human rights protection and reporting to international organizations shows that the country in this direction carries out substantial activities, including organizational, legal, social and economic and other content. During the first UPR cycle Kazakhstan expressed the recommendations in the form of wishes “to continue to strengthen the supremacy of law, including independence of the judiciary and the equity of the judicial process, in order to ensure greater compliance of the legislation and practice with the principles of the international legal system”; “to take certain measures to ensure that courts carry out their functions in accordance with the ratified international treaties”. On these and other recommendations Kazakhstan has stated that they “are already implemented or are being executed” [7]. With this statement, the government of Kazakh- stan has taken the so-called “voluntary commitment” to fulfill indicated recommendations. So, the work in these areas should be continued. Improvement of the human rights protection in the country in many aspects is directed, corrected, supplemented by a multi-faceted activity of the Constitutional Council and the Supreme Court. Taking into account the fact that according to the Constitution of the Republic of Kazakhstan “state power in the Republic is united”, I believe that it is possible to make the following suggestions. • To include representatives of the Constitutional Council to the delegation of the Republic of Kazakhstan during the interactive dialogue in treaty bodies on human rights, that would provide more thematic participation of the constitutional control body in this field of international cooperation. • The Supreme Court could take an example from the practice of the other states’ courts of, in particular, Colombia, South Africa, which consolidating judicial practice on important areas of human rights, adopted appropriate resolutions based on international legal standards developed by the treaty bodies and reflected in the comments of common nature. Such resolutions allow to reveal and eliminate shortcomings in the national human rights system and to give professional advice to law enforcement authorities

49 on understanding and implementation of the relevant international human rights treaties at the interstate level. • Under the auspices of the Ministry of Justice, the human rights ombudsman, the Constitutional Council and the Supreme Court to organize training courses for the study of international legal standards on human rights and on the functioning of national human rights institutions. The members of the various treaty bodies on human rights should be invited as lecturers. One of the important segments of such courses should be studying the general comments adopted by the treaty bodies on human rights, which include the views of the relevant committees on the issue how to understand and apply certain provisions of the major human rights treaties. Increasing the knowledge in this area will contribute to the definition of the legal positions, based on international legal standards in the field of human rights. • The active role of the Constitutional Council and the Supreme Court in this process will help to eliminate the disagreements defined in terms of determining the status and direct application by the courts of general jurisdiction of provisions of international human rights treaties participant of which is the Republic of Kazakhstan. The way to the formation of a democratic state will always be accompanied by the search for the most effective solutions of various contemporary challenges both interstate and international scale. Like many scholars and practitioners, I am convinced that the content of the Basic Law of the Republic of Kazakhstan is inexhaustible, and in accordance with this the work the Constitutional Council will continue to be demanded. I wish success to colleagues in the tiresome and noble work.

REFERENCES: 1. On the official interpretation of paragraph 1 of the Article 1 of the Constitution of the Republic of Kazakh- stan. Decision of the Constitutional Council of the Republic of Kazakhstan dated December 21, 2001 № 18 // http://www.ksrk.gov.kz. 2. Aslan Abashidze The relationship between international law and municipal law: significance of monism and dualism concepts // Basic Concepts of Public International Law - Monism and Dualism / Ed. by Marko Nova- kovic, Belgrade, 2013. 3. A. H. Abashidze Constitutions of the states on status of international treaties (comparative and legal analysis) // Bulletin of the Russian Peoples’ Friendship University. Series: juridical sciences. M: People’s Friend- ship University, 2012, № 5. 4. The Constitution of the Republic of Kazakhstan: Scientific and practical comments. - Almaty: Rarity, 2010. 5. The Constitution of the Republic of Kazakhstan: Scientific and practical comments. - Almaty: Rarity, 2010. 6. UN Doc. HRI / CORE / KAZ / 2012, September 19, 2012 7. Doc. UN. A / HRC / 14/10, March 23, 2010

50 Alexei AVTONOMOV – Member of UN Committee on the Elimination of Racial Discrimination (its chairman in 2012- 2014), personal envoy of the OSCE Chairman-in- Office on the struggle with racism, xenophobia and discrimination, chief editor of the Journal «The State and the Law», Senior Researcher of the Institute of State and Law of the Russian Academy of Sciences, Doctor of Law, professor

CONSTITUTIONAL FOUNDATIONS OF LEGAL POLICY IN THE REPUBLIC OF KAZAKHSTAN (TO THE 20th ANNIVERSARY OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN)

his year Kazakhstan celebrates the glorious date, the 20th anniversary of the current Constitution. In this connection, it is always desired to take some stock of made progress in constitutional development. TAdoption of the Constitution gave a powerful impetus to the development of all legislation of the Re- public of Kazakhstan. It is important here to ensure systemacity, coherence and gradual introduction of the various regulatory aspects of individual and social, political and cultural, social and economic life. Otherwise speaking, there is a need to consider the legal policy for the formation on the constitutional foundations of a well-knit and harmonious legislative building. Speaking about the prospects of the country development, including in the legal field, seventeen years ago, the President of the Republic of Kazakhstan, Nursultan Nazarbayev pointed out that “the Constitution of Kazakhstan legalized the formation of strong presidential republic and the distribution of powers between branches of government. The institutions of civil society have been formed, the guarantees of human rights are adhered, media works without restraint” [1, p. 165.]. Thus, soon after the entry into force of the current Constitution the foundations for long-term legal policy of Kazakhstan have been laid. And here it is impossible to forget that, in accordance with paragraph 1 of Article 40 of the Constitution of the Republic of Kazakhstan in purpose of further determining the main directions of legal policy in 2009 an important document, the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 (as amended and supplemented of January 16, 2014) was adopted, and earlier in 2002 a similar program for the period up to 2010 also was adopted. According to the Russian scientist A. V. Malko, “now, in terms of legal reform, the legal policy more and more come to the fore, under this policy it is possible to understand the reasonable, coherent and systematic activity of relevant agencies (primarily state and municipal bodies) on the creation of the effective mechanism

51 of legal regulation, civilized use of legal means to achieve such objectives, as the most complete protection of rights and freedoms of man and citizen, strengthening discipline, legitimacy and a high level of legal culture and life of society and the individual” [2, p. 54.]. As mentioned above, the implementation of legal reform is pressing not only for Russia but also for Kazakhstan. And, naturally, the legal policy conduct as a purposeful activity of the state for ensuring the formation of a legal framework in key areas of development, requiring appropriate regulation, is also pressing. As № 858 Decree of the President of Kazakhstan dated August 24, 2009 “On the Concept of Legal Policy of and supplemented of January 16, 2014), prescribes “there is a need for a single legal policy, based on modern trends of the society development, accumulated experience and science-based, fundamental ideas about the immediate and long-run prospects of the Kazakh state and society”. Kazakhstan not only actively puts into practice regular Concept of Legal Policy, but conducts legal policy adjustments in also response to changing conditions and new challenges in the economic, social and political life at the national and international levels, as evidenced by the introduction in mid-January 2014 ( i. e.. almost four years after the launch of the Decree and, accordingly, the Concept) amendments and supplements to the Decree of the President of the Republic of Kazakhstan, devoted to the Concept of Legal Policy for 2010-2020. .Nevertheless until the end of the implementation of another legal policy concept it is still five years we can see progress and problems in the implementation of both current and previous concepts, aimed at further democratization of the institutions of the state and society. In particular, for the past years after the date of approval of the current Constitution most important legislative acts were adopted which had a really positive impact on the development of the state and public institutions, thereby ensuring sustainable socio-economic development of the Republic of Kazakhstan. However, not all plans have been realized. So, the full implementation of juvenile justice has not yet been completed but the legal basis for this is prepared. .However, during the implementation of the Concept there was a noticeable upgrade of the main branches of the national legislation: constitutional, civil, administrative, tax, banking, finance, customs, environmental, criminal, criminal-procedural and criminal-executive legislation. Over the years, new codified acts have been adopted including the Forestry, Land, Customs, the Water Code (2003), Labor and Environmental Codes (2007), Budget and Tax Codes (2008). Largely thanks to this it was possible to bring the rule-making process in the country to a new quality level. .Among the measures taken by the State in order to ensure the progressive development of the country we can note a long-term planning of legislative activities; introduction of scientific expertise of draft regulatory legal acts, in particular legal, anti-corruption, criminological examination, as well as full financial support of adopted laws that is also very important. It should be separately mentioned about the Law “On amendments and supplements to the Constitution of the Republic of Kazakhstan” taken in 2007, which has strengthened the role and, at the same time, the responsibility of house of parliament for the state affairs. According to V. A. Malinovskiy, “constitutional reform is not an end in itself, even in terms of stiff competition for the presidency in the Organization for Security and Cooperation in Europe. It is the tool of the activation of political life in terms of unconditional preservation of controllability country, the loss of which is fraught with highly sensitive negative consequences” [3, p. 43.]. So, let’s pay attention to that one of several components of the values of the Constitution is the stability of legal regulation, while the other component of its value at the same time is the need to meet the urgent needs of social development. The constitution of any state (of course, if it is not fictitious) develops and lives a life with the country. The development of any Constitution is going by adopting the legislation, specifying the constitutional provisions, interpreting in acts the bodies providing the legal supremacy of the Constitution by the introduction of amendments and supplements. .Meanwhile, the first two ways of the Constitution development are limited by the letter and the spirit by the text and meaning of the Constitution itself, and the third allow to change the Constitution itself, which gives to it the opportunity to respond to the new challenges not-existing before. That is why every constitution needs to be amended from time to time, but the need for such amendments should be really escalated in

52 order to unreasonably frequent changes of the Constitution did not violate the stability of the legal regulation. The Constitution of the Republic of Kazakhstan is amended periodically, but not often, and it is due to changes in the social and political life of the Republic, and fits perfectly for the current Constitution. Of course, the gradual implementation of the policy of dialogue development and interaction between civil society and state institutions and the development of local self-government are important, that affects and will positively affect in future on the state of society and country as a whole. As M. A. Abisheva noted “gradual democratization of the social system is considered as a necessary condition for growth and competitiveness of the state and nation. Here the assessment of the potential and resources of the current Basic Law, within the framework of which political, economic and social modernization of society are carried out, occurs expectedly” [4, p.29.]. Interaction between civil society and public authorities’ institutions is in present terms the real foundation of sustainable democracy. The essence of the relations of such phenomena as the society and the state, is revealed in famous work of M. T. Baymahanova “Мемлекет және құқық негiздерi” (The state and law foundations) [5], and yet the specifics of democracy in each country and each historical period requires the disclosure and working out the specific forms and methods of direct and feedback connection of freely forming during functioning of civil society entities and bodies, which together carry out the state power on behalf of the people of the state. Meanwhile the adequate development of the cooperation of civil society and public authorities in terms of situation and conditions require an appropriate legal framework. Therefore, ensuring the regulatory of specified cooperation should be one of the cardinal directions of legal policy. The legislation in this field in Kazakhstan is being adopted, but provisions on ensuring the full regulation of the cooperation of civil society and public authorities’ institutions, as it seems, is still quite significant. As it was noted above, changes in the Constitution of the Republic of Kazakhstan touched clarification of authorities of certain government bodies. According to successful remark of V. A. Malinovskiy, “the analysis of the place and role of a particular structure in the state mechanism is intended to clarify the purpose, functions, status and forms of the body, in other words its institutional capacity along with other regulatory institutions; and also involves the development of measures to support the management structure in conditions, which allow use this potential with the greatest return” [6, p. 13]. This approach allows build a legal policy in the sphere of state construction by modifying the functional and institutional components of the mechanism of power execution towards the improvement to resolve tasks changing from time to time. Verified legal policy allows to adjust the distribution and redistribution of powers between government authorities and levels. Let’s note that the special place in the mechanism of power takes the local government as a basic level of democracy. .The result of the local government development, according to the current Concept of Legal Policy, will be the increase of the population activity in issues of local importance and effectiveness of local solutions. It is worth noting that the concept for 2010-2020 includes a provision according to which in order to build an effective system of state administration and self-government this work will be carried out simultaneously with the further activities, functions and responsibilities separation among the various government levels. Here improving the legal regulation mechanisms is largely related to the introduction of information technology in the process of law-making and law enforcement, as well as scientific investigation. The Constitution plays a key role in both the elaboration and the implementation of legal policy. M. T. Baimakhanov wrote: “making the core of all regulation system Constitution should promote the formation of a democratic civil society and legal state, strengthening the independence of the country, revival of its economy and culture, improving the individual status” [7, p. 362]. All at once the Constitution is the foundation of the Concept of Legal Policy and one of the objects to which it is directed. .In addition, suggested Concept offers the right approach to the examination of draft laws, regulatory fixing all kinds of scientific and legal investigations, allowing “in the course of law-making process to provide a

53 full account of financial, economic, social and political consequences of the regulatory legal acts adoption”. So the development of scientific investigation will help to solve the problem of the preparation of regulatory legal acts drafts that meet the current conditions and further prospects of the state and society development. .There is also no denying that the constitutional control plays the important role. This refers to all states, as, despite the specifics in each country relating to the characteristics of their state-legal development, the most important task of the constitutional control is always one. The task is the realization of checking the compliance of adopted and practiced regulatory legal acts with the Constitution, as well as the adoption of appropriate measures upon detection of certain non-conformities. Of course, we should mention that at the constitutional level there was continued the policy on strengthening the independence of justice in the administration of justice in the judicial and legal reform, as well as on humanization of the court. In particular, the judicial sanctioning of arrest it has been introduced, the constitutional ban on possibility of the investigation conduct by the prosecutor’s office and the court is excluded, the scope of the death penalty in fact, terminating its application in Kazakhstan has been significantly limited. The concept focuses on the use of international standards, as well as on the “maximum pragmatism that would take into account not only own experience and practice, but, if necessary, borrow other institutions similar to our national interest, even if they are not quiet typical for us, legal systems that have proven their real effectiveness”. In modern world as a whole there is tendency of borrowing institutions, some other legal systems, convergence of different legal systems, however any successful borrowings of the right are possible only on the basis of a rigorous study of the issue, examination of the conditions in which borrowed legal institution works, comparing them to those in their the country, adaptation of foreign institution to the domestic legal system and to the conditions in which the institution will have to work in the state - recipient. Of course, planned implementation of the tasks will allow the Republic of Kazakhstan to achieve a quite complex stated and important strategic goal - to enter the number of thirty most developed countries in the world by 2050, which is possible only in terms of a legal system ensuring the supremacy of law, respect for the rights and legitimate interests of state citizens, improving their quality of life and sustainability of the state.

REFERENCES: 1. N. A. Nazarbayev Kazakhstan on the threshold of XXI century. Almaty: Oner, 1998. 2. Legal Policy in Russia: Theory and Practice. / Ed. N. I. Matuzova and A.V.Malko. M .: TC Welby, Prospectus Publishing House, 2006 (see “Legal Policy under legal reform in contemporary Russia” author A.V.Malko). 3... V. A. Malinovsky “Kazakhstan: with the amended Constitution to a new world” // Конституциялық реформа – Қазақстан дамуындағы жаӊа кезеӊ. 22 мамыр 2007 ж. Constitutional reform - a new stage in the development of Kazakhstan. May 22, 2007 Almaty KISS under the President of the RK, 2007. 4.. M. A. Abisheva “Prospects of the development of the party system of the Republic of Kazakhstan in the light of the constitutional reform”. 5. М.Т. Мемлекет және кұқық негiздерi. Алматы: Жетi жарғы, 2001, 5-7 б. («Коғам және мемлекет»), 75-76 б. («Мемлекет және коғамдық ұйымдар») 6. V. A. Malinovsky “The President of the Republic of Kazakhstan: power and security activities tools”. Al- maty: AIO-GSW “Adilet”, 2003. 7. M. T. Baimakhanov Selected works on the theory of state and law. Almaty: AIO-GSW “Adilet”, 2003.

54 George Krol – Ambassador of the United States of America to Kazakhstan

his year, Kazakhstan commemorates the twentieth anniversary of its constitution. I would like to take this opportunity to congratulate the government and people of Kazakhstan on this important achievement Ton their path to building a society and a government based on the principles of rule of law and respect for the constitutional rights of all citizens of Kazakhstan. The United States of America is proud of having the oldest written constitution that continues to be the basis of our government to this day. It was conceived and ratified by the States in 1787. Over the ensuing two hundred years, it has been amended 26 times to reflect changes in American society. While historic, the Constitution of the United States remains a living document and continues to be debated including in judgments of our Supreme Court that affect the lives of all Americans. Though the original Constitution, written on parchment over 220 years ago, now sits protected and on display in our National Archives, the Supreme Court Justices continue to quote from it directly in many of their rulings. In 1787, the founders of the American state found it necessary to establish a constitution “ to form a more perfect union.” Having achieved independence from Great Britain, the union of states encountered great difficulties developing a coherent form of government that could help ensure the security and prosperity of the people. A convention was held in Philadelphia to come up with a document that would in effect create the federal government of United States that would function on behalf of all the states of the Union, large and small, North and South. The constitution was hotly debated and some distinguished Americans at the time criticized the fact that the Constitution did not contain a declaration of the rights of citizens. For this reason, the first amendment

55 to the new Constitution set forth a “Bill of Rights,” that guarantees the right of citizens. The Constitution also initially took into account the institution of slavery, but it took a bloody civil war to amend the Constitution to make slavery unlawful. In later years more amendments were made to the constitution, including to allow women the right to vote. These changes were not easy to achieve and required the strenuous efforts of nongovernmental organizations and dedicated individuals, who often suffered greatly and were detained and even gave their lives to effect changes to the Constitution and enshrine rights Americans now enjoy. The American Constitution has fine words, but it is the responsibility of the government, of the courts, of the Congress and ultimately of American citizens to ensure that its fine words are implemented in practice. The implementation of the American Constitution is the history of America. The Constitution of the Republic of Kazakhstan, like that of my country, is a document of fine words and contains not just the mechanics of government, but most importantly, it sets forth the rights and aspirations of the citizens of Kazakhstan. It is a great achievement for a state that recently secured its independence and is attempting to create and maintain a prosperous, stable, peaceful society for all its citizens. Implementing the Constitution of Kazakhstan is and will be the history of the Republic of Kazakhstan. It is therefore my hope and the hope of all Americans, who are friends of Kazakhstan that on the twentieth anniversary of its constitution, the government and people of Kazakhstan will rededicate themselves to securing and implementing the fine principles contained in the constitution of the Republic of Kazakhstan. In this effort, the United States is a ready partner to Kazakhstan and the history of the United States Constitution an example to study.

56 Natalia ZARUDNA – Head of the OSCE Programme Office in Astana

COOPERATION OF THE OSCE AND KAZAKHSTAN IN THE CONTEXT OF THE DEVELOPMENT OF MECHANISMS OF CONSTITUTIONAL CONTROL AND LEGAL REFORMS PERFORMANCE

he Organization for Security and Cooperation in Europe, which celebrates its 40th anniversary this year, from the beginning of its activities has given priority to legal reforms and constitutional formation, se- Tcurity sector reformation and the provision of tools for their implementation. The basic principle of the OSCE states that compliance with fundamental human rights and freedoms is a guarantee of stability and security and through the achievement of human security the security of society and state is achieved. In this context the issues of the supremacy of law and constitutional legitimacy, which are at the junction of the political and military, economic and environmental and human dimensions of the OSCE, are considered in terms of security and stability, appropriate government, mutually beneficial trade and economic relations, investment guarantees, the success of the fight against corruption and organized crime. The development of the system of justice and the relevant legislation, without exaggeration, are the basis for political, economic, social and environmental development of any member state. This is confirmed by the documents adopted within the OSCE, which have established the conviction that full respect of human rights and fundamental freedoms and the development of societies based on pluralistic democracy and the supremacy of law is a prerequisite for progress in part of the creation of stable atmosphere of enduring peace, security,

57 justice and cooperation. Member States solemnly declared that “the obligation of the government and public authorities is to comply with the constitution and to act according to the way consistent with the law”, refer to the number of elements of justice which are essential for the full expression of the inherent dignity of the human person and equal and inalienable rights of all people [1]. The Council of Ministers of OSCE member states in 2008adopted the resolution “On further strengthening the supremacy of law in the OSCE region”, according to which all member states shall comply with its international and legal obligations, including those adopted within the framework of the OSCE, concerning the supremacy of law at the international and national levels and in all aspects of the legislative, administrative and judicial powers. The Astana Commemorative Declaration, signed on the results of the summit in 2010, Kazakhstan among the participating countries has reaffirmed its full commitment to the norms, principles and obligations of the OSCE fixed in the Helsinki Final Act, the Charter of Paris, the European Security Charter and all other documents of the Organization. It has confirmed the responsibility for their full and faithful implementation, including in issues of the rule of law and adherence to the Constitution. As it was repeatedly emphasized within the framework of the OSCE, the effective constitutional control plays a key role in ensuring the supremacy of law and can be carried out solely by impartial bodies of the constitutional justice or supervision. Constitutional courts play an important role in ensuring the rule of constitutional provisions and the implementation of international obligations, including human rights field. The bodies of the constitutional control use unique methods of reasoning and make decisions which, in most cases, are final and binding. It is crucial that, while recognizing certain law or executive act as unconstitutional, the court should not impose a punishment on the government or other authority, but pointed out for the political branches of government which action or decision is incompatible with the constitution. Nevertheless the OSCE member states have different institutional models for ensuring compliance with the constitutional laws their constitution bodies play a key role in protecting the supremacy of law and are the guarantors of the constitutionality of laws. Thus, they maintain stability, harmony and order in legislation and contribute to the protection of the constitutional principles and the rule of law. [2] The principle of the rule of law, interpreted in the context of the OSCE human dimension, requires from the constitutional courts or councils to interpret national constitutions in the mood of “the highest value of the human person”, proclaimed in the final document of the Copenhagen Meeting of 1990. In this regard, the OSCE mission in Kazakhstan traditionally refers the democratic aspects of the justice and law enforcement, including constitutional one, to the priority themes of its activities. Implementation of the provisions of the Constitution, in practice, answerability of government, especially power-wielding and law enforcement agencies, the transparency of their work and professionalism of the justice system officers is a key factor in increasing the confidence of the citizens and, accordingly, in reducing the tension and the conflict potential in society, crime prevention, and achieving the public order. Not without reason, Switzerland has chosen the motto of its presidency in the OSCE in 2014 “Creating a security community for the benefit of everyone” [3]. Our office in Astana, taking on board this motto continues a deliberate and multifaceted work within the comprehensive concept of security. In collaboration with the Office for Democratic Institutions and Human Rights (ODIHR) and the OSCE Secretariat, we pay serious attention to the issues of the development of necessary legislative basis for legal reforms, training and retraining of law enforcement and the judiciary officers, the introduction of modern methods of work with the public and the exchange of best experiences, and promoting the international cooperation in order to overcome transnational threats and challenges in the OSCE space. Our Office is actively cooperating with the Supreme Court, the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption, the Prosecutor General’s Office and other law enforcement agencies

58 and the Parliament of Kazakhstan on the issues of the development of national legislation in accordance with OSCE principles and commitments, and strengthening the capacity of state bodies of Kazakhstan with the purpose of its practical implementation. One of examples of close cooperation with our partners has been conducting over the past few years of various activities and implementation of initiatives on the reform of the Criminal, Criminal Procedure and the Criminal Executive Code. We have supported the requests of state bodies on the promotion and facilitated expert meetings, public debates and conferences of various formats with the participation of civil society, national and foreign experts, as well as organization of trips on the study of the experience of the criminal law field in the OSCE countries. A special place among our partners is taken by the Constitutional Council of the Republic of Kazakhstan. Since the opening of the OSCE mission in Kazakhstan in 1999, we have established close cooperation and exchange information with it. In recent years, this cooperation has become systemic, especially in the context of the reform of the criminal justice system. In 2012-2014 the Constitutional Council, in cooperation with the General Prosecutor’s Office, the National Centre for Human Rights and the Supreme Court actively participated in numerous events held with our support, to prepare new editions of criminal, criminal procedure and the Criminal Executive Code, taking into account international standards. Our mission has repeatedly assisted in conducting legal review on specific issues of Kazakhstan’s legislation, including upon the request of the Constitutional Council. Thus, in 2012 in response to an appeal of the head of the Constitutional Council with a request for a legal review, the OSCE/ODIHR on the basis of international legal instruments prepared the conclusion [4] on two issues concerning the calculation of time limits established in the Constitution of Kazakhstan. This request followed the appeal of the Prime Minister of the Republic of Kazakhstan Constitutional Council on the official interpretation of the Constitution. Separately I would like to note the annual participation in the August readings, the conference devoted to the Constitution Day of the Republic of Kazakhstan, the number of international participants is increasing annually, as well as increasing its authority in the country and abroad. Fundamental political and legal document of the sovereign Kazakhstan, the Constitution in 2015 will celebrate its 20th anniversary that by historical standards is a relatively short period for the basic law of any country. But Kazakhstan in its constitutional development over 20 years managed to achieve a lot. Today it is already possible to confidently assess a successful role of the basic law in the achievement set goals, as well as its implementation. Kazakhstan Constitution has survived the test of time and practice, and has undeniable achievements. At the same time the law requires development, because life does not stand still. Protection of the constitutional values is everyday work on putting into action of the highest ideals. The Chairman of the Constitutional Council in one of his speeches stated: “The constitutional order and the constitutional law do not exist by themselves. They also need protection and defending. And public authorities and institutions, organizations and citizens are called to provide this. Of course, a special responsibility falls on the special state bodies: bodies of constitutional control solutions of which promote the establishment of the principle of the supremacy of law and strengthening the constitutional legitimacy in country” [5]. Constitutionalism and constitutional control mechanisms as the highest stage of the legal system of the country, certainly, should get even greater development for the implementation of the fundamental elements of the rule of law and the system of checks and balances that ensures the distribution of state power between the executive branch, a representative parliament and an independent jurisdiction. I would like to mention another important point. The Constitution is a document of direct action. In this sense, like any other document defining a long-term vision of the development of the national legal system, the state and society, it has great potential for its direct application by the authorities and the judiciary system. It is the practical implementation of the norms and principles of the Constitution as the basic law makes

59 a difference and proves its special status. It is here the potential of strengthening the work on the implementation of constitutional principles, standards and safeguards contains. It is important to encourage local executive authorities and local courts to due and proper use of the Constitution as the fundamental law of the state. After all, the level of understanding, respect and observance of the Constitution by ordinary citizens at the local level, in every corner of the country is an indication of the legal nature of the state and society. Respect for the constitutional rights is the basis of statehood. The Constitution requires the full, unconditional and effective execution anytime and anywhere, from the police station and meeting venue, proces- sion or picket, and ending with the offices of highest government officials. For its part, OCSE Programme Office in Astana is ready to continue making a contribution to assist Kazakh- stan in the development of democratic legal institutions that require a consistent and immediate implementation of the principles contained in the Constitution of your country. Laid foundation for the cooperation with the OSCE and Kazakhstan, first of all, with the Constitutional Council fuels confidence that the principles and ideas of the supremacy of law, discussed earlier in this article, will find their direct continuation in the work of the main body of constitutional control, but also will give a new impetus by attracting the expert and resource potential of all 57 member states of the organization. I hope that every year such cooperation will deepen, bringing mutually profitable benefits to all participants of the cooperation process within the OSCE framework. I would like to congratulate our colleagues and partners, and all Kazakhstanis on the twentieth anniversary of the Constitution. Let me to wish you the full implementation of the inexhaustible potential of the Constitution in all spheres of life, the successful progress towards the strategic goals of development and implementation in practice the ideals and principles laid down in the basic law of your country at the dawn of its independence.

REFERENCES: 1. Document of the Copenhagen Meeting on the Human Dimension of the CSCE in 1990, §5.3. 2. Proceedings of the Seminar on the Human Dimension “Constitutional Justice”, Warsaw, 2008 3. Priorities of the Swiss Chairmanship of the OSCE in 2014, http://www.osce.org/ru/cio/111182 4.. See The conclusion of the OSCE/ODIHR for the calculation of time limits in the Constitution of the Republic of Kazakhstan, http://legislationline.org/ru/search/runSearch/1/type/2/country/21 5. Address of the Chairman of the Constitutional Council I. I. Rogov “The interaction of the Constitutional Council of the Republic of Kazakhstan with the branches of government power in the area of constitutional legality security” at the 2nd Congress of the Association of Asian Constitutional Courts and equivalent institutions (AACC), Istanbul, April 27 - May 1, 2014.

60 Riccardo MIGLIORI – Honored chairman of the OSCE Parliamentary Assembly

he Constitution of the Republic of Kazakhstan of 1995 amended in 1998, 2007, 2011 is a kind of moral and political identity card of the country. This set of sample values, the DNA of this Central Asian country, reflected Tin the Constitutional paper, reflects not only the soul and cultural characteristics of the people, but the future and ambitious aspirations. It is not fortuitous that this document permanently and to a large extent refers to “future generations”. The desire to create on the basis of principles and values that regard not only the current generation of the government, but also look far into the future. It is this desire and healthy ambition run the President of Kazakhstan Nursultan Nazarbayev to prepare his Address to the people of the country, which can be considered as a kind of “road map” leading to the magnitude of the future of Kazakhstan and, therefore, mostly aimed at and for the younger generation. .The ideals of liberty, equality and harmony, which fill the Constitution, now compose the prerequisite for an unprecedented modernization process of the country, for its leading role at the international stage, for its political leadership in the international community. All of this is also possible thanks to the Constitution, not only in the context of the expression of sample, democratic and secular values, but also in terms of organization of the state. Presidential form of government allowed the country to use the principles of “ruling democracy” as a driving force in the modernization process and construction of well-being of Kazakhstan’s nation, more general at the social level. Presidential government has not prevented, but rather guaranteed the execution of fundamental constitutional rights recognized for all citizens, and is a guarantee of even more significant implementation in the future of those “diversities”: the ideological and political, guaranteed by Article 5 of the Constitution of the Republic of Kazakhstan. Human dignity is indefeasible, that is said in Article 17 of the Constitution, and these premises cause specific, individual rights of citizens, including freedom of conscience, on which Article 22 of the Constitution refers. The Constitution of Kazakhstan is a model and on a social level. The right of ownership, including, of course, heredity is guaranteed for companies and private businesses, which in its turn can be considered the result and continuation of “natural” rights and freedoms of citizens. The role of the family, motherhood, childhood, disability, health and pension system is not put aside. I am sure that the basis of all these principles the balance between executive, legislative and judicial branches of government will be determined more and more. As honored chairman of the OSCE Parliamentary Assembly, I am grateful to Kazakhstan for its excellent chairmanship in the Organization in 2010, for the Summit of heads of state and of the member states, held in Astana, and especially for the intervention allowed to overcome the crisis in Kyrgyzstan, which helped to prevent loss of life and even more terrible destruction that might have occurred. The entire international community is grateful to Kazakhstan for example in the development of inter-religious dialogue, for ensuring freedom of speech and the opportunity to confess the religion for every citizen. And it is also a victorious outcome of the Constitution of Kazakhstan, which will celebrate the 20th anniversary, but which will also be young and relevant after years.

61 Gunārs Kūtris – Substitute member of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), Deputy Secretary of the Presidium of the Saeima of the Republic of Latvia, President of the Constitutional Court of the Republic of Latvia (2007-2014)

The Role of the Constitutional Council in the Development of Democracy and the Rule of Law

uring the period that I served, as envisaged by law, as a Justice of the Constitutional Court for ten years and headed the Constitutional Court of the Republic of Latvia for seven years, I was given the Dpossibility not only to observe, but also to become actively involved in improving the legal system of the state of Latvia, ensuring constitutional values and safeguarding human rights and fundamental freedoms. At the same time I had the opportunity to follow the developments in the democratic and legal processes in various states [1]. My opinion, undoubtedly, cannot claim to be absolutely objective. Quite naturally, it is subjective, even though it is based on the valid legal regulation, the constitution of the state, information about constitutional review in a particular state, information about the rulings and judicature of the institution, which conducts constitutional review. Moreover, to a large extent the opinion is influenced by colleagues – those people, whom I have met in a particular country when fulfilling my duties of office. A number of factors influence the rule of law in a state and the respect for democratic values in it, the way human rights and fundamental values are ensured in it: the history of the state, its culture, traditions, society, education, etc. I believe that all this as a whole finds its reflection in the fundamental law adopted by the nation living in the respective state, i.e., a document, which is the quintessence of all these factors [2]. It is not only a theoretical assumption. On the basis of my own personal experience, I can assert that the development of democracy and the rule of law in a state is facilitated by the Constitution and the institution of constitutional review (in Latvia it is the Constitutional Court, in Kazakhstan – the Constitutional Council). At the same time, the realisation of the constitutional review provides the best feedback, i.e., shows the way democratic processes influence the interpretation of the Constitution and, thus, also the content of the Con- stitution itself. Numerous studies and reviews conducted by international institutions and experts have evaluated the progress made by Kazakhstan, at the same time pointing to problems and issues to be solved both with regard to the field of safeguarding human rights and ensuring the rule of law [3].

62 In 2011, Mr I. Rogov, the Chairperson of the Constitutional Council of the Republic of Kazakhstan, speaking at an international symposium in Indonesia , said that Kazakhstan during its 20 years of independence had become “the country of ascending democracy” . This is an indication of progress and the direction of development. However, in assessing the distance that Kazakhstan has covered in the course of these years, it must be taken into consideration that the development of democracy in Kazakhstan started in a comparatively complicated situation, under complex historical conditions and not at all long ago. One can upheld what has been said by the President of the Republic of Kazakhstan that building democracy and human rights is a long-term process . I would like to draw your attention to two factors that facilitate the development and progress of a state [4]. I am convinced that two important events in the contemporary history of Kazakhstan have served as a significant “turning point”, an important stimulus for moving towards a democratic and judicial state. First of all, the Constitution of the Republic of Kazakhstan, elaborated 20 years ago and adopted in a national referendum by the people of Kazakhstan and the body of constitutional review enshrined in and established by law – the Constitutional Council. A Constitution, elaborated with foresight, and the Constitutional Council, endowed with reasonable jurisdiction, which enjoys people’s trust, are important pre-requisites for the development of the state in the field of law. The life of the state, its system of law, activities of institutions of governance and courts to a large extent are defined by the Constitution, and therefore, the decisions by the bodies of constitutional review leave a significant impact upon all of it. The authority of these institutions is based upon the authority of the Constitution. Whereas the Constitutional Court or the Constitutional Council by their decisions strengthen the Constitution. They grant a real supreme power to the Constitution. The document that the people of Kazakhstan adopted in 1995 is the outcome of serious work and is connected with historical events for Kazakhstan. The book by the President of the Republic of Kazakhstan “Kазахстанский путь” has given me an insight into the history of developing the Constitution of Kazakhstan. Therefore I feel confident in saying that the adoption of the Constitution has been one of the most vivid events in the contemporary history of Kazakhstan [5]. The constitutional values of each state and nation depend upon its sociocultural particularities, which, in turn, leaves an impact upon the constitutional order (constitutional solutions included in the Constitution). And this is the reason why, as pointed out in the aforementioned book, your, the Kazakh style, your “selfhood” is reflected in all norms of the Constitution, i.e., everything that conforms with the Kazakh mentality, the past traditions of Kazakh people and the future that you have chosen to move towards to. However, the important thing is not the existence of a document that has been named “Constitution”, but the existence in the state and the abiding by a document that comprises human rights and obligations and defines the rules for establishing state institutions and their operation, i.e., a document, which forms the legal basis for the existence of a state and society and their further development. The Constitution does not exist outside the real life and outside society. And even if the Constitution does not change, the ideas it comprises may change in the course of time. It will be complete and relevant only if it is interpreted as a live document, in conformity with the particular period of time. Therefore the Constitution needs an institution that would ensure and embody its authority. The Constitution itself – both Latvian (the Constitutional Court) and the Kazakh (the Constitutional Council) – envisages an institution like this. The bodies of constitutional review function as independent creators of the Constitution, which allows ensuring the dynamics of the constitutional system, at the same time allows maintaining the stability of the Constitution. The Constitution functions and develops itself, whereas the Constitutional Council, in implementing its functions, has become a means for self-development. To use a constitution, the content of its norms must be known. The jurisdiction of the Constitutional Council defined by the Constitution of Kazakhstan, comprises

63 also the right and the obligation to provide the official interpretation of the constitutional norms. In Latvia the Constitutional Court interprets the Constitution by examining cases in compliance with its jurisdiction, i.e., by assessing the compatibility of various norms and acts with the Constitution or other norms (acts) having higher legal force [6]. The interpretation of the Constitution is open to the spirit of the time. It is directly linked with the reality; however, caution is needed for it not to become subject to short-term political ideas. It must be remembered – the Constitutional Court or the Constitutional Council do not have the right to create new constitutional norms. In interpreting these norms, the ideas of the “fathers of constitution” must be revisited, they must be analysed, at the same time also following the development of society and international commitments. The Constitutional Council of Kazakhstan in its rulings, similarly to the Constitutional Court , has noted that the Constitution should be interpreted as a whole – in examining the content of a norm, the other norms of the Constitution should also be taken into consideration . Today a democratic state can no longer be conceived without a body of constitutional supervision. Both in Latvia and in Kazakhstan these institutions have proven themselves to be an important safeguard for respecting the constitutional rights. Protection of constitutional values, influencing legislation, development of the democratic culture in society and educating have become important functions for them. Similarly to other states, also the Constitutional Council of Kazakhstan influences and to a certain extent even defines the content of law in various fields, influences both the creation of new institutions of law and improves the existing ones. The rulings by the Constitutional Council play an important role in improving the system of law. The institutions of constitutional review, in view of theirs basic task and their place in the legal system of the state, I would even say – their mission in society, unavoidably become involved in solving political issues, since they form the system of law. However, the way and the scope of doing it must be chosen with great caution. Therefore sometimes this work must be considered to be both science and art, but basically it, nevertheless, is the administration of justice (dispute resolution). And this is irrespectively of the status of the particular institution of constitutional review and its jurisdiction in a particular state. The members of the Constitutional Council, by interpreting the Constitution as a live document, which is not limited in time, ensure and embody its authority. It is involvement in improving the Constitution, which is necessary for the development of the constitutional system in conformity with the particular period of time, at the same time retaining the stability of the Constitution. Simultaneously, it is a co-responsibility for the development of one’s own state [7]. As regards the constant development of the Constitution as a constitutional necessity, I believe that it is important to note the importance of cooperation between comparative law and constitutional courts, in interpreting the Constitution of one’s own state and examining the compatibility of the norms included in it with the legal reality. It helps to understand the extent to which universal values should be included in the identity of the state, taking into consideration the history, culture and traditions of a particular state. This proves that there are values and principles, the content of which does not differ in democratic states. This helps to deal with problems that have already been successfully solved in other countries. At the same time, it should be taken into consideration that the body of constitutional review may fulfil its mission to a full extent only if, firstly, is truly independent in its activities, and, secondly, is accessible to everyone, thirdly, has been granted as complete jurisdiction as possible, and, fourthly, has authority in society, i.e., its rulings are abided by and enforced by the other branches of state power, without a special coercive mechanism. On the basis of my own experience, I would like to note that objective assessment of the situation with regard to the aforementioned pre-requisites for effective operation should be conducted regularly. Complacency should be avoided, talking about the principles of a judicial state and revoking decisions adopted by the legisla-

64 tor or adopting rulings that are perceived as being positive by society. It is worth it to carry out self-assessment, to listen to experts’ opinion, whether in the particular juridical (legal) and political context the approach to the institution of constitutional review can be improved, its jurisdiction – expanded, procedures reviewed, etc. The state has the task to move towards a situation, where the Constitution is not only respected and applied, but also would have a system that would ensure that the values included in the Constitution are also part of everyday life. A system, in which the Constitution not only defines the relationship between the state and the individual, but also furthers the socioeconomic development of the state. This development should occur naturally, because, in drafting any new concept document or adopting a new law, the Constitution acts as an imperceptible, but very influential direction marker. Irrespectively of how old or new the Constitution is, it comprises values that have evolved over generations. We should be grateful to the previous generations for the totality of values they have created, preserved and transmitted to us, on the basis of which we can build a democratic, judicial and socially oriented state. And, perhaps, thanks to the Constitution, our children and grandchildren will enjoy at the same time both the values of ancient culture and history and the benefits of highly developed democratic, judicial and socially oriented state.

REFERENCES: 1. The speech of the Chairperson of the Constitutional Council of the Republic of Kazakhstan I.Rogov at the International Symposium “Constitutional Democratic State”. July 10-14 2011. Jakarta, Indonesia “The role of the Constitutional Council in the realization of principles of the democratic state in the Republic of Kazakhstan” 2.This year Kazakhstan celebrates the 20th anniversary of its Independence. Owing to reasonable, constant and purposeful actions on consolidating the constitutionalism, Republic of Kazakhstan became the country of ascending democracy. And the democracy is not conceivable without highest lawfulness. For the years of its independence Kazakhstan seriously advanced to the achievement of this ideal. Touching upon the questions of realization of democracy principles in Kazakhstan, I would like to start my speech with highest constitutional values of the state – human rights and freedoms. Practically every normative resolution of the Constitutional Council is directed to the safeguard of specific human rights and freedoms. The Constitutional Council orients the development of legal system, lawmaking and law enforcement practice in direction of their complying with modern understanding of human rights and freedoms, consolidated in fundamental international acts. 3. President of the Republic of Kazakhstan – Leader of the Nation Nursultan Nazarbayev 4. The Moscow Times, July 1, 2013; Interfax, July 1, 2013 5. We, the people of Kazakhstan, united by a common historic fate, creating a state on the indigenous Kazakh land, considering ourselves a peace-loving and civil society, dedicated to the ideals of freedom, equality and con- cord, wishing to take a worthy place in the world community, realizing our high responsibility before the present and future generations, proceeding from our sovereign right, accept this Constitution. 6. Case of te Constitutional Court No.2000-03-01 7. Ruling by the Constitutional Council of Kazakhstan No. 6 (05.11.2009.): „Проанализировав нормы статьи 4 Основного Закона в совокупности с другими положениями и нормами Конституции Республики Казахстан применительно к предмету обращения, Конституционный Совет исходит из следующего [..] Данный вывод вытекает из провозглашенного в Преамбуле Конституции Республики желания народа Казахстана занять достойное место в мировом сообществе, а также положений статьи 8 Основного Закона об уважении Казахстаном принципов и норм международного права, о проведении политики сотрудничества и добрососедских отношений между государствами, их равенства и невмешательства во внутренние дела друг друга.”

65 Margaret Skok– Distinguished Senior Fellow at the Carleton University, the Norman Paterson School of International Affairs, Canada’s Ambassador to the Republic of Kazakhstan, with concurrent accreditation to the Kyrgyz Republic and to the Republic of Tajikistan (2006-2009)

Kazakhstan – A Vision: Mostly Uninterrupted Comments by Margaret Skok

n his Address to the Nation in December 2012, in outlining the “Kazakhstan 2050” Strategy - the Presi- dent of Kazakhstan, H.E. Nursultan Nazarbayev, stated “I am convinced that the prosperous future of our Ihomeland lies among developed countries”. This statement explains much of what underlines the vision of a young nation following the coup in Moscow on August 19, 1991 – which led to the independence of former Soviet Republics, and the December 1991 signing of the Commonwealth of Independent States (CIS) in Almaty. Landlocked, Kazakhstan was largely unknown to many in the western world. For some - Kazakhstan’s outward ambitions, its efforts to overcome previous economic hardships, and struggle for peace and freedoms appeared out of context; for others – almost heroic. Kazakhstan was never insular. Its history - founded on many empires, conquests, occupations, peoples, religions and influences, from the Saks, Scythians, Greco-Bactrians, Turks, Mongolians, the Kazakh Khanate, the Russian Empire and Soviet period – was already rooted in regional and international relations. And there was also the experience of the Silk Road, extending over 6,000 kilometres, begun during the Han Dynasty (206 BC), consisting of various northern and southern trade and cultural routes (the northern passing through Central Asia in 114 BC, including Kazakhstan) that stretched from Europe to China. Trading and regional networks are not new to Kazakhstan. The dynamic and enduring experience was recognized by UNESCO in June 2014, when the Silk Road was named a World Heritage Site. During my time spent working in the region – I had the privilege of witnessing critical contemporary history - the coup in Moscow, the struggle of many former Republics, conflict in some, and the bold transitions of others. I place Kazakhstan in the latter category. One must not be an apologist neither for history nor delays in the nature of change. But one must not become somnolent or indifferent to the lack of change, or the momentum of reforms and progress. But patient – one definitely must be. No matter which country, which political, social or economic shifts, change (even the shift of a capital, i.e. establishment of Astana as the capital of Kazakhstan), is often met with resistance. In his 1961 “The Changing Nature of Man”, Van den Berg explored

66 his thesis that “the human being changed over the course of history from the Middle Ages through the Re- naissance to modern times”, but noted the disappointingly slow changing nature of man. Nation-building may follow in tandem. Kazakhstan has had only 23 years... not even one generation. During an increasingly intertwined global environment, indeed - bilateral and international cooperation is critical to new influences, new technologies, and external contributions to economic stability, individual and collective liberties, and regional security. A current Kazakh Ambassador once wrote that it was important to discover “the mystery behind one’s destiny”. Reforms to date, the provisions of Kazakhstan’s 1995 Constitution, memberships in bilateral and multilateral organizations, OSCE past chairmanship, participation in the international reconstruction programs in Afghanistan - are significant. Kazakhstan’s peace agenda cannot be dismissed: security agreements where Kazakhstan gave up nuclear weapons, closed missile silos, converted biological-weapons production centres and destroyed nuclear test ranges. Their security, environmental and health imperatives for the successful implementation of their commitments were not a mystery following over 500 nuclear explosions, below and above ground, between 1949 – 91. Human rights provisions (for refugees, terrorists, children, discrimination on the basis of gender, LGBT, challenged and ethnic minorities) and interfaith inclusions and actions are positive. As with economic and investment provisions of the Constitution, enforcement of existing laws will remain critical. The emphasis on both urban and rural development sought to unite a country the size of three Ca- nadian provinces, creates new opportunities, and the foundation for a middle class. Continued growth and demand for Kazakhstan’s main exports – oil and minerals (according to World Bank reports), the strengthening of some market economies will continue to support healthy GDP growth, from 5.5.% to 6%. Kazakhstan’s new investment regime of June 2014, successfully implemented will have potential positive impact. The current situation around Russia’s economy could potentially negatively influence investment flows into Kazakhstan, amongst other countries. The diversification agenda (trading partners and sectors) is still a priority for economic growth. Kazakh investments in services, sports, culture and critically – education – have already resulted in solid successes – and made their mark on world stages. Kazakhstan, its peoples, Government and President are to be congratulated on achievements to date, and encouraged to determine ways and means to maintain the momentum of change. During an increasingly complex global environment – balancing bright hopes and vision with realities and barriers will remain challenging.

67 Petko GANCHEV – Chairman of the Geopolitical center Eurasia- Sofia, the Ambassador of the Republic of Bulgaria to the Republic of Belarus (2005 - 2009), Doctor of Philosophy and Political Science, professor

ON THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN

he Constitution of the Republic of Kazakhstan of 1995 as the supreme law establishes the form, nature and principles of the first sovereign state of Kazakhstan’s nation. The Republic of Kazakhstan passed from the Tform of Soviet Union republic to the sovereign presidential republic, in comparison with Bulgaria, which in its 1350 years history was a state with centralized management for 1330 years and then on conjunctural reasons moved to the form of so-called “parliamentary democracy”, the results of which are visible during the last 24 years. After the publication of the Constitution of Kazakhstan, in response to a question during a press conference: “Doesn’t the presidential form of the republic limit the democracy?”, Nursultan Nazarbayev pointed out France as an example, where a more solid form of a presidential republic is established, that in no way reduces the degree of democratic freedoms of French people. According to him, the Constitution shows that the Republic of Kazakhstan “asserts itself as a democratic, secular, legal and social state”. Thus, the Con- stitution of the Republic of Kazakhstan establishes the principle of development and ascension. For the first time in the practice of the making the Constitution as the Basic law of the society, on the proposal of the President the following principles have been set: social harmony and political stability as a major condition for the solution of national problems; economic development for the benefit of the whole society; the patriotism of all Kazakhstanis as their indigenous duty; the solution of all the problems of society in a democratic way; conducting the national referendum if it is necessary, etc. .President of Kazakhstan, Nursultan Nazarbayev, and his team realise that they could not have put these constitutional principles into life of Kazakhstani society without changing the shape and operation principles of the old public institutions of the Soviet era. Thus, instead of the Supreme Council the leading role of the President has been approved, the functions and rights of a bicameral parliament as a legislative body have been also described. At the second place instead of the Constitutional Court the Constitutional Council has been established. For the first time in Kazakhstan as in the multinational state, and for the first time in the world the Assembly of People of Kazakhstan has been established, which, through its elected deputies of the Majilis shall have the right of legislative initiative in the formation of a new society. Without any convulsion

68 the issue on the status of the Kazakh and Russian languages is being solved that offers the prospects of the revival of the Kazakh language and at the same time strengthens the ethnic diversity of Kazakhstan. For the first time the National Bank has been established, and own national currency, tenge, has been introduced. As “a legal and social state” Kazakhstan claims by the Constitution the equity of all forms of ownership, overcoming the old Soviet idea of the dominant role of state ownership, as well as the views of the neo- liberals and the fundamental role of the market and non-interference of the state. In terms of openness and economic relations globalization the Constitution affirms the role of the market and the strategic, legislative and regulatory role of the state. In order to ensure the freedom of business of the economic sphere of society the constitution approves a model of social market economy. It means participation in the extent of the competence of representatives of all production process entities in the management of this process, without value of ownership. In addition, to neutralize attempts of various naturally or artificially created monopolies in dominating the market it establishes a universal competitive order of the market functioning. Following the traditions of the people of Kazakhstan, the Constitution states that all natural wealth: aboveground and underground mineral resources belong to the people and the state forever. On this economic foundation all liberties of the citizens of the Republic of Kazakhstan are created: free health care, free secondary education, equality of all ethnic groups, religions and faiths. At the same time, when there is an activation of extremist political and religious organizations, the Constitution puts serious obstacles and thus provides comfort of citizens and the stability of social development.

69 Andrey TREBKOV – Chairman of the International Union of Lawyers

n December 1991 with the collapse of the Soviet Union a new geopolitical reality come into being. The newly independent states were formed on its territory, and the Commonwealth of Independent States I(CIS) was established. For the years of independence, Kazakhstan has achieved impressive success and today occupies a special place among the independent states emerged after the collapse of the Soviet Union. The most significant progress has been achieved by the nation of Kazakhstan in the development of market economy and the consistent implementation of democratic reforms. Kazakhstan is the permanent initiator of the intensification of integration processes in the Common- wealth of Independent States, the Eurasian Economic Community and the Shanghai Cooperation Organiza- tion. The recognition of high international authority of Kazakhstan was election of the republic as the Chair- man of the Organization for Security and Cooperation in Europe (OSCE). The Constitution is the Basic Law of the society and the state, which expresses the will of the people, having the highest legal force, fixing the foundations of the social structure, the legal status of the individual, the state structure, as well as the foundations of the organization and activities of bodies of state power and local self-government, i. e. the main source of law, characterized as the core of the whole system of legal regulation of public relations in the country. In the modern sense the constitution is a complex historical, social and legal phenomenon which in the political and legal form establishes the principles of the society and the state and serves as a pattern of democratic development of a civilized state. The term “constitution” itself is of Latin origin, it means the establishment, the foundation, the structure. Even in ancient world various legal acts were called so. The first constitutions in the modern sense of the word appeared in the XVIII century as a result of the comprehensive outcome of the victory of the bour-

70 geois revolutions, when humanity, claiming humanist worldview, realized the highest value of individual liberty and the need to limit the arbitrariness of the state and establish the limits of state power. The adoption of a genuine people’s Constitution is an indicator of the maturity of civil society and its ability to determine frames and forms of activities of the governmental power and effectively control it. The constitution of a civilized society should be an act of expression of the people’s will. The essence of the constitution, consisting in approving the general democratic principles, finds its way in the establishment of the foundations of the states, which recognize and ensure the rights and freedoms of man and citizen. The Constitution of the Republic of Kazakhstan was adopted at the national referendum in August 30, 1995 reflecting the experience of constitutional development as a democratic state; it complies with international standards of the constitutional legislation and is intended to guarantee universal human values that define its essence and content. At the international conference dedicated to the 15th anniversary of the Constitution of Kazakhstan the respected President of the country, Nursultan Abishevich Nazarbayev, told how he personally, as the president of the country, being incredibly busy, worried and responsible, worked on a project of the Basic Law, how many constitutions of various countries he studied and even recapitulated, and participated in numerous debates on the most controversial provisions of the draft. And it is a blessing that great works of all involved in the drafting of the basic laws of newly independent stateshave been crowned with such success. The result is known. Constitutions existing in most CIS countries, including the Republic of Kazakhstan, are recognized worldwide as consistent with the tasks of a democratic society; they reflect general trends of the world of the constitutional process. Human rights occupy the central place in all constitutions of the countries of the Commonwealth of In- dependent States. Their observance and protection is the constitutional obligation of the state. The former system of values, in which the state was at the top of the public of the universe, was rejected. The Constitu- tion entrenches the provision stating that the international treaties ratified by the state are an integral part of the legal system of the state, and the rights and freedoms of man and citizen are used in accordance with international human rights standards. The current Constitution of Kazakhstan has opened great opportunities for the consistent development of the country in the atmosphere of ethnic harmony and civil peace. Article 4 of the Basic Law of Kazakhstan states that it has the supreme legal force and direct action on the entire territory of the Republic that is the main source of law is characterized as the core of the whole system of legal regulation of social relations in the state. Adopted regulatory legal acts shall comply with the Constitution and not shall contradict it. In this regard, the cooperation of lawyers of different states is certainly very important, both from the perspective of strengthening the idea of the supremacy of law at the international level and from the perspective of exchange of experience and the development of the legal profession. Over these years a fruitful cooperation has been established between the International Union of Lawyers and legal structures of Kazakhstan. International Union of Lawyers on a rolling basis interacts with the Con- stitutional Council, Supreme Court, Parliament, General Prosecutor’s Office and other human rights structures of Kazakhstan. At the requests of Kazakhstan it has repeatedly provided expert and methodological assistance during the process of the reformation of individual legal institutions. This process is annually deepening. Today, members of the Union are the Kazakhstan Union of Lawyers and the Kazakhstan Criminological Association. The interaction of these structures contributes to the expansion of the format of cooperation on urgent issues of legal policy.

71 A fundamental principle of the union of lawyers, in our opinion, is, first of all, the LAW ITSELF as a universal global regulator of public relations and human behavior. When dealing with the Law lawyers constantly face the problems which always concern the state and society as a whole. A comparative analysis of the constitutions of the Commonwealth states provides the evidences of ongoing within the CIS integration, unification and harmonization of the constitutional and legal rules governing the legal status of state and social structures. The Constitutions of Russia, Kazakhstan and other CIS countries contain articles defining the constitutional foundations of public associations. For example, the right of every citizen of association is established (Article 23, paragraph 1 of the Constitution of the Republic of Kazakhstan and Article 30, paragraph 1 of the Constitution of the Russian Federation). Freedom of activities of public associations is ensured (Article 30, paragraph 1 of the Constitution of the Russian Federation). The Constitution of the Republic of Kazakhstan (Article 23, paragraph 1) says that the activities of public associations shall be regulated by law. According to the Constitution of the Republic of Kazakhstan (Article 5, paragraph 2) the illegal government interference in the affairs of public associations and of public associations in the affairs of the state and imposing on public associations of functions of state bodies are not allowed. Let’s refer to the further constitutional rules governing the legal status of public associations. For example, it is interesting to look through the provision contained in paragraph 3 of Article 18 of the Constitution of the Republic of Kazakhstan. Among other things it says: Public associations are obliged to provide every citizen with the opportunity to become familiar with documents, decisions and sources of information concerning his rights and interests. Almost all Constitutions of the CIS countries provide the equality of public associations before the law. They also provide the prohibition on the creation and activities of public organizations goals and activities of which are aimed at violent changing the constitutional order, stirring of social, racial, national and religious discords. Laws on public associations have been adopted pursuant to and in accordance with the Constitution. These laws regulate in detail the activities of public associations, including the Union of Lawyers of the Com- monwealth of Independent States. The respected President of Kazakhstan, Nursultan Nazarbayev, constantly focuses on the approach to issues of legal awareness and legal education of citizens in the current circumstances. He emphasized: “In the XXI century a successful society is a society of legally competent people”. First of all, the basis of legal literacy is knowledge of the Constitution. Therefore, an important issue of social modernization is education of the legal culture of the population. We must start with kindergarten and school and continue in colleges and universities, on every workplace. It is the task of all state bodies and national companies, employers of all forms of ownership.

72 Zakhari ZAKHARIEV – Chairman of the Federation of Friendship with the peoples of Russia and the CIS, Professor (Republic of Bulgaria)

he Constitution of Kazakhstan was one of the first signes of the emergence of new sovereign states on the political map of the world after the collapse of the USSR. In fact it reflects both social and economic Ttraditions of the Soviet system with the new realities of the time it has been adopted and far more democratic criteria regarding the social structure of the newly formed sovereign state. The most important feature of the Basic Law of Kazakhstan is a skillful combination of the main achievements of modern constitutionalism with the specifics of the Kazakhstan statehood in ethnocultural, nation and psychological, administrative and management, socio-economic terms. The great merit in this regard is of the first builder of independent Kazakhstan, Nursultan Nazarbayev. It was his inexhaustible energy; unbreakable political will and a clear vision of the development strategy predetermine the delegation of constitutional rights and responsibilities of the head of state which are typical for a presidential republic. .However, as it is confirmed by political practice, this does not limit in any way the basic freedoms of the citizens of the republic, guaranteeing them not only to the inherent right of civil society, but also high social responsibility of the state before every member of society. In this regard a particular significance is owned by constitutional provisions ensuring equality of every citizen before the law and the system of distribution of public goods as well as pluralism between all forms of ownership. It is definitely should be noted that the Constitution of the Republic of Kazakhstan is among the most progressive basic laws of the so-called “new democracies”.

73 II. LEADERS OF CONSTITUTIONAL COURTS AND OTHER STATE AGENCIES

Farhad ABDULLAYEV – Chairman of the Constitutional Court of the Azerbaijan Republic, Doctor of Law

KAZAKHSTAN YESTERDAY, TODAY, TOMORROW: FROM TOTALITARIANISM TO A LEGAL STATE

he rapid collapse of the Soviet Union to the new independent states, on the one hand, accelerated the globalization process and on the other hand strengthened the tendency towards regionalization and the Testablishment of a multi-faceted integration based on common values. In large-scale historical scope there was a transition from a socialist model of social development to new forms of economic, political, humanitarian, social and cultural cooperation. The world advanced from the bipolar structure with opposing global military-political blocs to a multipolar poly-regional system. The group of states emerged on the territory of the former USSR, began to search their place in the modern world. According to expectation, the acceleration of the integration wave in the world influenced the Turkic world. As a result of changes the independence has been gained by Azerbaijan and Kazakhstan which have such common values as the common language, religion, history and culture that objectively has caused the tendency of the development of relations between our states. The centuries-long course of history of the Kazakh-Azerbaijani relations, including within a single state, in a modern period has become the foundation of the origin and development of equal partnership relations between our countries. Both countries at this stage solve the problem of determining their status in the world policy system, building the relationships with leading world powers, joining the international legal boundaries.

74 Today Kazakhstan is one of the largest states of Eurasia, a significant subject of international policy. The favorable geopolitical location, initiatives assigned to it to a certain extent the role of regional leader, as well as other important features make it a notable phenomenon at the international political stage. It is significant that inter-relations between Azerbaijan and Kazakhstan for both sides have a paramount importance for the further development of the Eurasian concept, and they are able to play a positive role in solving many problems of the internal nation-state development. Such experience mutually enriches our countries and peoples, intensifies in new terms the traditions of long-standing fellowship. Since independence, our countries have mobilized efforts to minimize the damage from the disintegration processes and to build their relations on the basis of common interests, good neighborliness and mutual respect. Modern political relations between Azerbaijan and Kazakhstan were established in August 30, 1992. Relations between our countries are based on several basic levels. Bilateral relations are priority among these. Over the last 20 years between the two countries more than 90 documents have been signed in the sphere of politics, economy, culture and security. Over the years of independence Kazakhstan has become for Azerbaijan, one of the main partners, holding an impartial, balanced position on the Karabakh issue, which is very much appreciated by our nation. As far as back in October 1991 the President of Kazakhstan, Nursultan Nazarbayev, showed the first initiative on mediation between Armenia and Azerbaijan. During the leadership of he national leader of Azerbaijani people the President Heydar Aliyev the relations with Kazakhstan moved to a new level. In his speech at the meeting of September 16, 1996 the President Heydar Aliyev said: «... Now when Kazakhstan and Azerbaijan are independent sovereign states, our relationship began to have a new nature and we have great opportunities and a need for deepening and developing these relations. Azerbaijan is interested in this. I put great hopes on this visit from the perspective of our relations...” It should be noted that the visit was really fruitful. Within the framework of the visit, the Treaty on Principles of Relations between the Republic of Azerbaijan and the Republic of Kazakhstan was signed. The document emphasized that the parties built relations as friendly states, and develop cooperation in the political, economic, commercial, scientific and technical, environmental, cultural and other fields on the basis of respect for independence, sovereignty, equality, mutual benefit and non-interference with the internal affairs of each other. The agreement also noted that the parties will not participate in any alliances or blocs directed against their interests, they will not allow the use of their territories, communications systems and other infrastructure for the implementation by the third state the aggression against the other party and will not provide any assistance to third states in an armed conflict with one of the parties. .According to the results of another visit in April 2000 a Joint Declaration of the President of the Republic of Azerbaijan Heydar Aliyev and President of Kazakhstan Nursultan Nazarbayev was signed, which stated that the Republic of Kazakhstan and the Republic of Azerbaijan affirmed their determination in the XXI century to take further steps towards cooperation buildup, to give a new the nature to the process of the Kazakhstan- Azerbaijan dialogue in the political, economic, cultural, humanitarian and other spheres. During the years of the leadership of Heydar Aliyev both countries successfully cooperated in a number of formats, including the summits of Turkic-speaking states, ECO and others. The President of the Republic of Azerbaijan Ilham Aliyev successfully continues to adhere to developed line of foreign policy. During his official visit in March 2004, heads of states Ilham Aliyev and Nursultan Nazarbayev noted a great importance of large-scale projects implemented in the oil and gas sector, and in particular the participation of Kazakhstan in the project Baku-Tbilisi-Ceyhan pipeline. In October 2011, the President of the Republic of Azerbaijan Ilham Aliyev and President of the Republic of Kazakhstan Nursultan Nazarbayev signed the “Joint Declaration of the President of the Republic of Azerbaijan and the President of the Republic of Kazakhstan”.

75 During the signing ceremony Mr. Ilham Aliyev said that Azerbaijan considers Kazakhstan as a close strategic partner. Mr. Nursultan Nazarbayev, in his turn, called Azerbaijan a major economic and political partner in Caucasus region. He noted that Azerbaijan and Kazakhstan are neighbors across the Caspian Sea and the Caspian Sea is a transport artery for exit of Kazakhstan to the Caucasus, the Black Sea and Europe. At the same time, President Nazarbayev stressed that Azerbaijan and Kazakhstan have common roots and belong to the Turkic world that should be used for closer cooperation between the two countries. Along with the fruitful inter-state relations the cooperation in the legal sphere is developing. In this context, I would like to dwell on the issue of the cooperation of the Constitutional Court of Azerbaijan and the Constitutional Council of Kazakhstan. Our constitutional control bodies are bound by longstanding cordial relations. Constitutional Court of the Republic of Azerbaijan with great interest observes the practice of its Kazakhstan’s colleague. As it is known, in accordance with the № 283Decree of the President of the Republic of Kazakhstan dated March 13, 2012, the Republic of Kazakhstan has become a member of the European Commission for Democracy through Law (the Venice Commission of the Council of Europe). The main goal of this Commission is the cooperation of the constitutional control bodies in promoting the fundamental values of a legal state, human rights and democracy; in enhancing the functioning efficiency of democratic institutions and the implementation of the supremacy of law; in the consolidation of fundamental rights and freedoms, particularly those relating to the rights of citizens in participation in the activities of public institutions; in expanding the contribution of local and regional government bodies in the development of democracy. Since April 24, 2013 the Constitutional Council of the Republic of Kazakhstan has been a member of the Association of Asian Constitutional Courts and equivalent institutions, the regional open area of constitutional justice bodies in Asia countries on promoting common human values: democracy, human rights and freedoms. Thus, our constitutional control bodies are cooperating both at the bilateral level and within international organizations. Constitutional Court was in Kazakhstan before the adoption of the 1995 Constitution, however, in accordance with the new Basic Law there was established the Constitutional Council, as the body of the constitutional control. The principal difference between the Constitutional Council of the Republic of Kazakhstan from its predecessor is that for the most part it carries out not judicial functions, but the function of constitutional review, including the main function, which is such assignation of the Constitutional Council as ensuring the supremacy of law on the entire territory of Kazakhstan. Legislative activity of the Constitutional Council is very essential for the protection and operation of the Constitution as a “living law”, for the real constitutional legitimacy. As one of the main principles of the functioning of a legal state, and as the basis of life activities of civilized society, rule of law helps to ensure the public interest, the protection of human rights and freedoms and the maintenance of law and order in the country. It implies both a clear, detailed regulation of activity of state bodies and strict observance and implementation of the laws and other regulatory legal acts. The legitimacy provides the formation between the government and citizens relationships built solely on the basis of laws, and the obligation to comply with them falls on both sides. Compliance with the rule of law in a legal state imposes a number of requirements, not only to entities that implement the personal rights and freedoms, but also to the quality of law-making activities of the government, clarity and consistency of the existing legislation. State of law is directly connected with the implementation of the principle of the rule of law, and its mode is associated with the real provision of basic human rights and freedoms. Analysis of the main provisions of the Constitution of the Republic of Kazakhstan, as well as the legal positions of the Constitutional Council gives a foundation to the determination in the concept of the rule of law a number of components that can be interpreted as the basic principles of the rule of law in the Republic. The principle of supremacy of the Constitution, the principle of the primacy of human rights and

76 freedoms and the principle of separation of powers main constitutional principles should be referred to the main constitutional supremacy principles. The acquisition of state sovereignty and the formation on the political map of the world of independent Kazakhstan caused the need for the production of the domestic model of state and government organization. The country entered a period of radical transformations. President Nursultan Nazarbayev defined the prospect of the formation process of a modern Kazakh statehood adequate to the modern level of development of civil society and the development of democratic institutions of the government as an essential element of the state. Just for a few years of independent development the Republic of Kazakhstan has established itself as a truly democratic state, citizens of which feel full members of the free civilized society. The beginning of the first stage of the formation of the modern Kazakh state and development of the government form was the adoption of the Declaration of State Sovereignty of the Kazakh Soviet Socialist Republic in October 25, 1990. The Declaration gave to the Kazakh SSR the state power, supremacy, independence, completeness within the Republic, as well as in external relations, defined the Union treaty. January 28, 1993 the Supreme Council of the Republic of Kazakhstan adopted the first Constitution of the sovereign and independent state, which had a great importance in strengthening the state independence of Kazakhstan, the creation of new bodies of the state, intended to serve the people and expressing its will in proclamation of broad rights and freedoms of citizens, etc. Along with that the Constitution of the Republic of Kazakhstan of 1993 could not reflect the problems existed in the new state. These included the issues connected with public and economic life, human rights and freedoms, etc. The issue of the government system was not finally resolved. The President had been limited in his rights that did not allow him to pursue an independent policy on the implementation of reforms that is why the social life itself raised the issue on the review of the Constitution. Under the leadership of N. A. Nazarbayev, a draft of the new Constitution was prepared and as a result of the nationwide vote a new Constitution of the Republic of Kazakhstan was adopted in August 30, 1995. The Constitution of the Republic of Kazakhstan is the core of a legal system of the state, the basis of the entire legislation. Apart from the fact that the Constitution of the Republic of Kazakhstan establishes the competence of various public authorities for rulemaking, defines the main objectives of this rulemaking, the spheres of public relations, which should be regulated by constitutional laws, rules, decrees of the President, regulatory legal acts of state authorities of the Republic of Kazakhstan, it contains many basic provisions for the development of other branches of law. Thus, the civil legislation is built taking into account the constitutional principles of diversity and equality of forms of property, common economic space, freedom of economic activities and entrepreneurship, support of fair competition (Art. 26, 88, 89, and others). Labor legislation is built on the basis of the constitutional provisions on freedom of work, right to rest, to paid annual rest, grievance procedures and other (Art. 24). Family law legislation cannot ignore the provisions of Art. 27 of the Constitution of the Republic of Kazakhstan on state protection of the family, motherhood and childhood, basic rights and duties of parents and children, etc. It is necessary to state that in any truly democratic country, the Constitution of the Republic of Kazakhstan is the main source not only of constitutional law, but also of all other sectors of Kazakhstan’s legal system. Thus, the Constitution of the Republic possessed the supreme legal force and stability, fixing and regulating the basic social relations in the sphere of legal status of the individual, civil society, the organization of the state and public authority functioning, is an act, initiated a new stage of constitutional development of an independent, sovereign state of Kazakhstan. As a result of social and economic, spiritual and legal development of society at a certain stage the Constitution has become a document fixing the level of democracy reflecting the rights and freedoms of the individual in the society, fixing the attitude to the property and the forms of ownership that characterize the social activity of the people and the political system, a document determining the state’s role in economic and social life.

77 According to Article 4 of the Constitution, the law in force in the Republic of Kazakhstan are the norms of the Constitution, the laws corresponding to it and other regulatory legal acts, international, contractual and other obligations of the Republic, as well as regulatory resolutions of the Constitutional Council and the Supreme Court. The Constitution has supreme legal force and direct effect on the entire territory of the Republic. The content of the norms on the supremacy of the Basic Law is disclosed in a number of decisions of the Constitutional Council. Thus, № 6/2 judgment dated May 7, 2001 states that the main legal document regulating the behavior of all subjects of legal entities is the Constitution of the Republic, which has the highest legal force on the territory of the Republic. Several decisions of the Constitutional Council stress the principle of supremacy of the Constitution on the territory of the Republic indicate the obligation of its corresponding to international agreements (dated October 28, 1996 № 6, dated March 6, 1997 № 3, dated June 15, 2000 № 8/2, and October 11, 2000 № 18/2). With the adoption of the 1995 Constitution a period within which there was a turn of the legal system to recognition and guaranteeing the rights and freedoms as the supreme value began in Kazakhstan (paragraph 1 of Article 1 of the Constitution). The Constitution established a new concept of legal situation of the individual. The basis of Kazakhstan’s concept of constitutional rights and freedoms established in the Constitution, are universal human values to which civilized society has been went long. It is necessary to note that the natural law concept of the rights and freedoms found its comprehensive expression in the Constitutions of the Republic of Kazakhstan. According to this concept, a person is the source of his natural rights and freedoms which are recognized as absolute and inalienable, in accordance with Art. 12 of the 1995Constitution of the Republic of Kazakhstan. It is important to keep in mind that human rights and freedoms, regardless of nationality, are recognized by the state of Kazakhstan, as well as are guaranteed and protected by it. The constitutional doctrine of Kazakhstan has fixed the position of the natural origin of the rights of the individual, and in paragraph 2 art. 12 proclaimed that human rights and freedoms belong to everyone from the day of birth, are recognized as absolute and inalienable. One of the installations of modern Constitution is that the human rights and freedoms determine the content and the application of laws and other regulatory legal acts. It means that during the publication of the laws of the Republic of Kazakhstan, the government should proceed from the constitutional rights and freedoms of the individual, from the interests of man and citizen. This article of the Constitution for the first time really put into action of the Kazakhstan society the principles of constitutionalism, in particular, the principle of priority of the individual to the state, human rights and freedoms, it determines the content and application of laws and other regulations, which are fundamental in the process of the development and adoption of laws and other regulatory legal acts laying down the conditions and procedure for executing these rights and freedoms. In general, it should be noted that a new approach to the problems of human rights and freedoms laid down in the last Constitution of the Republic of Kazakhstan is based on the recognition of common humanistic values, including on the idea of respect for human rights, its legal security, the autonomy of the individual, the existence of areas free from government interference and from the arbitrariness of officials. In order to identify the legal nature of the constitutional rights and freedoms the most essential is that they mediate human relations and connections with the government. The Constitution of the Republic of Kazakhstan has fixed the new concept, according to which a person is involved in a stable political and legal bond with the Republic of Kazakhstan, consisting of mutual rights and obligations and mediations of these relations by political and legal belonging of a person to the people of Kazakhstan, exercising the sovereign power in the country (paragraph 1 Article 3 of the Constitution). Personality here acts as a person and a citizen, as well as an associated bearer of the sovereignty that is crucial for the other mediated relationships. Freedom, equality, humanity, responsibility, warranty these are principle, consolidation and compliance

78 of which in the constitutional rights and duties of the person provided by the Constitution of the Republic of Kazakhstan, they orient logic of social development on the full rise of the value of human in Kazakh society. The provisions of Article 1 of the Constitution of the Republic of Kazakhstan in connection with the contents of the Preamble of the Constitution of the Republic of Kazakhstan, as well as section 2 of the “The man and the Citizen” of the Constitution of the Republic of Kazakhstan are crucial for the whole constitutional and legal system of Kazakhstan. In this regard, the duty of guarantee of the constitutional rights and freedoms falls not only on the state authorities and state officials, but on the state as a whole. The significance of the provisions of Article 1 and systematically related to this provisions of Articles 12, 40, 76, of the Constitution of the Republic of Kazakhstan is not only that they represent the legal basis of the mechanism of constitutional guarantees of individual rights and freedoms, but that these constitutional provisions fix foundations of the distribution of relevant legal obligations between the state as a whole, the state bodies and officials. The problem of guarantees of compliance with the constitutional principles of the legitimacy, including human rights, has a number of aspects, each of which may become an independent topic for study. However, taking into account the raised topic, I would like to dwell on the specific issue of the ratio of constitutional provisions and their place in the system of constitutional control. It is thanks to constitutional supervision, urgent legal problems in new democracies are solved in the constitutional field, within and on the basis of the Basic Law. Priority influence of the Constitutional Council on the implementation and protection of human rights is tightly observed in the analysis of regulatory resolutions of the Constitutional Council, including the resolution “On official interpretation of provisions of the Constitution”. In this regard, I shall enlarge upon some of the resolutions of the Constitutional Council. The existing acts of the Constitutional Council within the official interpretation of the section “Man and the Citizen” allow us to classify them according to content of elaborated provisions. 1. The resolutions of the official interpretation of fundamental constitutional rules in the field of human rights. The main objective of clarifying these rules is an indication of the commitment of their adherence in the process of lawmaking and law enforcement. For example, № 6 resolution of the Constitutional Council of the Republic of Kazakhstan dated October 28, 1996 “On the official interpretation of paragraph 1of Art. 4 and paragraph 2 of Art. 12 of the Constitution of the Republic of Kazakhstan” says that “the recognition of the rights and freedoms as the absolute means the distribution of them for each person on the territory of the Republic of Kazakhstan, regardless of his citizenship. Inalienability of the rights and freedoms means that established human rights and freedoms cannot be denied by anyone, including the state, unless the cases provided by the Constitution, and adopted based on its laws”. Among the principles of human rights the rules on nationality are especially highlighted, so among regulatory resolutions on the interpretation of the group of the constitutional norms and it is possible to note in particular the resolutions of the Constitutional Council, clarifying the constitutional foundations of the citizenship of the Republic of Kazakhstan. The fundamental clarifications were given in № 12 resolution of the Constitutional Council dated December 1, 2003 “On the official interpretation of Articles 10 and 12 of the Constitution of the Republic of Kazakhstan”, which explained in detail the essence of the principles of citizenship of the Republic of Kazakhstan, such as unity, constitutional and legal legitimacy of citizenship, as well as stressed the particular importance of the citizenship for the Kazakh statehood. “The institute of Citizenship is a defining feature of sovereignty, independence and constitutional order of the Republic, as only the people of Kazakhstan, consisting of citizens of the state, is “the only source of state power”, and “exercise power directly through national referendum and free elections as well as delegate the execution of the power

79 to public authorities” (paragraphs 1 and 2 of Art. 3 of the Constitution). The Constitution differentiates the legal status of the person, using the term “citizen of the Republic of Kazakhstan”, “every”, “all”, “aliens” and “stateless person”. At the same time we should understand that, when the text of the Constitution refers to “every” and “all” it says about citizens of the Republic, as well as the persons who do not have citizenship of the Republic; when it uses the “citizens of the Republic of Kazakhstan” it means only persons connected by the state citizenship of Kazakhstan. So the Constitution establishes for these persons a different scope of rights and freedoms, which they can use, and a different amount of duties that are assigned to them”. 2. The resolutions of the Constitutional Council, clarifying the essence and content of any constitutional right. This group may include an official interpretation of the right to judicial protection, the right to confidentiality of personal deposits and savings, the right to freedom of associations and the activities of public associations, the right to social protection against unemployment, the right to social security in case of illness. For example, according to the resolution of the Constitutional Council of the Republic of Kazakhstan dated March 29, 1999 “On the official interpretation of paragraph 2 of Article 13, paragraph 1 of Article 14, paragraph 2 of Article 76 of the Constitution of the Republic of Kazakhstan” the rule of the paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan “Everyone has the right to judicial protection of their rights and freedoms” means the right of every person and the citizen to apply to the court for the protection and restoration of violated rights and freedoms. Right of everyone to judicial protection is also a constitutional guarantee of the rights and freedoms of man and citizen and therefore, according to paragraph 3 of Article 39 of the Constitution cannot be restricted in any circumstances. Paragraph 3 of Art. 13 guarantees the right to get a qualified legal assistance. The Law of the RK “On Advocacy” dated December 5, 1997 sets the main task to the legal profession facilitation to the implementation the human right to legal protection of their rights, freedoms and to qualified legal assistance guaranteed by the government and fixed by the Constitution of the Republic of Kazakhstan. Article 6 of the Law “On Advocacy” includes cases of legal aid free of charge: trustees, upon request, are exempted from payment, and legal assistance is provided by lawyers at the expense of the law office or the college of lawyers. 3. The resolutions clarifying the boundaries and foundations of the limitations of the constitutional human rights. These resolutions of the Constitutional Council are focused primarily on the legislator, who is obliged to observe the constitutional boundaries of the restrictions on human rights. For example, in № 2regulatory Resolution dated February 27, 2008, the Constitutional Council draws attention of the legislator to the fact that “in making laws he must start from the constitutional limits of the permissible restrictions on rights and freedoms of man and citizen, without distorting the essence of the constitutional rights and freedoms and not introducing such restrictions which are not consistent with the constitutionally defined objectives”. Since 1996 the Constitutional Council of the Republic of Kazakhstan has given an official interpretation of the following restrictions of constitutional rights: the right to life, the right to personal liberty, the right to confidentiality of personal deposits and savings, the right to private property and others. № 5 normative Resolution of the Constitutional Council of the Republic of Kazakhstan dated August 20, 2009 “On the official interpretation of paragraph 2 of Article 18 of the Constitution of the Republic of Kazakhstan and checking on compliance with the Constitution of the Republic of Kazakhstan of the Law of the Republic of Kazakhstan “On counteraction to legalization (laundering) of illegally acquired and financing of terrorism” and the Law of the Republic of Kazakhstan “On amendments and supplements to some legislative acts of Kazakhstan on some issues of counteraction to legalization (laundering) of illegally acquired and financing of terrorism”. It clarifies the feature of the restriction of the right to confidentiality of personal deposits and savings, which is acceptable, but it is the prerogative of the legislator and the legislator does not have the right to authorize a public body or official to regulate subordinate regulatory acts beyond the limitation of secrecy of personal deposits and savings” The legal position of any resolution of the Constitutional Council as the essence and the source of the findings of the case has particular importance. A particular legal position may be contained in a single

80 solution, but it is applied to other similar cases and thus, gradually assumes the nature of the official legal doctrine. The legal positions as an essential element of the activities of the body of constitutional control are an interpretation of legal concepts, rules and principles and, so have a direct impact on the scope of the constitutional and legal reality. Legal positions developed by the Constitutional Council eliminate arisen constitutional and legal uncertainty and thus set the only possible behavior of all entities of law, and to some extent determine the scope of activities of the legislator. At the same time, control over the constitutionality of laws and other acts of the legislature cannot be considered as an endeavor on the functions of the legislator, and control over the acts of the executive does not interfere in the administrative sphere. Positive law is quite conservative, so the emergence of new institutions, categories, concepts is often faced with a very reversed and controversial attitude. Regarding the legal position some problems have also indicated, such as those associated with their qualification as one of the sources of law. After all, the Basic Law established the division of state power into legislative, executive and judicial branches, as one of the fundamental principles of formation and functioning of the rule of law. However, the implementation of principle is possible only with cooperation of the authorities, the creation of an appropriate system of legal guarantees, checks and balances ensuring a harmonious balance. A manifestation of interaction and mutual influence of branches is that on the one hand, the legislator can influence the Constitutional Council by establishing its competence, the order of the choice of its members and their term of office. On the other hand, implementing the interpretation of legislation, the Court gives them new meaning, without which the text of the law cannot be considered as complete, thus, in fact, dealing with the law-making as the main function of the legislative branch. In terms of the constitutional principle of the legitimacy, the separation of powers, it should be noted that in case of violation of this principle, in fact right loses its true purpose and content. And the greater the deviation from the implementation of the principle, the higher the probability of extinction of legal rules where the laws supersedes by the desire for acceptance and use of divested legal content power resolutions. Any branch of government in a legal state should not feel unrestricted, as becoming unlimited, it violates human rights and freedoms. It follows inevitably that the division of powers is organically among the constitutional principles of the legitimacy. Mentioned principle has been consolidated in the Constitution of the Republic of Kazakhstan. According to Article 3 the state power in the Republic is one and it is carried out on the basis of the Constitution and laws in accordance with the principle of its separation to legislative, executive and judicial branches, and the principle of the interaction between them with an use of the system of checks and balances. Most of all it is in a transitional society, the Constitutional Council is intended to prevent the usurpation of state power and constantly maintain the condition in which only power is limited by the right. It is possible to determine that the Constitutional Council is the main organ of state power, providing the limiting of state power itself in favor of the principles of law. Anything, any dogmata of the separation of powers, national sovereignty and any classical scheme of the judiciary should not put pressure on an objective and comprehensive study of the essence of constitutional justice. As the Constitutional Council performs the function of the subordination to the Law political decisions, it stands sentinel over the deep values and interests of the society, simultaneously providing “smooth withering away” of those preventing the dynamic development of the society. The Constitutional Council has a special role in the system of state bodies. This is due to the fact that the Constitutional Council has a special competence and is the only body whose main function is ensuring the supremacy of the Constitution and the constitutional legitimacy. Its constitutional status allows to provide a meaningful impact in the legislative process on the quality of the laws adopted by the Parliament and consistent of adopted laws with the Constitution. It should be noted that the basis of the body of constitutional

81 control is taken from the French model. The Constitutional Council, as a public body, is not integrated into any of the branches of government. Exercising its powers, the Constitutional Council is independent and independent from state bodies, organizations, officials and citizens, and is governed only by the Constitution of the Republic of Kazakhstan. At the same time the Constitutional Council has a constructive role in the legislative process. Constitutional Council clarifies the legislative process in almost all stages: implementation of the legislative initiative, the passage of the bill in the Houses of Parliament, the announcement of the law as urgent, application of the conciliation procedure, amendments order, their volume and issues of publication of laws. The formation of the rule-of-law state and strengthening of the constitutional legality in the Republic is organically associated with the dynamic development of the legislation. This requires the adoption of laws regulating the main areas of the state, economic and social life. Pursuant to the Concept of legal policy of the Republic of Kazakhstan for the period from 2010 to 2020, approved by № 858 decree of the President of state dated August 24, 2009, the Parliament of Kazakhstan adopted laws that promoting the consolidation of the constitutional rights and freedoms of man and citizen, the development of economic, social and legal state systems. Number of international treaties promoting the gradual implementation of the requirements of international law into the national law is ratified. In its turn, the Constitutional Council prepares annual addresses “On state of the constitutional legality in the Republic”. This authority provided by paragraph 1of Art. 53 of the Constitution of the Republic of Kazakhstan is carried out on the basis of the generalization of the practice of constitutional proceedings by the Constitutional Council. In summary, I would like to quote the words of the Chairman of the Constitutional Council of the Republic of Kazakhstan I. I. Rogov, which we fully share: “Thanks to balanced, consistent and purposeful activities on strengthening the constitutionalism the Republic of Kazakhstan has become the country of the rising democracy. And the democracy is unthinkable without the supreme law. During the years of independence, Kazakhstan has made considerable progress towards achieving this ideal. The previous path was not easy. The changing of social structure was accompanied by very tangible political, economic and social convulsions, finding and testing of various options and vectors of the development. On our own experience, we learned the ratio of ideals of liberalism and basic human needs, accuracy in determination of reform priorities; immutability of the supremacy of law and fundamental freedoms, and others. Successes achieved by the country, peaceful and quiet life, growing authority of Kazakhstan at the international stage are based on a legal basis defined by the Constitution. Thanks to the Constitution the priority of man is ensured in all spheres of society. The Constitution has defined the supreme values of the state as not illusory ideological dogmata, but man, his life, rights and freedoms”. The might of the state, among other things, is in the confidence of citizens in the firmness of the protection of their constitutional rights and freedoms. The existence of effectively functioning organ of the constitutional control allows to strengthen this confidence. Today every citizen of Kazakhstan directly or indirectly uses the outcome of the activities of the Constitutional Council. Citizens may not realize it, but in many respects the Constitutional Council keeps and protects the moral standards defined by the Constitution. Compulsory execution of resolutions of the Constitutional Council is a task the implementation of which by all law enforcers will promote the strengthening, in particular, of the constitutional system and the rule-of-law state in general. The state based on strict compliance with the law, where human rights and freedoms are really the greatest value.

82 Tuigunaaly ABDRAIMOV – Chairman of the Central Commission on Elections and Referendums of the Kyrgyz Republic

CONSTITUTION AND ELECTIONS OF KAZAKHSTAN THROUGH THE EYES OF KYRGYZ COLLEAGUES

am glad to share with you the happiness to celebrate the 20th anniversary of adoption of the fundamental law – the Constitution of the Republic of Kazakhstan. I We all know that the Republic of Kazakhstan announced its independence in 1991, as well as Kyrgyz- stan. The text of the Constitution of the Republic of Kazakhstan was adopted at the nationwide referendum on August 30, 1995. In that difficult time, all Kazakhstanis stuck together placing confidence in the First President. The idea to create a new Kazakh model of constitutional form of government and a project of formation of the fundamental law – the Constitution of the country – belongs to the President of the Republic of Kazakh- stan Nursultan Abishevich Nazarbayev. This Constitution has become guarantee of well-being and prosperity of the whole Kazakh nation. To a great extent owing to it, Kazakhstan has achieved dramatic success and is one of the leaders among the independent states formed after the breakup of the USSR. Historically, Kazakh and Kyrgyz people have had good neighborhood and friendly relationship. Diplomatic relationship between the Republic of Kazakhstan and Kyrgyz Republic were established on October 15, 1992. On June 8, 1993, a Treaty of Friendship, Cooperation and Mutual Assistance was signed in Almaty between the Republic of Kazakhstan and Kyrgyz Republic, establishing basic principles of cooperation between our states. Contractual legal framework of cooperation between the Republic of Kazakhstan and Kyrgyz Republic consists of over 150 bilateral agreements and treaties, including a Treaty of eternal friendship as of April 8, 1997, and a Treaty of allied relationship as of December 25, 2003. Kazakhstan and Kyrgyzstan are developing cooperation in multilateral agreements as well. This includes cooperation within the framework of international organizations such as Commonwealth of Independent States (CIS), Organization for Security and Cooperation in Europe (OSCE), the Collective Security Treaty Orga- nization (CSTO), Shanghai Cooperation Organization (SCO), Central Asian Cooperation (CAC), Islamic Coopera- tion Organization (ICO), and many others.

83 The number of the most important agreements also includes treaties of principles of trade and economical cooperation, free trade areas, international motor service, cooperation in the sphere of air transport, in energy field, etc. They are creating a strong contractual legal framework in the spirit of strategic, equal partnership, widening and deepening it, they reflect a high level of trust between our states, strengthening the ties of friendship year in, year out. This is confirmed by absence of any political or economical disputes; there is likeness of the parties in many international and regional issues. Today Kazakhstan is an important trade partner of Kyrgyzstan. Kazakhstan is on the third position in the foreign trade turnover of Kyrgyz Republic. Following the results of 2013, bilateral Kazakh-Kyrgyz sales turnover amounted to 1.07 billion USD, while in 2011, it was 750 million USD. As is obvious, the growth trend can be seen in trade: over the last three years, its significant increase is registered. Cultural and humanitarian cooperation between Kazakhstan and Kyrgyzstan develops dynamically as well. Exhibitions, international scientific symposiums, international conferences, round tables, recitals and seminar are held on a regular basis, with the participation of clerisy and community of our countries. Wealth of information and complexity of our bilateral cooperation, its legal registration became possible due to the balanced foreign policy of our countries and peoples, the foundation of which is given both in the Constitution of Kazakhstan, and in the Constitution of Kyrgyzstan. In addition, I would like to mention a recent meeting of the Supreme Eurasian Economic Community on the level of the heads of states, which was marked by signing of a Treaty of Eurasian Economic Union between the Republic of Belarus, Republic of Kazakhstan and Russian Federation, on May 29, 2014 in Astana city, and the Kyrgyz Republic is going to become a part of this union. I am sure that this community will bring our states to the higher international level and increase the role of participating countries in economical, social and other spheres. Over 23 years of independence Kazakhstan has had a dynamical path of development. Reforms held in political, social and humanitarian spheres, important steps made towards integration into the world community have given sizeable reputation to your country on the world stage. Speaking of the capital, it is really wonderful. As is known, the content of the fundamental law – the Constitution – is consolidation of foundations of social and national life of the country, fundamental human rights and freedoms. In this direction, the Consti- tution of the Republic of Kazakhstan follows the correctly chosen path. Since adoption of the existing Constitution of the Republic of Kazakhstan, alterations and amendments have been introduced thrice: in 1998, 2007, and 2011. Alterations were also introduced many times to the Constitution of the Kyrgyz Republic. And in 2010, new Constitution of the Kyrgyz Republic was adopted. The Constitution is the fundamental law of the country of the highest legal force. According to the article 3 of the Constitution of the Republic of Kazakhstan, “the nation exercises power directly through republican referendum and free election, as well as delegates exercise of its power to the state authorities”. We know that the Central Election Commission of the Republic of Kazakhstan provides organization and conduct of free and democratic election, realizing the regulations of the articles 3, 33, 41, 51, 86, and 87 of the Constitution of the Republic of Kazakhstan. I have visited the Republic of Kazakhstan many times at the invitation of K. Turgankulov, the Chairman of the Central Election Commission of the Republic of Kazakhstan, hence exercising provisions of the signed by us Memorandum of Understanding between the Central Election Commission of the Republic of Kazakhstan and Central Election and Referendum Commission of the Kyrgyz Republic. Recent official meeting held in the Central Election Commission of the Republic of Kazakhstan in the beginning of 2014 was organized in a good manner. I was given an up-close look at main provisions of the Ad-

84 dress of the President of the Republic of Kazakhstan N.A. Nazarbayev to the people of Kazakhstan as of Janu- ary 17, 2014 “Kazakhstan’s way – 2050: Common goal, common interests, common future”. In this context, I understood that rural akims elected in summer 2013 in Kazakhstan from the number of worthy candidates would contribute to realization of the Address. I received detailed information on akim election of cities of regional subordinance, rural districts, villages and rural areas of the Republic Kazakhstan which are not part of rural districts. The idea of akim election is reflected in the Constitution of the Republic of Kazakhstan, and it was realized through election of 2457 rural akims across the country. In the course of my visit of regions, my colleagues and I saw concerted efforts in formation of new compo- sitions of commissions at the local level, which assisted to the experience exchange process between election commissions of Kazakhstan and Kyrgyzstan. Our electoral cooperation will be continued, and in the future it will become more fruitful, as well as cooperation between our states. I sincerely congratulate all Kazakhstanis on this important event – the 20th anniversary of the Con- stitution of the Republic of Kazakhstan, and I wish success and prosperity to the country and to people living there.

85 Yurii BAULIN – Chairman of the Constitutional Court of the Ukraine, Doctor of Law, professor, Academician of the National Academy of Legal Sciences of Ukraine

CONSTITUTIONAL CONTROL IN UKRAINE AND REPUBLIC OF KAZAKHSTAN: FORMATION AND ESTABLISHMENT

or sovereign states which were formed after the breakup of the Soviet Union, constitutional justice is a new legal phenomenon, which had no analogues under the conditions of the so called nationwide socialist Fsystem. So, such notions as “compliance with the Constitution”, “validity of statute”, “constitutional proceedings” were not studied in the Soviet science of constitutional right and were not applied in the state activity practice. It is commonly known that the basic principles of organization and activities of the authorities, as well as rights, freedoms and responsibilities of citizens are fixed in the constitution. Generally, constitutional provisions are directly applicable; laws and other regulatory acts are adopted on basis of the constitution and cannot contradict to it. 1. According to V. Pogorilko “Supremacy of constitutions in the regulatory act system has been and will be their distinctive feature; but the main feature of constitutions is limitation of power, and this is their main purpose” [1, p. 23-32]. 2. In other words, constitution de facto is a nationwide political and legal agreement defining relationship between the state and its citizens. According to this agreement, the people assign their sovereign rights to the government to the extent determined by such agreement; and the state represented by authorities is obliged to provide compliance with and protection of citizens’ rights and freedoms guaranteed by the constitution. A distinctive feature of a modern democratic constitutional state is that actions of people, authorities, legal and other entities are assessed as moral or unethical, possible and inadmissible, legal and punishable without reference to purposes proclaimed, exclusively on the basis of compliance and non-compliance of such actions with the Constitution, and the laws, adopted norms of ethics and morality.

86 Generally, constitutional control executed by an independent specialized body is the main and defining structural element of the state mechanism for provision of the constitution’s supremacy and direct applicability. The main features of specialized bodies of constitutional control are the following: 1) they are state authorities; 2) constitutional control provision is one of the main functions in their activities; 3) foundations for organization and functioning of such bodies are fixed in the constitution; 4) they exercise both follow-up and preliminary surveillance over constitutionality of regulatory acts; 5) their decisions are based on the constitution; 6) through an exception, they may have the power for interpretation of the constitution. Indeed, the issue of necessity to introduce constitutional control arose from the beginning of the constitutional state and legal reformation process. In the end of 1988, amendments were introduced to the Consti- tution of the USSR, according to which a special body was organized – Constitutional Surveillance committee, which started functioning in May 1990; however, due to the known circumstances, it was terminated. On October 27, 1989, Verkhovna Rada of the USSR provided for formation of the Constitutional Surveillance Committee through introduction of amendments to the article 112 of the USSR Constitution; although during “per- estroika” period, an opinion ran deep in the Soviet Ukraine that constitutional control contradicts to the principle of the legislative department supremacy, and thus to the people’s sovereignty principle. That is why it was considered that the people’s sovereignty principle would be turned into fiction by authorization of the constitutional control body to nullify the acts of Verkhovna Rada, which was the only body acting on behalf of the people. Therefore, officially to the year 1992, and actually to the year 1996, constitutional control in Ukraine was exercised by Verkhovna Rada of Ukraine through official interpretation of the Constitution and laws. The truth is that in spite of adoption of the Law of Ukraine “On Constitutional Court of Ukraine”[2] and corresponding alterations to the 1978 Constitution of Ukraine in June 1992, the Constitutional Court of Ukraine was not formed. The only body of constitutional jurisdiction in Ukraine could start functioning only in 1996 on the base and within the limits of power established by Constitution of Ukraine of 1996 and the new Law of Ukraine “On Constitutional Court of Ukraine” [3]. In accordance with the Constitution of Ukraine, the Constitutional Court of Ukraine is the sole body of constitutional jurisdiction. It consists of 18 judges which are assigned through equal quotas by the President of Ukraine, parliament and judiciary convention. Powers of the Ukrainian Constitutional Court include: - solution of issues regarding accordance of laws and other regulator acts of Verkhovna Rada, acts of the President and Cabinet of Ministers, regulatory acts of Verkhovna Rada of the Autonomous Republic of Crimea to the Constitution; - official interpretation of the Constitutional provisions and laws of Ukraine; - production of conclusions on constitutionality of effective international treaties or treaties which are submitted to Verkhovna Rada of Ukraine for consent for their binding authority; - production of conclusions on compliance with the constitutional procedure of investigation and consideration of the case of removing the President from his position by way of impeachment and on violation of the Constitution and laws of Ukraine by Verkhovna Rada of the Autonomous Republic of Crimea. The Constitutional court of Ukraine is a mandatory participant of the process of amendments introduction to the Fundamental law of Ukraine. Its powers include exercise of preventive constitutional control over projected laws regarding this, and presentation of conclusion on its compliance to requirements of articles 157 and 158 of the Constitution of Ukraine. In particular, according to the article 157 of the Ukrainian Constitution, it cannot be amended in case if amendments provide for cancellation or limitation of existing rights and freedoms of man and citizen, which is one of the guarantees of compliance with them. Alterations of the Fundamental law of Ukraine must not be aimed at elimination of independence or violation of the territorial integrity of Ukraine. Besides, the Ukrai- nian Constitution cannot be changed under conditions of military or emergency situation.

87 Article 158 of the Constitution of Ukraine establishes rules, according to which the projected law on introduction of amendments to the Ukrainian Constitution which was considered by the Parliament and the law was not adopted may be submitted to Verkhovna Rada of Ukraine no sooner than a year after decision making regarding this projected law (part one); during its term of powers, Verkhovna Rada of Ukraine cannot change the same provisions of the Ukrainian Constitution (part two). A process of constitutional control institute formation in the Republic of Kazakhstan was exercised step by step. The first step – formal exercise of protection of the Constitution by supreme bodies of representative power of the union republic under conditions that exclude division of the state authority. According to the Constitution of the Kazakh Soviet Socialist Republic, the Presidium of Supreme Soviet of the Kazakh USSR had exclusive powers in exercise of control over compliance with the Constitution of the Kazakh SSR and interpretation of the Kazakh USSR laws [4]. The second step – an attempt to create a Constitutional Surveillance Committee of the Republic like a corresponding institute on the union level (1988-1991). The third step - establishment of the Constitutional Court of the Republic of Kazakhstan as an institute reflecting democratic principle of separation of powers declared by the state (1991-1995). The fourth step – formation and functioning of the Constitutional Council of the Republic of Kazakhstan (since 1995 to present time) which is a result of “managed democracy” policy announced in Kazakhstan providing for graduation of political reforms and stability of development [5, p.103]. According to I. Ostapovich, “French model of specialized constitutional surveillance was a remote analogue of the Kazakhstani model. Similarity between them is traced in the procedure of formation, legal status, competence. Common thing between formation of French and Kazakhstani Constitutional Councils is that in addition to assigned members, they include members of right – former presidents of the Republic. Assignment of the Council chairmen is the right of presidents of the republics, etc.” [6, p. 25]. According to article 71 of the Constitution of the Republic of Kazakhstan, the Constitutional Council of the Republic of Kazakhstan consists of seven members, whose powers last six years. Former Presidents of the Republic are life-members of the Constitutional Council (part one); the Chairman of the Constitutional Council is assigned by the President of the republic, and in case of division of the vote, his vote is decisive (part two); two members of the Constitutional Council are assigned by the President of the republic, Senate and Mazhilis assign two members of the Constitutional Council each. Half of members of the Constitutional Council are renewed each three years (part three). According to article 72 of the Constitution of the Republic of Kazakhstan: 1. At the appeal of the President of the Republic of Kazakhstan, Senate Chairman, Mazhilis Chairman, at least one fifth of the total number of Parliament deputies, and Prime Minister, the Constitutional Council: 1) in a case of a dispute, decides an issue on holding correctness of election of the President of the Re- public, Parliament deputies, and holding of a republican referendum; 2) considers laws adopted by the Parliament for their correspondence to the Constitution of the Republic, before signing by the President; 2-1) considers resolutions adopted by the Parliament and its chambers for their correspondence to the Constitution of the Republic; 3) before ratification, considers international treaties of the Republic for their correspondence to the Constitution; 4) gives official interpretation of the Constitutional provisions; 5) gives conclusions in cases provided in paragraphs 1 and 2 of the article 47 (early termination of the President of the Republic of Kazakhstan) of the Constitution. 2. The Constitutional Council considers court applications in cases established in the article 78 of the Constitution. Therefore, it is obvious that, although particular aspects of constitutional jurisdiction bodies’ activities in Ukraine and in the Republic of Kazakhstan are alike, however, the procedure of their structure formation and the volume of powers differ dramatically.

88 First of all, it should be noted that the Constitutional Council of the Republic of Kazakhstan and the Con- stitutional Court of Ukraine have nearly equal powers in the spheres of constitutional control over international treaties of their states, compliance with the constitutional procedure of early termination of presidents and solution of issues of constitutionality of particular regulatory acts. However, powers of the Constitutional Council of Kazakhstan in the sphere of preventive control are considerably different from the powers of the Ukrainian Constitutional Court, which is expressed by granting the following rights to the Constitutional Court of Kazakhstan: -. control over observance of electoral rights of citizens in settlement of disputes regarding correctness of election holding of the President of the republic, Parliament deputies, and republican referendum; - consideration concerning compliance of the laws adopted by the Parliament with the Constitution, before signing by the President; - .execution of informative function regarding condition of constitutional legitimacy following the results of generalization of constitutional practice (annual notification of the Parliament regarding the condition of constitutional legitimacy in the republic). Attention should be paid to the fact that the Constitutional Council has a right to reconsider the decisions made. Such reconsideration is based both on regulatory conditions (change of Constitutional provisions on base of which the decision was made), and estimative conditions – presence of new circumstances essential for the subject matter (rebus sic stantibus– things thus standing), as well as necessity to protect interests, rights and freedoms of man and citizen, to provide national security, sovereignty and integrity of the state, or in case of objection from the President of the Republic of Kazakhstan regarding the decision made [7]. The Constitution of Ukraine and the Law of Ukraine “On the Constitutional Court of Ukraine” do not provide for a possibility of reconsideration of the decision made, and this fact has become target of criticism on the part of some national constitutionalists. Thus, P. Tkachuk, judge emeritus of the Ukrainian Constitutional Court, considers that in exceptional cases, for the sake of consideration of reality, the Constitutional Court of the Ukraine should have a right to withdraw from its previous proposition in making of new decisions. In addition, the Constitutional Court of Ukraine may develop and enrich its previous legal propositions in conceptual and content-related context [8, p.21]. Along with that, some national constitutionalists make reference to the article 68 of the Law of Ukraine “On the Constitutional Court of Ukraine” as statutorily established base for such consideration. It is not right, because in according to this law, the Constitutional Court of Ukraine “opens new proceedings on the case under detection of new circumstances on the case which were not subject of its consideration but existed for the time of its consideration and decision making, or giving a conclusion”. In other words, this is not about reconsideration or cancellation of a previously made decision or legal propositions conceived here, but about opening of new constitutional proceedings in case of detection of new circumstances. In our opinion, this means that in such cases a constitutional jurisdiction body begins proceedings on another case where it can make a corresponding decision. Besides, a distinctive feature of preventive control exercise by the Constitutional Council of Kazakhstan is that such control is performed in the context of establishment of compliance of regulatory norms guaranteed by the Constitution of the Republic with the rights and freedoms of man and citizen. Regarding this, the Constitutional Council has worked out a position, in accordance to which the law must not create a possibility of questionable understanding of provisions contained there, because practically this can lead to arbitrary interpretation and inadequate use of this regulatory act, and as a result to unfounded limitation of rights and freedoms of man and citizen [9, p.25]. The Constitutional Council of the Republic of Kazakhstan and Constitutional Court of Ukraine have powers to control execution of decisions made by them. In accordance with the Regulations of the Constitutional Council of the Republic of Kazakhstan, such control is assigned to a member of the Constitutional Council who prepared materials for its session, and administration of the Constitutional Council [10].

89 In accordance with the article 70 of the Law of Ukraine “On the Constitutional Court of Ukraine”, if necessary, the Constitutional Court of Ukraine can determine in its decision, conclusion the procedure and terms of their execution, as well as assign duties of execution of the decision or compliance with the conclusion to appropriate state authorities (part two). As is emphasized by the Constitutional Court of Ukraine in the Decision as of December 14, 2000, “Along with that, whether or not the procedure for exercise is defined in the decision (conclusion) of the Constitu- tional Court of Ukraine, appropriate state authorities are obliged to act only on the base, within the power and by means provided by the Constitution and laws of Ukraine” [11]. The law also determines the rules, in accordance to which: - the Constitutional Court of Ukraine has a right to require written confirmation of decision execution, compliance with the conclusion of the Constitutional Court of Ukraine from bodies mentioned in the article 70 (part three); - non-execution of decisions and non-compliance with conclusions of the Constitutional Court of Ukraine results in responsibility in accordance with the law (part four). Along with that it must be admitted that the last provision is de facto formal, because until today, the provided law has not been adopted, cases of non- execution of decision of the sole body of constitutional jurisdiction in Ukraine which, unfortunately, come off in practice remain without due response. An exclusive right to introduce amendments to the Constitution of the Republic of Kazakhstan is given to the republican referendum which is initiated at the decision of the President of the Republic, proposal of the Parliament or Government. Along with that, the Constitutional Council does not take part in consideration of such issues even on the stage of constitutional control before signing of corresponding laws. At the same time, the Constitutional Court of Ukraine, having the right of preventive control over a projected law on introduction of amendments to the Constitution of Ukraine, provides protection of human rights, independence and territorial integrity of the state [12]. In this context, the Constitutional Court of Ukraine, in the Decision as of June 26, 2008, noted that in accordance with the part two of the article 124 of the Ukrainian Constitution, court jurisdiction applies to all legal relations occurring within the state. That is why the Constitutional Court of Ukraine considers that it must exercise follow-up constitutional control with regard to the law on introduction of amendments to the Constitution after its entry into force, because absence of judicial control over the procedure of its consideration and adoption determined in the section XIII of the Ukrainian Constitution may result in limitation or cancellation of rights and freedoms of man and citizen, elimination of independence or violation of territorial integrity of Ukraine, as well as change of the constitutional system in a way not provided by the Fundamental Law of Ukraine. Based on the foregoing, the Court recognized as unconstitutional the provision of the Law “On the Constitutional Court of Ukraine”, according to which its jurisdiction does not apply to solution of the issue of constitutionality of laws on introduction of amendments to the Constitu- tion which entered into force [13]. It’s worth noting that the legislations of the Republic of Kazakhstan and Ukraine do not provide for a possibility of direct application of citizens to the constitutional jurisdiction body with a constitutional claim as it is in Germany, Austria, Russian Federation and some other countries. However, as is fairly noted by V. Shapoval, judge emeritus of the Constitutional Court of the Ukraine, “although the Constitution does not provide for constitutional claim institute, the Law has a peculiar alternative. If in interpretation of a law there are indications of its noncompliance with the Constitution, the Constitutional Court decides the issue of non-constitutionality of such law in the same proceeding (article 95). Therefore, there is an opportunity to protect rights and freedoms of a person through recognition of non- constitutionality of the applied law through initiating a procedure in the constitutional jurisdiction body regarding official interpretation of laws”[14]. It is no coincidence that G. Arutunyan, the Chairman of the Constitutional Court of the Republic of Ar- menia, member of the Venice Commission, having analyzed norms of the national legislation regulating the

90 procedure of presentation of official interpretation of Ukrainian laws, has come to a conclusion that “the constitutional application institute which is in force in Ukraine de facto is one of forms of constitutional claim, because in fact it serves as a regulatory constitutional claim” [15, p.77]. Therefore, analysis of powers of constitutional justice bodies in the Republic of Kazakhstan and Ukraine allows making a conclusion that their activities are aimed at guarantee of the constitution supremacy within the territory of these states, as well as realization of human values proclaimed by such regulatory acts, first of all in the sphere of protection of human rights and freedoms. Being a result of procedural and institutional activity, constitutional proceeding practice of the mentioned states has its own internal logic which is established on the legislative level in accordance with recognized subsidiary principle, considering historical traditions, cultural, religious and other differences of Ukrainian and Kazakh nations.

REFERENCES: 1. PogorilkoV. Role and meaning of the Constitution in Ukrainian law-making and state building/ V.Pogorilko// Bulletinof the National Academy of Science of Ukraine. – 2005. – No.12 2. .The Law of Ukraine “On the Constitutional Court of Ukraine” as of June 3, 1992, No. 2400 – XII // The Voice of Ukraine. – 1992. – No.123 (The law became inoperative on the base of the Law as of October 16, 1996, No. 422/96-BP). 3..The Law of Ukraine “On the Constitutional Court of Ukraine” as of October 16, 1996 No. 422/96-BP // News of Verkhovna Rada of Ukraine. – 1996. – No.49. – P. 272 4. Constitution of the Kazakh SSR of 1978 [Electronic resource]. – Access regime: http://www.worldstates- men.org/Constitution_of_KazSSR-1978.pdf. 5. .Political science. Political science in post-Soviet states: Collection of research papers M. INION RAN 2004 No.2 6. Ostapovich I.Y. Constitutional Council of the Republic of Kazakhstan: Issues of theory and practice. – Au- thor’s abstract of dissertation of degree of Candidate of juridical sciences. Major 12.00.02 – Constitutional right; Municipal right /I. Yu. Ostapovich. – Tomsk, 2005. 7. Constitutional law of the Republic of Kazakhstan “On the Constitutional Council of the Republic of Ka- zakhstan” as of December 29, 1995, No. 2737 8. Tkachuk P.M. Legal propositions of the Constitutional Court of Ukraine / P.M. Tkachuk // News of the Constitutional Court of Ukraine. – K., 2006. – No.2. 9. Ostapovich I.Y. Constitutional Council of the Republic of Kazakhstan: Issues of theory and practice. – Au- thor’s abstract of dissertation of degree of Candidate of juridical sciences. – Tomsk, 2005. 10. Decree of the Constitutional Council of the Republic of Kazakhstan as of April 19, 2002, No.1 “On approval of the Procedure of the Constitutional Council of the Republic of Kazakhstan” (with alterations and amendments as of 14.08.2013) // Electronic resource: zakon.kz // Access regime: http://online.zakon.kz/Document/?doc_ id=1031056. 11. .Decision of the Constitutional Court of Ukraine as of December 15, 2000, No. 15-рп on a case regarding the execution procedure for decision made by the Constitutional Court of Ukraine // Official bulletin of Ukraine as of 05.01.20012000, No. 51, p. 80, art.2226. 12. .Decision of the Constitutional Court of Ukraine as of June 9, 2008, No. 8-рп on a case of introduction of amendments to the Constitution of Ukraine. 13. .Decision of the Constitutional Court of Ukraine as of June 26, 2008, No. 13-рп on a case of powers of the Constitutional Court of Ukraine // Official bulletin of Ukraine. – 2008. – No. 52. – P. 1742. 14. Shapoval V.M. Constitutional claim / Volodimir Mykolayovych Shapoval / Electronic resource: Legislative base “Juridical dictionary” / Access regime: http://www.zakony.com. ua/juridical.html?catid=40016. 15. Harutyunyan G.G. Constitutionalism: lessons, challenges, guarantees / Gagik Garushevich Harutyunyan. – K.: Logos, 2011.

91 Lars BROCKER – President of the Constitutional Court and the Higher Administrative Court of the Rheinland-Pfalz (Federal Republic of Germany)

CONSTITUTION AND CONSTITUTIONAL DEVELOPMENT IN TRANSFORMATIONAL SOCIETY: THE WAY OF THE REPUBLIC OF KAZAKHSTAN

I. Preliminary note The fact that the anniversary article is dedicated not to a particular person or institute, but to the text of the law, is not ordinary. This is also not about any text of the law, but about the supreme legal framework of the state – the Constitution of the Republic of Kazakhstan of 1995, which celebrates its 20th anniversary this year. The fact that the state authorities of the Republic of Kazakhstan, first of all, the President, the Constitutional Court and the General Prosecutor’s Office attract openly a look from outside, speaks for self-consciousness of Kazakhstan and pride for everything achieved up to this date. This speaks for the republic’s ambition not only for its place among constitutional states on the international level, but fir its own consistent development of transformational progress. The fact that this happens within the framework of intensive and systematic legal dialogue shows seriousness and purposefulness of government efforts. Since 2013, I have kindly taken part as an expert of the German Association for International Legal Coop- eration (IRZ) in the sphere of constitutional law in this wide dialogue covering all spheres of the law. From this perspective and under the impression of experience acquired there, I sincerely congratulate you on the 20th anniversary of the Constitution. I would like to do this starting with a brief overview of main elements of previous development of the Con- stitution (II). Of course, this overview will not go without brief consideration of principal topic of transformational process in the states of the former Soviet Union in general, and in Kazakhstan in particular, regarding adaptation of “foreign” constitutions and its development (II.1.). The way of the Republic of Kazakhstan in the sphere of constitutional law and constitutional development, as well as high significance of everything achieved up to the moment can be assessed correctly in this context only (II.2.).

92 II. “Own way” 1. Reception of constitution in transformational states The process of constitution reception, which has no examples in the history up to present time, started from foundational reforms of the USSR Constitution in 1989, from the breakup of the USSR and formation or reconstitution of independent national states in Central and Eastern Europe, as well as in Central Asia. This reception of the constitutional law is aimed at creation of legitimation foundation of the state, introduction and guaranteeing of constitutional state structures, therefore formulation and realization of striving to integration into the commonwealth of nations. However, filling and development of such constitutions in structural context is difficult, risky enterprise, because a constitution and its guarantees can become a part of legal reality and therefore spread its full effect only step by step [1, p.919 ff.]. The transformation process starts from it, but it is far from being completed. This is actual for Central Asian states and especially for Kazakhstan as for the biggest and the most significant state in this region in the geostrategic context. Reception of, in fact, a European constitution (with inclusions of American influence) and therefore clear and explicit recognition of democracy, constitutional state and human rights should be carefully adapted by the state authorities to the existing forms of power and in no small measure to historically formed set of mind [2, p. 383]. The history of Kazakhstan’s Constitution starts not from the USSR breakup and not from the Constitu- tion of the Kazakh Soviet Socialist Republic of 1937, but from the middle of XV century, when original forms of power, independent from southern khanates were formed within the territory of the present Republic of Kazakhstan. There are roots and influences, as well as common grounds which were block and reformed, but not destroyed in Soviet and tsarist periods. These traditions and reality, as well as (still) long absence of civil society can’t escape observation in particular when looking from outside. First of all, these original traditions aren’t something negative, in contrary, they help determining identity, not only facilitating the transformation process, but even making it possible. Due to this, in the first phase of the transformation process (and this is often missed) for implementation of necessary reforms and establishment of structures provided by the Constitution, a strong presidential administration is the best guarantee for reformation process in structural relation [3, p.927]. This is a prerequisite for a successful “own way”. Therefore, in the German public law, the President of Kazakhstan has “discreet governing style aimed at administrative and economical modernization along with obligatory provision of political stability” and therefore the leading role in Central Asia [4, p. 607 (634)].

2. Constitution and constitutional development a) Constitutional development of the Republic of Kazakhstan and the “own way” of perception of the foreign and development of the original, based on traditions, constitutional law starts not from the Constitu- tion of 1995, but from the “Declaration on the state sovereignty of the Kazakh SSR” as of October 25, 1990, or to be more specific, from the Constitutional law “On the state independence of the Republic of Kazakhstan” adopted on December 16, 1991. This Constitutional law contains the following: “The Republic of Kazakhstan is an independent, democratic and constitutional state” [4, p.610]. Such central recognition of itself as a supporter of constitutional state, originating from the German theory of the constitution, is a constructive element in the (modern) constitutional tradition of Kazakhstan. Since 1991, this has been written into the text of the Constitution and realized in practice step by step. b) Proposed by the Constitution Commission established in December 1990 under the chairmanship of the President and adopted on January 28, 1993 by the Supreme Council (the First) Constitution of the Republic of Kazakhstan guaranteed fundamental resignation of the communist past as a preamble, catalogue of basic rights, recognition of a constitutional state, human rights, separation of power, sovereignty of the nation and democracy. A Constitutional Court with great competences was established with the purpose of provision of the Con- stitution’s supremacy and therefore its highest priority. One could apply there, in particular, with individual constitutional claims and even start a proceeding at one’s own initiative – which was ambitious competence

93 exceeding the usual function of the court. This strong Constitutional Court started functioning on June 5, 1992 [4, p. 615]. Its decision made on the base of a constitutional claim regarding central issues of equality of electoral right (art. 109, 111 and 117 of the Constitution of 1993) as of March 6, 1995, confirmed by the decision as of March 10, 1995, was juristically convincing and carried far-reaching consequences for constitutional development because of the Parliament dissolution, which brought to the change of the Constitution and resulted in the new Constitution adopted on August 30, 1995 [4, p.618 ff.]. c) This new Constitution adopted on August 30, 1995 at the referendum is more structured and clear than the previous one, reflecting exact and consistent system. Therefore, it is more convenient and modern than the previous one. Its culmination is reflected in article 1, p. 1, where human rights and freedoms are proclaimed as the highest value. Human dignity is the central and the highest provision of the Constitution of the Federal Republic of Germany and is inviolable according to the article 17, paragraph 1. The Constitution recognizes democracy, legal nationhood and social nationhood. First of all, the constitutional state is guaranteed as a central structural principle. This important recognition has been securely guaranteed since the announcement of independence in constitutional development and constitutional tradition of the Republic of Kazakhstan. This new Constitution aligned the structure of state authorities in a new, detailed manner. “Presidential government” was strengthened to the prejudice of competence of the Parliament and judicial power, which partly gave a handle for sharp criticism due to the new full presidential authority. Of course, in comparison with the Constitution of 1993, such changes may be understood from the standpoint of the state authorities as necessary due o complex circumstances of the transformation process which seemed to be essential for its realization [4, p. 633]. Thanks to the parliament reform made on May 21, 2007 and alterations of the Constitution connected to it (especially articles 50, 51, 52), the structure of power was again a little shifted to the side of the Parliament. In addition, as was announced, this reform was aimed at improvement of prerequisites for development of political parties, i.e. important institutes of democracy [5, p.125 ff.]. But this is not only about the President – Parliament correlation. For a constitutional state is a determining principle of the Constitution, special attention should be paid to the justice. Its status is determining for efficiency of justice machinery. Significant reduction of the Constitutional Court’s competence, its transformation into the Constitutional Council by the French example (article 71 ff) in 1995 did not contribute to strengthening of the justice machinery. .The same is actual for exclusion of guarantees of legal recourse regarding a violated right against the acts of the state authorities [6, p. 927 f]. Of course, this also must not be overestimated, because article 13, paragraph 2 also guarantees a “right for judicial protection of rights and freedoms” for everyone. This right is valid in respect to the authorities as well. However, there is another situation concerning the Constitutional Court: an important criterion of successful reception of constitutional state and its actual introduction to the state’s transformation process (as if defined in the section of this anniversary article, “the way from totalitarianism to democracy and constitutional state”), from the constitutional and legal point of view, is efficiency of rights exercise mechanisms (realization of guarantee of access to the courts) and adequate interpretation and application of the Con- stitution by authorized constitutional courts. There is a special freedom of interpretation in legal principles requiring filling. This is true for the sphere of basic rights as well [7, p. 927 ff.]. Along with that, there is criticism in juridical literature that constitutional courts of transformational states seldom or never deal with comparative legal studies, which is necessary due to reception of constitution from foreign public orders [7, p. 929 ff.]. Anyway, such criticism does not refer to Kazakhstan. The fact that the Constitutional Council is not afraid to deal with comparative legal studies has been proven by it, in particular, in the sensitive sphere of electoral law, in its decision as of January 31, 2011 [8, p. 116 ff.]. Perhaps, that is why after 20 years of the Constitution adopted on August 30, 1995, it’s worth thinking to strengthen the Constitutional Council again as the Constitution keeper, and to introduce again a strong Constitutional Court at the example of the Constitution adopted on January 28, 1993. With good reason, the

94 Venice Commission of the Council of Europe believes that it is possible to proceed from the premise that jurisdiction of constitutional courts is an important factor in guaranteeing new democratic constitutional system [9, p.103]. The Constitutional Council would be able to strengthen its stabilizing function in respect to the Constitution and society. Administrative jurisdiction and its role in development of single and reliable administrative practice also arouse interest of national politicians, which is evidenced by participation of representatives of the Republic of Kazakhstan in the conference organized by IRZ “Administrative jurisdiction and administrative law practice” held on November 15-17, 2010 in Kyiv (Ukraine) [10, p. 1007 (1008]. Control by administrative courts has not been on the top of the wide agenda until today, because issues of economic law, private law and criminal process have been considered at the first place, which is reasonable. But this does not mean that such approaches are forgotten or declined. Publicity, intensity and strategic orientation to reforms of the dialogue about the constitutional state as it is held and deepened by the institutes of the Republic of Kazakhstan and its managing representatives – in particular, the Administration of the President, Constitutional Council and its Chairman, as well as the Admin- istration of the General Prosecutor – speak for the fact [11] that these themes soon will be brought to agenda.

III. Conclusive note The Constitution adopted in 1995 and its predecessor of 1993, as well as constitutional development in the Republic of Kazakhstan made a great contribution to implementation of the transformation process. Along with that, criticism regarding the fact that alterations of the Constitution’s texts, which have originally been received to a considerable extent, were of fundamental character, should always consider peculiarities of the society and traditional in Central Asian space. Seen during the wide reform of 1995 and in the Constitu- tion, which turned 20 years, motivation to preserve original traditions, to provide stability of the state structures and to form and realize the transformation process is reasonable and convincing. Efforts in increasing efficiency of this principle are not weakening. The “own way” of the Republic of Kazakhstan, representatives of which continue the dialogue with their partners regarding the constitutional state, is therefore guiding for other states.

REFERENCES: 1..M.Hartvig, Legitimation of the state through reception of constitution in Central and Eastern Europe, in: Magazine of foreign public law and international law. 59 (1999). 2..D.Mirow / S. Hülshörster, Transfer of the law and law transformation in focus of justice external policy, in: Newspaper of the German Union of Judges, 2011. 3. M. Hartvig(reference 1). 4. O. Luchterhandt, Constitution of the republic of Kazakhstan of 1995, in: Yearbook of the public law in the present time. Newseries, t. 47 (1999). 5. M. Sarsembayev, Parliamentary reform in the Republic of Kazakhstan, in: OSCE Yearbook, t. 13 (2007), p. 125 ff. 6. O. Luchterhandt(o. Fn. 4); M. Hartvig(reference 1). 7. M. Hartvig(reference 1). 8. R. Knieper / J. Pudelka, Republic of Kazakhstan: Example of a successful dialogue about the constitutional state, in: Economics and law in Eastern Europe, 2011. 9. S. Ruelke, Venice Commission and jurisdiction of constitutional courts, 2003. 10. C. Steinbeiß-Winkelmann, Legal and structural issues in establishment of administrative jurisdiction, in: New magazine of administrative law, 2012. 11. I. Rogov, Cooperation of IRZ Fund with Kazakh institutes, in: S. Hülshörster/ D. Mirow (editor in chief), Jubilee article to the 20th anniversary of IRZ, 2012, p. 439 f.; I. Merkel, Organization and development of legal cooperation between the General prosecutor’s office of the Republic of Kazakhstan and IRZ Fund, p. 441 f.

95 Valery ZORKIN – Chairman of the Constitutional Court of the Russian Federation, Honored Lawyer of the Russian Federation, Doctor of Law, professor

THE ROLE OF CONSTITUTIONS OF POST-SOVIET STATES IN THE FORMATION OF NEW STATEHOOD AND UNIFICATION OF SOCIETY

onstitutions adopted in the first half of the 1990s in the states which previously were the USSR republics play a special role in the history of such countries. On their base, the states managed to go through dif- Cficult years of large-scale, revolutionary transformations without demolishing society and losing the nationhood. By making a truly historical revolution, constitutions gave us the legal foundation which provided political, economical and social integrity of the countries which acquired sovereignty. Our constitutions are a supreme universal form of legitimation of Russia and Kazakhstan as sovereign democratic law-governed states. They represent the legal foundation of organization of our countries as political community of the nation under the rule of law. The constitutions have become a comprehensive juridical expression of main legal values which determine the face of the new nationhood. By virtue of its legal nature, the constitution represents valid base of ideological and political communion of the nation. This does not contradict to the principle of ideological and political (party) pluralism. The constitution is a post-partisan, trans-group, supra-ethnic, common source of ideological unification of communities in the countries which became sovereign within the post-Soviet territory. This is the base for the idea of constitutional patriotism of such countries which was important during a difficult period, when our Soviet patriotism lost its subject – the USSR. In the functional, legal context, the Constitution is the base, framework of the whole legal system. If this framework is broken or even timely weakened, the whole legislative system hangs up and then turns into amorphous, dysfunctional, controversial “mash”. The Constitution guarantees legal base of a modern civilized state based on principles of democracy, separation of power, priority of inherent and inalienable rights and freedoms of man and citizen, and law. Therefore, the state is brought to the field of the law. It must function as a legal subject.

96 Since a human being is a homo Sapiens, he is a legal being as well. This is connected to the idea of inherent and inalienable human rights and freedoms. And modern constitutional state is a state ruled by the law, i.e. a juridical union under common sovereign government on the base of juridical equality and justice. The right is a norm (measure) of freedom. According to the famous aphorism of Solon, “nothing in ex- cess”. In the state life, there shouldn’t be anything supra-legal in exercise of power. On this base, the power is connected to the law (authority of law and right of power). The power is as legitimate as it is based on the law. In itself, it is an expression of the law in its effect. This is the power of the law, but not arbitrary actions of power. Only through liberal measures and strong legal power, the regime of constitutional legitimacy, successful political and legal modernization can be held and new nationhood can be strengthened. For states of the former USSR, considering particular historical peculiarities of their development connected to economical, territorial and geopolitical factors, as well as to the situation of large-scale social transformation and cardinal reforms, strong state authority is essential, based on the law and vested with adequate organizational and legal forms. If there is no strong and flexible power capable of facing the challenges of time – the country drowns in chaos. If there is no strong and effective system of law – the state authority generates into abuse of power, and the country may dissolve. The purpose of the state authority is to eliminate conflicts (actual and potential) and disputes connected to them, remaining within the framework of supremacy of the law. The system of checks and balances is used for this purpose. During transitional period, our Presidents had to bear a lot of load. The task of the President as of the head of the state and protector of the Constitution is to provide interaction and coordination of authorities, although judges and legislator also take measures for this through their powers. It must be emphasized that the focus of the Constitution upon powers of presidential government saved Russia from the breakup of the state. Anyway, situation in Kazakhstan, in opinion of the outside observer, was not so dangerous. But the fact that the people of Kazakhstan changed the parliamentary Constitution of 1993 for the in fact presidential Constitution of 1995 is indicative. People of our countries realized the risks and found an adequate constitutional response. Not all countries of the post-Soviet area have been so lucky, and now we can see tragic consequences of this. Generally, according to the world experience, in transitional and crisis times, very strong and active executive authority is essential to preserve integrity and stability of the country and society. As is known, the USA democracy was achieved from the Great depression through highly authoritative new course of the President Roosevelt. In France, the Fifth republic was established by Charles de Gaulle when weak, in fact parliamentary Fourth republic was on the brink of civil war and breakup of the state. The Constitution of the Fifth republic is in force up to now. And now even ill-wishers of Charles de Gaulle recognize that he saved France from the civil war. There is another historical example. Being a parliamentary republic, Weimar Germany admitted Hitler’s rise to power. One can object that the present Federal Republic of Germany is typical parliamentary, not presidential republic. But in fact actual legal regime of chancellor republic in the FRG (by the way, not only in the years of defascization under K. Adenauer) in some ways excels the presidential republic. In the FRG, due to peculiarities of the party system, the chancellor exercises not only executive power, but has almost decisive value in the parliament. Opponents of the strong state often say that the state may get to antagonism with the society and turn into something self-sufficient from the means of common purposes realization. Such danger exists, and everything must be done in order to avoid subtraction of power from the people. But it is important that such words about the danger of antagonism didn’t again cover subtraction of people from the state, artificially created with destructive purposes. Some authoritative elements of the practice of political power exercise within the post-Soviet area are conditioned by peculiarities of transitional period from the non-legal past to new democracies. They are proportioned and limited by the Constitutions with expressed imperatives of the law and democracy which must be consistently specified in the legislative system. In general, this organizational and legal construction meets requirements of the complex social practice. The question is how it plays into the context of

97 other constitutional values. Does it throw them away, or this is about a form of government based, like a parliamentary republic, on principles of the rule of law, democracy, separation of power and rotation of the political elite? In theory, there is no optimized system. The optimized system is always and everywhere certain, and it doesn’t come down to a difficult choice between parliamentary republic and dictatorship. The state is a super- sophisticated system. And even far simpler systems (for instance, in engineering) the notion of optimality means very complex and tricky choice between purposes of optimization and optimality criteria. When purposes and criteria are the one – there is single optimality. When purposes and criteria are different, optimality seems to be different as well. But the Constitution as a maxim of power’s behavior in relations with the society and separate persons sets the legal scale to administrative optimality. There is nothing more valuable that the Constitution in the legal economy of modern countries (even in countries without written and unified constitution, it exists as a system of regulations established by different sources of the law). Without the whole complex of constitutional provisions, no spheres of social life can be developer. First of all, this refers to economics and politics. Economical life can’t exists on its own, it will always be either in a form of legal economy (this is how it should be according to the Constitution) or in the form of non-legal (“second”, “black”, “shadow”, etc.) economy. Likewise political power must be a legal, constitutional power. The Constitution as a formula of stable authority forms frameworks, limits of real politics, the whole political activity. There can be either Constitution and legal order or tyranny and abuse of power. There is no third option. Modern social reality in the world is of crisis character to a large extent. This is a very complex and controversial reality. In this reality, a lot of breaks are evident between authoritative, social and other institutes on one hand and substantial content of these institutes on the other hand. There are many breaks between the form and content, between due and existing, between the law as due and politics in its actual variety. However, we have to live today in this reality, we will have to build another, lighter and more successful reality. And although the Constitution, being the most important legal institute cannot come to be out of distorting and transforming influence of such reality, it is the base for such building. It is important that nationhood and Constitution as its legal center are conceived by the whole nation of the country as an invaluable conquest. Definitely invaluable, and definitely a conquest. It is invaluable, because the nation which list nationhood gets to the vortex of various adversities – material, cultural, spiritual and moral. In the end it disappears. And it is a conquest because the ways to constitutions got through the difficult period of actual non-nationhood after the USSR breakup. The fact, that nationhood has been formed in our countries, and the society is not segmented in the context of variety of views, political preferences, attitude to religion, national traditions – this is a historical result achieved by us through the years of living in accordance with constitutions. And this result must be developed, confirmed, defended and constantly replenished, remembering that the Constitution is not a frozen text or dusty manuscript, but a living document. It forms basic legal framework of the constantly changing worlds, and it must be considered in the context of this world. Guaranteed by it commonly recognized principles of equality and justice, democracy and law-ruled state, fundamental rights and freedoms must be interpreted and filled with richer specific social context corresponding to each new historical stage of development. It is essential against the background of global world contradictions and changes of the XXI century, in the context of which it’s not easy to combine real state sovereignty with openness to the world, and strong and flexible power with absolute respect of human rights and freedoms. Constitutions allow our countries, in entering the global world, not to wash out their own state sovereignty and national interests by foreign interests and legal chaos, but to preserve real state subjectivity.

98 Hasim KILIC – President of the Constitutional Court of the Republic of Turkey (2007 - 2015)

CONSTITUTIONALISM IN KAZAKHSTAN IN THE PROCESS OF DEMOCRATIC CONSOLIDATION

Introduction Kazakhstan, a friendly and brotherly country to Turkey, is an important example of the countries that took significant steps in transforming into democracy in Central Asia after gaining her independence from the Soviet Union. This process which started in the aftermath of the independence has shown a considerable progress in the past periods and it still continues to show further development. The Constitution of 1983, which marks the beginning of Kazakhstan constitutionalism after the Soviet period, constitutes a milestone of the transformation process in Kazakhstan rather than establishing a democratic constitutional system. It can be said that the constitutional amendments made later in 1995 accelerated the democratic consolidation process. On the basis of the background described above, this article will draw an outline of the Kazakhstan constitutionalism. We will depict the constitutional conjuncture of the period when Kazakhstan gained its independence and, later on, give a picture of the course of development that this process has shown until today.

Discussing the Constitution on the Axis of Value-Norm Constitutionalism is a part of the mankind’s struggle to protect the freedoms, establish the peace and build the future in the age of enlightenment. The peoples’ will to make their constitution requires that they take their own decisions, have say about their future and, briefly, that they draw up their own contract. This can be achieved only by the societies whose will is free from tutelage. The main point to be emphasized here is the close relation between the constitution and the constitutionalism. As these two concepts are incorrectly used in an interchangeable manner, the constitutionalism is perceived as a concept that comes along with the existence of a constitution and, therefore,

99 the constitutionalism is discussed from a narrow point of view. While the constitution is a projection of the structure of the state and the individual’s rights and obligations, the constitutionalism is a concept which suggests the idea that the authority of government should not be arbitrary at the governing power’s own will. The idea of constitutionalism has a very old tradition which dates back to the ancient times. The idea of constitutionalism, which defined a very different fact in the ancient age than that of today’s meaning, prioritized only the protection of order of the polis (city state) at those times. In the Medieval Age, the constitutionalism was shaped by the relations between the feudality and the kings. Therefore, it is not possible to mention a practice of restricted government in both ancient and medieval periods. It can be said that both Ancient and Medieval Ages incorporates a significant accumulation that lays the intellectual foundations of modern times’ constitutionalism. When it comes to Modern Age, the Constitution of the USA (1787), which documents the establishment of the United States of America, was a milestone as this constitution was the first example of a written constitution text all over the world. Thus, the constitutionalism period of the modern age started and a written-superior system of rules was set up to organize and regulate the state apparatus. This development caused the emergence of constitutions as a written norm and transformed them into a legal document. This understanding sees the constitution as a normative document; evaluates it in a hierarchy of norms and considers it to be the highest norm. The normative constitutionalism, which was effected considerably by the ideas of famous philosopher Hans Kelsen, assumes the constitution as the basic law and regards it as the source of other norms in the legal system. A natural outcome of this is it ensures the supremacy of the constitution which denotes that all actors of the constitutional order act in accordance with the principles and norms stated in the constitution. Constitution is the source of laws, bylaws, regulations etc. and other norms. This approach acts on the basis that, in theory, it is impossible for an unconstitutional norm to come onto the legal sphere and it also brings along the judicial review of the laws’ constitutionality. This situation, which requires a normative approach to the constitution, obliges to handle the law as a purity that is free from values. It is beyond doubt that this approach, when viewed with an understanding that considers administering the justice as a merit, seems quite coherent. However, this approach has been heavily criticized as it bears a potential to exclude “what is human”. In other words, the normative approach, which establishes a metaphysic field for itself, creates and executes the law in this field but it also faces the risk of neglecting what is human. Then, what is the remedy for this problem? If the law is for people, then how can we establish the justice with a law that excludes the human and reduces it to certain technical details? The answer to this question must be sought in an understanding of law which adopts human dignity as the core value. Therefore, if the constitution which is the basic norm and the source of legal order is constructed upon this core value, then the rights and freedoms of the individuals who are subject to that legal order can be protected. As a matter of fact, this is why the basic philosophy which started the written constitution tradition assumed the human dignity as the core value. We believe that human dignity is a very strong resource. This resource has deeply affected the politics, economics, social life and cultures since the very beginning of the mankind’s history until today. The “human dignity”, which encompasses the fundamental rights and freedoms as well as the sense of justice, is the highest value protected by all belief systems, especially the divine religions, and civilizations as it bears the traces and signs of the creator. When the texts of the constitutions around the world are examined, we see that the very first articles guarantee the protection and securing of the human dignity either explicitly or implicitly. The human dignity, which is inherent in the foundation of the modern constitutionalism, has also been effective on the form of government? established by that constitution. A form of regime to be established by a constitution that grounds on the individual. At this very point we have the democracy as the most important

100 alternative. Democracy is the choice of all modern constitutions as a form of regime. In the widest sense, democracy is defined as “the government of the people, by the people, for the people”. What’s decisive in this definition and what separates the democracy from other authoritarian regimes is “government by the people”. And, the people can be the actor of the government only if they participate and determine the decision-making mechanisms. The relation between the constitution and democracy cannot be just restricted to the fact that modern constitutions adopt the democracy as a form of regime. Democracy is also decisive in the characteristics of a modern constitution as well. That is to say, if a constitution made in a democratic way then it gains a democratic character and, of course, a democratic constitution adopts the democracy as the form of regime. When we look at the relationship between movements of constitutionalism in the meaning of constitution- making and the process of transformation into democracy, we see a positive correlation between them. At times when the transformation into democracy is on the increase, the number of (democratic) constitutions can be said to increase as well. In his book titled “The Third Wave: Democratization in the Late Twentieth Century”, one of the major works on this topic, Samuel P. Huntington states that there has been three waves of democratization and two reflux waves (departing from democracy) in the historical process until today.

Waves of Democratization and Waves of Reflux [4, с.16] The First Wave of Democratization 1828-1926 The First Wave of Reflux 1922-1942 The Second Wave of Democratization 1943-1962 The Second Wave of Reflux 1958-1975 The Third Wave of Democratization 1974-...

Huntington states that the first wave started with the American and French Revolutions between 1828- 1926 and that it turned into a reflux wave with the establishment of authoritarian and totalitarian regimes a short while after the World War I. According to Huntington, the second wave of democracy started with the victory of Allied Powers in the World War II. The victory of the allied powers which are governed by democratic regimes served as a locomotive in the transformation of many authoritarian and totalitarian regimes into democracy. However, this wave faced a reflux wave at the end of 1950’s. The prominent precursors of the said reflux wave were the governments being toppled by military coups in Latin America and the Mediterranean basin and the appearance of state of emergency regimes in Asia. However, this reflux wave also triggered the third wave of democratization and many of the authoritarian-totalitarian regimes transformed into democracy with the fall of military regimes after 1974. As we can see, the democracy has emerged as the mainstream form of regime in certain periods of the historical process. Another example to be mentioned in this regard is that, after the fall of Berlin Wall and the collapse of Soviet Union, the countries which were a part of the Union (Former East Block and Central Asia) gained their independence and these authoritarian regimes started to strive at transforming into democracy. Not only transformation into democracy but also transformation into a (democratic) constitutional system has occurred in the form of certain waves. The first of these waves started with the American and French revolutions. The second wave started with the 1948 Revolutions in Europe: The third wave expresses the constitution-making process in such countries as Czechoslovakia and Poland. In this, period Weimar Constitution was made in Germany. The fourth wave refers to the emergence of the constitutions in such countries as Germany, Japan and Italy, who lost the World War II. The fifth wave is the product of a decolonization process. The main characteristics of this period is that former English and French colonies gained their independence, emerged as new states and made their constitutions during the period from

101 1940’s to 1960’s. The next constitution-making wave is the collapse of the military dictatorships in South America and the constitution-making process of the new democracies that replaced these dictatorships. The last constitution-making wave, which is perhaps the reason for the composition of this article, refers to the constitution-making process of the countries that gained their independence after the collapse of the Soviet Union in the beginning of 1990’s. As we can see, although the number of democratic transformation processes and constitution-making processes do not match in number, there is a significant overlap of these in terms of time periods. The beginning of the first wave of democratization overlaps with the first, second and third constitution-making waves, the second wave of democratization corresponds to the fourth and fifth constitution-making waves and the third democratization wave matches with the sixth, seventh and eighth constitution-making waves. This leads us to the conclusion that the effort for transformation into democracy requires a constitutional system as well.

Constitutionalism in Kazakhstan and Fundamental Rights and Freedoms in the Constitution The process will be mentioned briefly on the basis of the transformation period paradigm, the making of the new constitution and fundamental principles will be dealt with and the approach to fundamental rights and freedoms will be discussed having regard to the amendments to the Kazakhstan Constitution.

Constitutional Developments The restructuring policy which was started in the USSR in the second half of the 1980’s had certain reflections on Kazakhstan as well. Nursultan Nazarbayev came to power in 1989 in the result of the turmoil in that period and he was appointed as the President in 1990. Indeed, the country experienced a transformation period, a process of transforming into liberal democracy, beginning from that date until the making and enactment of the constitution (until 1995). With the collapse of the USSR, Kazakhstan declared its sovereignty on 25 October 1990 and proclaimed its independence on 16 December 1991. After gaining its independence, the government of Kazakhstan strived to settle the democracy and fundamental rights and freedom and to establish the free market economy. Similar to other republics, the constitutional reconstruction process of Kazakhstan started with amendments to the socialist constitution of that time and making new regulations on the political system of the country conforming to this period. Nevertheless, the immediate course of the political developments in the country showed the requirement to make a new constitution. A Constitution Commission to be presided by the President was set up to work on the draft of the new constitution and the provisional Constitution of the country was adopted by the Supreme Soviet on 28 January 1993. Thus, the process for the elimination of legal regulations inherited from the Soviet time was accelerated. This Constitution adopted in 1993 was the product of the pursuit of a unique compromise between the past and the future. Therefore, it was evident from the very beginning that this Constitution would not be long-lasting. Anyway, the achievements of the country led to the abolition of the Constitution and adoption of a new Constitution that suits to this new period. This new Constitution was adopted with a 89% consent of the public in the referendum held on 30 August 1995. Certain amendments were made to this Constitution on 7 October 2003, 23 April 2003, 21 May 2007 and 2 February 2011. All these amendments show that the democratic reform process continued without any slow down in Kazakhstan. Among these amendments, those made in 2007 are of special importance. With the Constitutional amendments in 2007, the term of office of the President was reduced from 7 years to 5 years beginning from 2012 and it was prohibited that one and the same person be elected the President of the Republic more than two times in a row and the powers of the parliament was extended. Moreover, there were some other important amendments as the delegation of the procedure of forming the Government to political party that has the

102 majority, the election of the deputies by proportional representation, increasing the number of the deputies etc. The most important result of these amendments is that certain components of the parliamentarian system were incorporated into the presidential form of republic. The constitutional system suggested by the constitution can be summarized briefly as follows: Beginning from the very first article, the constitution acknowledges that highest values are an individual, his life, rights and freedoms and establishes the basic characteristics of the state on these values. “The Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state whose highest values are an individual, his life, rights and freedoms”. Therefore, according to the Constitution, the highest value of the state is the individual and his rights and freedoms. Our conviction is that this provision proclaimed in the first article acknowledges the foundations of the constitutional order. Furthermore, other fundamental principles cited in the said article can not be claimed to be equally important. The Constitution declares the separation of powers and stipulates a “checks and balances” mechanism between legislative, executive and judiciary. The state bodies are not allowed to exercise a public power that is not vested in the Constitution or laws (Art. 3). However, when his powers in the constitutional system are taken into consideration, the decisive actor of the system is the Head of State, i.e. the President of the Republic. As a matter of fact, the articles of the Constitution regulating the powers and duties of the President affirm this position. When we look at Article 45 of the Constitution and the other articles we see that the powers and duties of the President exceed to a great extend those vested to a head of state in a classical parliamentarian system. The difference between this system and the parliamentarian system is that the President is elected by popular vote and, furthermore, he is furnished with quite extensive powers. It is notable that the President holds excessive administrative powers in this system as distinct from the classical parliamentarian system. Therefore, when viewed from this aspect, the constitutional system of Kazakhstan seems to be more compatible with the semi-presidential system (or semi-parliamentarian system). The President has many powers and duties as to appoint regular and extraordinary elections to the parliament, after consultations with the political parties represented in the parliament, to submit for consideration to the Majilis for consent a candidacy of the Prime Minister, to appoint a Prime Minister with the consent of the parliament, to release him from office, to appoint and recall ambassadors, to approve state programs, to adopt a resolution on conducting the referendum, to conduct negotiations and sign international treaties, to sign ratification instruments, to receive letters of credentials and recall from diplomatic and other representatives of foreign states accredited to him, to act as the Commander-in-Chief of the Armed Forces of the Republic and to appoint and replace the highest command of the Armed Forces etc. The legislative power is executed by the Parliament in Kazakhstan. The Parliament is regulated under Article 49 of the Constitution and the articles following it. The Parliament of Kazakhstan has a bicameral structure, one being Majilis and the other Senate. The Senate shall be composed of deputies elected, in an order, on two persons from each province (oblast), major city and the capital of the Republic of Kazakhstan. Fifteen deputies of the Senate shall be appointed by the President of the Republic taking into account the national-cultural and other significant interests of the society. The Majilis, which constitutes the other wing of the Parliament, shall consist of 107 deputies. It is regulated under the Constitution that the term of office of Senate deputies shall be six years and term of the term of office of the Majilis deputies shall be five years. The election of the deputies shall be carried out on the basis of the universal, equal and direct right under secret ballot. Nine deputies of Majilis shall be elected by Assembly of the people of Kazakhstan. Regular elections of the deputies of the Majilis shall be held no later than two months before the termination of the powers of current the Parliament.

103 As it is described above, while the Senate acts as an upper chamber that is composed of both the elected and appointed deputies, Majilis is substantially composed of deputies elected by the public. The Majilis and the Senate may convene either in a joint session or separately. Parliament at a joint session of the Chambers shall perform certain duties which are the pillars of the constitutional system such as to introduce changes and additions to the Constitution upon proposal, to approve the budget reports, to delegate legislative powers for a term not exceeding one year to the President, decide issues of war and peace. The Parliament confirms the republican budget and makes changes and additions in the budget, establishes and cancels the state taxes and tax collections, establishes the procedure for resolving the issues of the administrative-territorial division of the Republic of Kazakhstan, decides issues of state loans and rendering of economic and other assistance by the Republic, decides issues of amnesty to citizens, ratifies and denounces international treaties of the Republic, discusses the reports on execution of the national budget, carries out second discussion and voting of laws or articles of the law which caused objections of the President of the Republic, in a month from the day of a direction of objections. Certain duties shall belong to exclusive jurisdiction of the Senate. The main ones of such duties are the election and appointment of the judges of the high judiciary and other high ranking officials. As per the Constitution, the government shall exercise the executive power. The government, which has a nature of a collegial body, seems entrusted with authorities similar to those in classical parliamentarian system. The government is responsible before the President of the Republic in its entire activity and, in the cases provided by the Constitution, before the Majilis and the Parliament. Suggestions about the structure and composition of the government shall be submitted to the President of the Republic by the Prime Minister within ten days after his appointment. The government holds first degree liability for the socio-economic policy of the state, its defense policy and guarantee of public order. The government presents to the Parliament the budget and a report about its performance, introduces draft of laws into the Majilis and ensures enforcement of laws. Some of other duties of the government are to develop measures for the conduct of the foreign policy of the Republic, to audit and control the activities of ministries, other central and local executive bodies and to annul or suspend completely or partially, the effect of acts of these.

Judiciary The courts and the judiciary power are regulated under Article 75 of the Constitution and the articles following it. However, the Constitutional Council is regulated under Article 71 to Article 74 of the Constitution. The Constitutional Council is commissioned to By appeal of the President of the Republic of Kazakhstan, the chairperson of the Senate, the Chairperson of Majilis, not less than one-fifth of the total number of deputies of Parliament or the Prime Minister, the Constitutional Council shall decide on the correctness of conducting the elections of the President of the Republic, deputies of Parliament, and conducting an all-nation referendum in case of dispute, consider the laws adopted by Parliament with respect to their compliance with the Constitution before they are signed by the President, conduct the constitutionality review of the decisions adopted by the Parliament, express opinion on the international treaties of Kazakhstan with respect to their compliance with the constitution before they are ratified, officially interpret the norms of the Constitution, express an opinion in cases stipulated by paragraphs 1 and 2 of Article 47 of the Constitution. Furthermore, the Constitutional Council shall consider and conclude the appeals of courts of law in cases stipulated by Article 78 of the Constitution The Council shall consist of seven members whose term of office is six years. The ex-Presidents of the Republic shall have the right to be life-long members of the Constitutional Council. According to Article 74 of the Constitution, the decisions of the Council shall come into effect from the day they are adopted, shall be binding on the entire territory of the country, final and not subject to appeal.

104 The power of judiciary in the Republic of Kazakhstan shall be exercised by the courts. Judicial power shall be extended to all cases and disputes arising on the basis of the Constitution, laws, other regulatory legal acts and international treaties. Decisions, sentences and other judgments of courts shall have an obligatory force on the entire territory of the country. As per Article 77 of the Constitution, a judge when executing justice shall be independent and subordinate only to the Constitution and the law. According to Article 78 of the Constitution, the courts shall have no right to apply laws and other regulatory legal acts infringing on the rights and freedoms of an individual and a citizen established by the Constitution. If a court finds that a law or other regulatory legal act subject to application infringes on the rights and freedoms of an individual and a citizen, it shall suspend legal proceedings and address the Constitutional Council with a proposal to declare that law unconstitutional. The independence of the courts shall be protected by the Constitution and law

Fundamental Rights and Freedoms Section II of the Constitution regulated under Article 10 to Article 39 of the Constitution is titled “the individual and citizen”. This section also regulates the fundamental rights and freedoms. As we can conclude from the title of the section, the Constitution cites the individual before the citizen and, thus, expresses the status of the relationship between the individual and the state. Although the Constitution does not explicitly make a ranking of fundamental rights and freedoms on the basis of a tripartite classification called Jellinek classification, it adopts an understanding of natural law. Article 12 which reads as “Human 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 legal acts” establishes this understanding explicitly. Article 13 regulates the protection of fundamental rights and freedoms and Article 14 regulates the principal of “equality” for everyone before the law and courts. The rights that are regulated in the Constitution under the rights of negative status title as per Jellinek classification are: right to life is regulated in Article 15 and right to personal liberty is regulated under Article 16. Article 17 shows an important indicator for the perception of individual in the Constitution. This article which governs “the human dignity” states that “no one can be subjected to torture, violence or other treatments and punishments that are cruel or humiliating to human dignity”. Other fundamental rights and freedoms in the Constitution which may be cited under the rights of negative status are the protection of private life, freedom of religion and conscience, freedom of speech and creative activities and freedom of assembly. Economic and social rights and freedoms which are called rights of positive status are also regulated in the Constitution. The main ones of these rights and freedoms are right to freedom of labor, right to health and right to education. Another category of rights regulated under the Constitution is the participatory rights, which are called rights of active status. For example, the right to elect and be elected as regulated under Article 33. Article 35 which governs the duty and responsibility to pay tax and the duty and responsibility to perform military service regulated under Article 36 may be cited among the rights and responsibilities under this section

Conclusion and assessments The Constitution of 1995, which is the most important document of Kazakhstan’s constitutionalism today, draws attention as a constitution that bears important traces of modern constitutionalism. This constitution contains significant regulations on the protection of individual’s fundamental rights and freedoms which is the basic logic of constitutionalism with regards to regulating the powers of state and the fundamental rights and freedoms. Kazakhstan constitutional system, which is not a classical parliamentarism in the strict sense, bears certain characteristics of semi-presidency as the President is elected by direct popular vote and s/he has vast

105 administrative authorities. These powers of the President on the legislative, executive and the judiciary place him in the center of the system. However, the bicameral structure of he parliament and the existence of the Constitutional Council are the checks and balances elements of the constitutional system. The Constitution, which focuses on the human dignity with regards to the fundamental rights and freedoms, adopts the understanding of natural law. In this context, it includes the regulations adopted by the modern world on such issues as both the civil rights and freedoms and economic and social rights and freedoms. Although the history of the Kazakhstan constitutionalism in contemporary meaning does not date back to long past, it stands out in its own region as a vary successful practice. As a matter of fact, the efforts to establish a democratic constitutional system after the collapse of the Soviet Union and to consolidate such a system does still continue today. Kazakhstan’s this effort has the potential to constitute an example to other countries in the region.

REFERENCES: 1. Leslie Lipson, Siyasetin Temel Sorunları, Çev. Fügen Yavuz, İş Bankası Kültür Yayınları, İstanbul, 2005, p. 253. 2. See Adil Şahin, “Siyasal Düşünceler Tarihinde Sınırlı Devlet Fikrinin Kadimliği Ya da Genel Kamu Hukuku Bağlamında İnsan, Özgürlük ve Devlet İktidarı Algısındaki Evrilme”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, C. XV, Y. 2011, Sayı. 3, 2011, pp. 311-362. 3. See Serdar Gülener, “Batı Siyasal Düşüncesinde İktidarın Sınırlandırılması Arayışları: Bir Dönemleştirme”, Finans Politik ve Ekonomik Yorumlar, C. 48, Sayı 552, pp. 21-31. 4. See Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, 1991, p.16. 5. Ibid., p. 17. 6. Ibid., pp. 18-19. 7. Ibid., pp. 19-22 8. Discussing whether transition to above-mentioned democracy can be stated as a»wave», is not our purpose here. We rather aim at drawing attention to periodical trends of democracy by the help of this example. For arguments explaining Post-Soviet Era on the basis of fourth wave, regarding Huntington’s wave methaphor, see Michael McFaul, “The Fourth Wave of Democracy and Dictatorship: Noncooperative Transitions in the Postcommunist World”,World Politics, Vol. 54, No. 2 (Jan., 2002), pp. 212- 9. See. Jon Elster, “Forces and Mechanisms in the Constitution-Making Process”, 45 Duke Law Journal, 1995, pp. 364-396.

106 Petr MIKLASHEVICH – Chairman of the Constitutional Court of the Republic of Belarus, Honored Lawyer of the Republic of Belarus

SUPREMACY OF THE CONSTITUTION – THE FOUNDATION OF DEMOCRATIC DEVELOPMENT OF THE REPUBLIC OF KAZAKHSTAN

n civilized world, each nation determines the vector of democratic development basing on the historical experience, national traditions, spiritual values and ideals. I As an expression of public consent regarding the ways of development, a constitution is adopted which is in fact a legal foundation of the society and state. The Constitution serves as a vivifying base of the national law: its principles and provisions come laden with organizing inception, provide unity, interconnec- tion, balance and harmonious development of all elements of the legal system. Strategic course of the Republic of Kazakhstan and Republic of Belarus is based on the constitutional values and purposes both in internal and foreign policy. In accordance with the constitutional provisions guaranteeing the most important principles of the structure of society and state, the mechanism of the state authority exercise, rights and freedoms of citizens, our countries have been dynamically developing and interacting for over two decades, asserting themselves as full members of the world community. The Preamble of the Constitution of Kazakhstan establishes priorities of the Kazakh nationhood development. It is based on the commonness of historical destiny, originality of the Kazakh land, peacefulness, adherence to principles of freedom, equality and accord, striving to take a worthy position in the world community, realization of high responsibility in front of the present and future generations. Almost similar approach is announced in the Preamble of the Belarusian Constitution, which states that the people of the Republic of Belarus accept the Constitution on the base of their inalienable right for self-determination, basing on the centuries-long history of the Belarusian nationhood development and willing to provide civil consent, firm foundations of people power and state ruled by the law.

107 In accordance with the Constitution, the Republic of Kazakhstan represents itself as democratic, secular, law-governed and social state, the highest values of which are the human being, his rights and freedoms. The Constitution also provides that the foundational principles of the Republic’s activity are public consent and political stability, economic development for the good of the whole nation, Kazakhstani patriotism, and solution of the most significant issues of the government life through democratic methods. These fundamental constitutional values conditioned by historical development of social processes, guaranteed considering national ideas, moral and spiritual ideals, as well as human values, underlie functioning of the whole state mechanism of the Republic of Kazakhstan. Priorities of Kazakhstan’s development established in the Constitution and based on Kazakhstani patriotism became a starting point for internal and foreign policy consistently held by the First President of the Republic of Kazakhstan N.A. Nazarbayev. Over the past years, traditional for Soviet jurisprudence concept of declarativity of constitutional provisions and their general character has been overcome within the post-Soviet area, including Kazakhstan. The Constitution of Kazakhstan which serves as a base for constitutional and legal strategy is “living”, constantly influencing upon social, economical and political processes in the country. Along with that, direct application of the Constitution conditions integration of the constitutional model of organization of social relations to social practice directly, and through legislative elaboration of legal mechanisms for the sake of full realization of citizens’ rights and freedoms guaranteed by the Constitution. It should be noted that at the present time, investigation in the sphere of strategic features and functions of the Constitution has become an important direction in the legal studies in the world. Strategic planning on the base of the Constitution for long and mid-term is one of the key factors of Kazakhstan’s major success in all spheres of living environment. The established development concept “Kazakhstan-2050” speaks for consistent purposeful formation of the Kazakh society and the state on the constitutional base. Presence of the state strategy as a legal phenomenon in Kazakhstan is, undoubtedly, a merit of the Leader of the Nation N.A. Nazarbayev. He is the author of the wise words: “A strong state deals not with a policy of survival, but with the policy of planning, long-term development and economical growth”. In elaboration of the state’s policy strategy, improvement of the legal system, it’s necessary to follow the constitutional and legal doctrine, contribution to which is made by the Constitutional Council of Kazakh- stan, which approves supremacy of the Constitution by its decisions and facilitates development of efficient mechanism for protection of human rights and freedoms. Under modern conditions, it’s important to provide further democratic development in evolutionary way, preserving the constitutional identity and using regulative potential contained in the constitutional provisions.

108 Přemysl Sobotka – Vice-President of the Senate of the Parliament of the Czech Republic

have been lucky to visit many interesting countries from Canada to New Zealand and to be honest, I am really glad that I could visit the interesting and charming Kazakhstan no fewer than three times. I have Ito admit that I was really curious before my first visit to that country so distant from the Czech Republic because I did not know much about it – for example that many Kazak troops fought to liberate our country from Nazi occupation in 1945. All my expectations were exceeded. I especially remember the city of Astana whose exceptional energy and optimism of its mainly young residents made a strong impression on me. I ended up in an extremely interesting country with a rich history and culture, attractive nature for us, visitors from Central Europe, and hearty and hospitable people. I ended up in a country that has undoubtedly bright future and that is an interesting partner for a mutually advantageous economic cooperation even for us, Czechs from a faraway country in the heart of Europe. An old Kazakh proverb says: ”A smart brain can feed a hundred heads, a dumb brain not even its own head.” Therefore, we politicians and diplomats should open doors towards the world for the smartest and most promising businessmen and thus contribute to the development and economic prosperity of our countries. I am glad that I have always found sympathy for that idea during my meetings with top representatives of Kazakhstan. Coming from Europe, sometimes one can´t help judging everything through the eyes of his homeland. In our country, there is a problem causing many debates, namely how to combine traditions and modern style – for example in architecture or social life. I appreciate the courage of Kazakhstan that is becoming a modern economically developed country and at the same time it is able to combine its rich cultural traditions, which were not rooted out even by dozens of years of the Soviet rule, with modern trends and keep them in balance. So I wish to your large, very interesting and beautiful country and its folks every success in your efforts.

109 Alexandru TANASE – President of the Constitutional Court of the Republic of Moldova

VALUE OF CONSTITUTION AS A FUNDAMENTAL SOURCE OF LAW IN A DEMOCRATIC STATE

great politician, lawyer, scholar and writer of Moldova, Constantin Stere , stated that the State is a legal attire of people. Once we accept that the State is a legal attire of people, the legal attire of the State is the Constitution. A Emergence of a Constitution is in its essence a revolutionary act or it may intervene in the revolutionary phase of an exceptional evolution of the society. The adoption of new constitutions in post-Soviet states was a logical consequence, while drafting the constitutional text has undergone complex political and legislative processes. The new constitutions of these states represent a political and legislative masterpiece reversing the renewing spirit of the society coming from those old times loaded with history. At the same time, along with political options they are an expression, a reflection of strong convulsions of delivering new democratic societies. Adoption of a Supreme Law represented the decisive moment in embodying the fundamental goals of these states following the disintegration of the USSR. The Constitution provided each state with a constitutional order, according to their ideals and aspirations. Following centuries of totalitarianism, peoples from the former Soviet space have acquired the values of civilized world – values based on respect for and advancement of citizen’s rights and freedoms and on equality before the law. In this context, according to its Constitution, the Republic of Kazakhstan is constantly asserting as a democratic state functioning under social law, where the human being and the human rights and freedoms are declared supreme values. These values are conferred to any human being from birth, being absolute and intangible, while the Constitution imposes the legislator to observe them and to recognize the priority of human rights. An important goal of new constitutions was to build from scratch new state institutions that are inherent for the existence of an independent state, as well as to provide these institutions with mechanisms of democratic functioning, in line with people’s aspirations. During those two decades from the adoption of the Constitution there certainly were times of quest, challenges and achievements. At the same time, the Basic Law shall keep intact people’s aspirations for a dignified life within a social state governed by the rule of law. In the framework of a democratic state, the Constitution shall fulfil one of the most important missions – to be a factor of stability for the society. The Supreme Law safeguards the citizens by guaranteeing fundamental human rights and freedoms and by ensuring the respect for the separation of state powers and for political pluralism. Enshrining political, ideological and ethical values which are at the core of functioning of a political system, the Constitution represents the essential

110 guarantee for a legal order and seeks to enact a political balance and social harmony. In a state governed by the rule of law the Constitution, having recognized and respected human dignity, fundamental rights and freedoms, having guaranteed the supremacy of law, having provided a system of checks and balances, of eligibility and liability of authorities, of judicial independence, is a general dynamic model of this system of values and aims at guaranteeing a steady progress of the society. The success of this mission depends on the clarity of these values in the text of the Constitution, on their durability in the society and on the degree of the supremacy of Constitution at any level of social life. The constitutional text is not a mathematical formula which would not leave room for interpretation. Constitution, in general, is the result of particular historic, political, social and economic conditionality which attributes to the Supreme Law a constitutional identity. Thus, interpretation and enforcement of constitutional provisions should only be made in the spirit of constitutional identity of the state. Therefore, in this respect the most prominent role is played by the Constitutional Court. Constitutional judges provide the interpretation and application of the Constitution, defining and upholding the check and balance, optimal deployment of political processes and the condition of constitutionality of the rule of law, of the rights and freedoms of citizens, with great and profound political, economic and social implications for the whole society. The matters referred to the constitutional judge are often similar for the states transiting common stages of development or facing similar issues of their societies’ development at a certain phase of evolution. Therefore, at the national level, the Constitutional Court plays an important role in applying the principles of rule of law, as this does not imply a blind enforcement of official acts of authorities, but it should reside in adopting normative acts in line with the principle of separation of powers and strict observance of fundamental freedoms. The idea of rule of law does not imply any formalism and therefore constitutional review is not limited to a check of compliance of the acts with the constitutional provisions, it should rather carry out a review based on the concept of block of constitutionality, political and philosophic principles that embody the rule of law and shape the society envisaged by the power. A Constitutional Court will always be exposed to more or less strict remarks, as its decisions cannot satisfy all the parties concerned. This is why, in a democratic society anything may be criticized, not excepted a decision of a Constitutional Court, however such a critical remark should not lead to the ruining of the institution itself. At the end of the day, the attitude towards the decisions of the constitutional judge reflects the level of political maturity of political players and of the society overall. The acts of a Constitutional Court carry an erga omnes effect and are binding and enforceable for all subjects, with no regard to the level of authority. These acts emphasize the consistent, objective and exigent nature of constitutional jurisdiction in order to ensure the supremacy of the Constitution and the respect for fundamental human rights and freedoms, at the same time stressing the manner of perceiving the idea of constitutionality and the role of the Court as an exponent of stability in the society and as a regulator between the branches of state power. Carrying out these attributions with impartiality demonstrates the capacity of the Constitutional Court as an essential component of the rule of law. Although the concept of rule of law has an abstract nature, the respect for legal prescriptions at every level, from a practical point of view represents an exegesis of the present, aiming at passing over the experiments of totalitarian past. In this regard, the rule of law should uphold democracy, including by way of an appropriate constitutional jurisdiction. Only in this case a modern democracy turns into a strong and well-functioning system to the benefit of people. At the same time, given the fact that democracy and primacy of law are fundamental constitutional values, public authorities are bound to act in the spirit of loyalty toward the Constitution, the loyal behavior being an extension of the principle of checks and balances. The scrupulous observance of principles and supreme values represents a practical test of a Constitution’s efficiency in a state governed by the rule of law. Depriving citizens of its interpretation and functional applicability would mean to deprive them of what is considered to be the most important public good – confidence in its efficiency. When totalitarian regimes fell, which process lasted for decades and resulted in radical changes in all structures of the state and the society, reorganization of these societies based of democratic principles of the rule of law constituted the only way of development for former socialist states. Building the rule of law constituted a target set by the societies where dictatorial regimes were overthrown, as only having rule of law in place there may be ensured and developed the connection between the state and the person. A state governed by the rule of law shall exist not only in Constitution, but de facto as well, what the legal philosopher Hans Kelsen used to call “self-obligation of the state”, meaning that the state as a lawmaker should freely be subjected to this law.

111 Park Han-Chul – President of the Constitutional Court of the Republic of Korea

The Achievements and Expectations for the Constitutional Council of the Republic of Kazakhstan

he Republic of Kazakhstan has achieved economic development by using its abundant resources and through successful transformation into market economy. The international community acclaims the re- Tmarkable progress. I would like to express my sincere respects for the efforts of Kazakhstan people to build a society in which democracy flourishes and human rights are protected at the highest level. The Constitution of the Republic of Kazakhstan provided the foundation for the transition from the totalitarian regime to a country under the principles of democracy and the rule of law. Adopted on August 30, 1995, the Constitution of the Republic of Kazakhstan recognizes the supreme value of individuals’ fundamental human rights and freedom. I congratulate you on the 20th anniversary of the Kazakhstan Constitution. The Constitutional Council of the Republic of Kazakhstan has vigorously played the role as a guardian of the Kazakhstan Constitution to make sure that the Kazakhstan Constitution takes root in the society. The Constitutional Court of the Republic of Korea and the Constitutional Council of the Republic of Ka- zakhstan have maintained their close relationship and mutual cooperation, since the visit of the former chairman of the Constitutional Council, the late Kim Jury Alekseevich, to the Republic of Korea. I believe that the notable contribution of many Korean-Kazakhstanis, including the late chairman Kim Jury Alekseevich, to the development of the Republic of Kazakhstan and its Constitution demonstrates the special bonding between the two countries. In Kazakhstan, the Declaration of Independence, which was adopted on December 16, 1991, mandated the establishment of a constitutional court. The institution of a constitution as the supreme law of the land, and the birth of the Constitutional Court empowered with the judicial authority to adjudicate the constitution, have set the foundation for Kazakhstan to take steps toward the development of constitutional democracy.

112 The Constitutional Court of Kazakhstan made a crucial contribution to the development of democracy and the rule of law in Kazakhstan, upholding the supremacy of the constitution and promoting fairness in election system, among others, through its twelve decisions until the dismissal in October 1995. The Constitution of the Republic of Kazakhstan, adopted by referendum on August 30, 1995, proclaims that Kazakhstan is a democratic, secular, legal and social state (Article 1) and that the people shall be the only source of state power (Article 3(1)). It embraces the principle of the separation of powers (Article 3(4)), declares the Constitution as the highest law (Article 4(2)), and guarantees political diversity. The Constitution further pronounces the constitutional protection of human rights (Article 12) and sets forth the rights and duties of the citizen and individuals, including the right of everyone to be recognized as a subject of law (Article 13), right to equality (Article 14), right to life (Article 15), the right to physical liberty (Article 16), right to dignity (Article 17), protection of privacy (Article 18), freedom of speech(Article 20), freedom of conscience (Article 22), freedom of association(Article 23), right to housing (Article 25), right to property (Article 26), right to social welfare (Articles 28 and 29), right to education (Article 30), right to environment (Article 31) and right to elect and be elected (Article 33). The Constitutional Council of the Republic of Kazakhstan, replacing the Constitutional Court, was established in February 1996 under the Constitution of 1995. The Constitutional Council of the Republic of Kazakhstan exercises authorities as the final institution to review matters on election disputes, constitutionality of laws adopted by the Parliament before they are signed by the President, constitutionality of decisions adopted by the Parliament and its Chambers, constitutionality of international treaties before they are ratified, authoritative interpretation of the Constitution, impeachment procedure, and the courts’ request to declare a law unconstitutional. Since its establishment, the Constitutional Council of the Republic of Kazakhstan has reviewed the limits of constitutional amendments permitted under the Constitution and decided on whether the proposal to a national referendum for an amendment to the Constitution was sufficiently predictable and clear. In addition, the Council offered constitutional explanations on the governing structure of the State and the principles of organizations by confirming, for example, that the people of the Republic of Kazakhstan realize their aspirations and grant the greatest legitimacy originating from their sovereign power through elections. The Council has also proclaimed to protect fundamental rights of the people, including freedom of expression and the rights to private property and relief from violations. It safeguarded the right to physical liberty by narrowly interpreting the extent of detention without a warrant permitted under the Constitution. Also by acknowledging the importance to alleviate social disparity and to promote a decent living for the people, the Council laid a firm ground for Kazakhstan to build a social state, which the country seeks to achieve along with the development of democracy and the creation of civil society. Furthermore, the Council provides to the Parliament its authoritative interpretation on the precise meaning of the Constitution. It annually reviews the laws and practices of the government whether they comport with the Constitution and presents before the Parliament its recommendations to ensure that the government uses its power in consistency with the Constitution; the Council thereby offers an opportunity for the government bodies to examine whether they are exercising their public powers in accordance with the Constitution. The Council, as a member of the Venice Commission (European Commission for Democracy through Law) and of the Association of Asian Constitutional Courts and Equivalent Institutions, contributes to the international cooperation in promoting human rights, democracy and the rule of law. Through these activities, the Constitutional Council of the Republic of Kazakhstan has concretized the Constitution as the supreme law of the land and, by embracing their ethnic and religious diversity, bonded Kazakhstani people together. This cultivated the basis upon which the Republic of Kazakhstan could develop its market economy and democratic system such as election. These achievements will serve as the precious stepping stones for the realization of the rule of the Constitution in every corner of the society.

113 The Constitutional Council of the Republic of Kazakhstan, inheriting the achievements, is now asked to devote itself even further to secure the supremacy of the Constitution, advance democracy and the rule of law, and guarantee fundamental rights of the citizen. In this respect, the roles of the Council to protect fair and equal election system and freedoms of expression, assembly and association, which form the core of democracy and people’s sovereignty, as well as to promote a fair and just judicial system that respects the due process of law, are critical. When it occurs, for example, that some procedural regulations, such as registration requirements for political parties or the press, hinder the realization of an important human right, I trust that the Constitutional Council of the Republic of Kazakhstan, the institution with the highest authority on the Constitution, will take the lead to enhance the system. I believe that the Constitutional Council of the Republic of Kazakhstan will play an active role in protecting the rights of women and children and safeguarding the rights of minority groups against any discrimination against them, thereby contributing to the integration of Kazakhstan. In the end, the Constitutional Council can gain trust from Kazakhstani people when it is truthful in protecting their rights, and only then, the people will accept and respect the decisions of the institution of constitutional adjudication. As Kazakhstan society grows, it will see a much wider diversification in the interests of the people. If the Constitutional Council of the Republic of Kazakhstan takes a firm stand as an institution serving for social integration to resolve the problems and conflicts that arise with the development of Kazakhstan society, I believe that the trust of the people in the Council, as a body that upholds the Constitution of the Republic of Kazakhstan and steers the development of society and history, will also grow in the process. This requires the efforts of the members of the Constitutional Council to ensure that the Council is independent from any political and economic interests. A measure to consider would be to include the system of constitutional complaint, as before when the Constitutional Court was in place, through which individuals can directly seek relief when their fundamental rights are violated. In-depth studies and applications of universally accepted international views on the constitutions and human rights laws would be necessary for the Council to adopt more highly elaborated and persuasive reasoning drawn from constitutional and legal theories. It is my expectation that the Constitution of the Republic of Kazakhstan, which takes the fundamental rights and freedom of individuals to be the highest value, breathes together with the people as the corner- stone for government operation and norms for living, and that the Constitutional Council of the Republic of Kazakhstan continues to grow into the finest constitutional institution that affirms and realizes the ideas contained in the Constitution. I hope to see that the close relationship between the Constitutional Court of the Republic of Korea and the Constitutional Council of the Republic of Kazakhstan is strengthened and that the Constitutional Council of the Republic of Kazakhstan will take the lead to facilitate collaborations among the institutions of constitutional adjudication with a vision to guarantee universal human rights. Again, I congratulate you on the 20th anniversary of the Constitution and the Constitutional Council of the Republic of Kazakhstan.

114 Taher HIKMAT – President of the Constitutional Court of the Hashemite Kingdom of Jordan

The Constitution of Kazakhstan: An Overview and Safeguards of Human Rights

n December 1991, Kazakhstan declared its independence from the Soviet Union, to be followed shortly by the adoption of the first Constitution in 1993, which was approved by the Supreme body of Kazakh- Istan on January 28, 1993. However, that Constitution was replaced by a new Constitution in 1995, which was approved during the nationally held referendum on August 30, 1995. The current Constitution was later amended to foster the democratization of Kazakhstan. Kazakhstan was first established as a semi-presidential republic with a unicameral legislature initially modelled on the 1958 Constitution of the French Republic. This was found later to be an unsatisfying compromise, because among other things, it spurred ethnic tensions. Therefore, the ethnocentric approach was replaced with a political-territorial concept of the nation. Kazakhstan is constitutionally described as a democratic, secular, legal and social state whose highest values are an individual, his life, rights and freedoms. It is a unitary state with a presidential form of government, where the principle of the separation of powers among the three branches of government exists. The legislature was restructured in the amendments to the Constitution, and a bicameral Parliament was established as a result. The Assembly of Peoples of Kazakhstan was created in 1995 as a means for implementing the state’s nationality policy; however, in October 1998 constitutional amendments have been made which entailed further accretion of the President’s power (increase in duration of terms of staying in office from 5 to 7 years, the appointment of heads of local executive boards is exercised by the President); more involving political parties (increase in Majilis of Parliament from 67 to 77 benches, on these 10 benches the elections were carried out by the party lists). However, constitutional changes made in May 2007 were more essential: the term of presidential powers decreased from 7 to 5 years; the government apportionment of liability before Parliament increased; the amount of members in both Chambers of Parliament essentially increased (Majilis – from 77 to 107, herewith 98 deputies were elected by the party lists, 9 were elected by Assembly of the People of Kazakhstan; the Sen- ate – from 39 to 47 deputies).

115 The President of the State The Constitution provides that the President of the Republic of Kazakhstan shall be the head of the state, its highest official determining the main directions of the domestic and foreign policy of the state. He is elected by universal, equal and direct suffrage under a secret ballot for a five year term. All citizens of the age of forty and above are eligible to run for the office of the president, provided that they have lived in the country for the last fifteen years. The President, as the head of state is, firstly, the symbol and guarantor of the unity of the people and government and, secondly, ensures the coordinated functioning of all branches of the government, as well as the responsibility of its organs before the people of Kazakhstan. In accordance with this standard, all the remaining elements of the system of government forming a harmonious mechanism of checks and balances are lineup. The powers of the President are clearly identified in the Constitution, which include, but not limited to, naming the government (subject to parliamentary confirmation), setting the date of parliamentary elections, issuing decrees which bear the force of law, declaring states of emergency which put the Constitution into abeyance, signing international treaties, acting as the commander-in-chief of the armed forces of the Repub- lic, and awarding state decorations of the Republic and confer-honorary. The President can also dissolve Parliament or the Majilis of the Parliament, after consulting the Chair- person of the Chambers of Parliament and the Prime Minister. However, such presidential power of dissolving Parliament is not absolute; Parliament may not be dissolved in the period of a state of emergency or martial law, and during the last six months of the President’s term, as well as within a year after a previous dissolution. The President can be removed from office on the ground of continuous incapacity to perform his duties due to illness, and in case of high treason, either of which must be seconded by a three-fourths majority of the Joint Commission of both Houses of Parliament. However, this responsibility of the President can be interrupted and suspended; the issue of discharging the President may not be initiated in the period when he is considering premature termination of the powers of the Parliament or the Majilis of the Parliament.

The Executive Branch: Government and Administration It is provided in the Constitution that the Government shall implement the executive power of the Re- public of Kazakhstan, and that it shall be a collegial body which in its entire activity shall be held responsible before the President. Members of the Government are also accountable to the Chambers of Parliament, and legislatures have the right to hear reports of ministers on the issues of their activities at the initiative of no less than one-third from the total number of the deputies of the Chambers. This could be followed by a recommendation to the President to release the member in question by a majority of votes for not observing the laws of the state. According to the Constitution, the government shall, among other things, work to develop the main direction of policies (in the fields of social, economic, foreign and defence policy), present a state budget to Parliament and a report about its performance, introduce draft laws to Parliament and ensure enforcement of laws, organize the management of state property and manage the activity of ministries, state committees and other central and local executive bodies. The Government shall also annul or suspend completely or partially the effect of acts of ministers, and appoint to and release from office heads of central executive bodies not encompassed by the Government. The Constitution preserves the principle of collective ministerial responsibility which should see all members of the Government supporting decisions and actions taken by the Government in public and before Parliament. However, any member of the Government who does not agree with the policy, pursued by the Government, or who does not pursue it is supposed to resign in order to maintain the unity of Government.

116 Parliament The Kazakh Parliament consists of two Chambers, acting on a permanent basis: The Senate (The Upper House) and the Majilis (The Lower House). The Senate is composed of deputies represented in an order of two persons for each oblast, major city and the capital of the Republic of Kazakhstan. Fifteen members of the Sen- ate are appointed by the President, taking into account the necessity of maintenance of representation for the Senate of national-cultural and other significant interests of a society. The 2007 constitutional reforms were announced as efforts to strengthen the Parliament and further the democratization of Kazakhstan. They changed the electoral system from a mixed-member majoritarian system to a proportional closed-list system based on one nationwide constituency. Under the new rules, the Majilis was increased to 107 seats, with 98 deputies elected on a proportional basis by a universal, equal and direct election under secret ballot, with parties submitting a list of candidates to fill all 98 seats. The remaining nine deputies were to be elected by the Assembly of Peoples of Kazakhstan. Deputies of Parliament are expected to attend parliamentary sessions in person and to take part in its work. The absence of a Deputy at sitting of the chambers and their bodies without a good reason for more than three times, as well as transferring the right to vote shall cause imposition of penalties established by law. This provision ensures that elected Deputies appear to Parliament regularly, unless there is a good and valid reason which justifies their absence. The powers of Parliament, as laid out in the Constitution, include the right to initiate and approve legislation (including constitutional amendments), discuss and approve the state budget, and approve appointments. Draft laws are instigated by the government and submitted to the legislature for discussion. All parliamentary decisions about the budget need prior approval of the government. However, the Senate is involved to a larger extent in important personnel decisions, such as the approval of the Prosecutor Gen- eral, the chairperson of the National Security Committee and the Chairperson of the National Bank. The lower house elects and dismisses members of the Central Election Commission proposed by the President, as well as three members of the Accounts Committee, each for a five-year term. With the 2007 constitutional reforms, some additional powers were allocated to Parliament which includes granting the Senate new powers to carry out the Majilis’s lawmaking function if the latter is dissolved before the appointed time. Also, for the first time, the government would not only be accountable to the President, but would also have to answer to Parliament. The Majilis now only requires a simple majority to express a vote of no-confidence in the government rather than the two-thirds majority that used to be necessary.

The Constitutional Council In the early years of independence, a Constitutional Court was established showing increasing signs of independence by annulling a number of executive-branch and presidential decrees on grounds that they violated the constitution. However, in 1995, the Constitutional Court was replaced by a Constitutional Council, which consists of 7 (instead of 17) members, of whom three are appointed by the President (The Chairperson, and two other members). Two members shall be appointed accordingly by the Senate and the Majilis. Half of the members shall be renewed every three years. The powers of the Constitutional Council are wide enough to ensure the legitimacy of all actions and conducts relating to the public policy of the state. They include deciding on the correctness of conducting the elections of the President of the Republic, deputies of Parliament and all-nation referendum, considering the law adopted by Parliament with respect to their compliance with the Constitution, considering the decisions adopted by Parliament to their compliance with the Constitution, and considering the international treaties of the Republic with respect to their compliance with the Constitution.

117 Rights and Duties of Citizens Section II of the Constitution provides for a variety of rights and freedoms that individuals of the state enjoy. Named as “The individuals and Citizens”, the section spells out political and ideological principles of democracy, equal rights, construction of the national identity, and rediscovery of ethnic and religious identi- ties. The Constitution adopts the principle that the people shall be the only source of state power, and for this reason, they shall exercise power directly through an all-nation referendum and free election. The Constitution also recognizes ideological and political diversity, it preserves the right to assemble, hold meetings, rallies and demonstrations. It also guarantees the right to all citizens to participate in the government of the state’s affairs directly and through representatives, and to equally serve in public offices. As far as the personal and individual rights of citizens, the Constitution grants human rights and freedoms to everyone by virtue of both, absolute and inalienable, provided that the exercise of such rights must not violate rights and freedoms of other persons, infringe on the constitutional system and public morals. The Principle of equality before the law and court is also asserted in the Constitution, which entails that no one shall be subject to any discrimination for reasons of origin, social, property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances. The right to life is also constitutionally preserved; no one shall have the right to arbitrarily deprive life of a person, and a person’s dignity shall be inviolable so that no one must be subject to torture, violence or other treatment and punishment that is cruel or humiliating to human dignity. The Constitution guarantees citizens the right to inviolability of private life, personal or family secrets, and protection of honour. It also provides for the freedom of speech and creative activities that shall not be censored, freedom of conscience, and the rights to form associations. Also, the Constitution extends the personal rights to the right of freedom of labor, and the free choice of occupation and profession. In this regard, the rules are comprehensive to include restricting involuntary labor only on a sentence of court or in the conditions of a state of emergency or martial law. They also assert the right to safe and hygienic working conditions, just remuneration without discrimination as well as social protection against unemployment. Furthermore, the Constitution allows citizens to determine and indicate or not indicate their national, party and religious affiliation, and to use their native language and culture in communication, education, instruction and creative activities. The Constitution also remains dedicated to maintaining private ownership, protecting marriage and family matters, and the protection of health. It guarantees to citizens free and obligatory secondary education in state educational establishments, with an obligation on the state to set uniform compulsory standard in education. As a safeguard to the exertion of the above constitutional rights and freedoms, the Constitution applies the principle of separation between powers: the legislative, executive and judiciary, together with a system of checks and balances that govern their interaction. Another safeguard to the same effect is considering the Constitution as the highest judicial force having a direct effect on the entire territory of the Republic. Also, all laws, international treaties of which the Repub- lic is a party shall be published, and the publication of acts dealing with rights, freedoms and responsibilities of citizens shall be a necessary condition for their application. Finally, the Constitution includes rules for the regulation of human rights and freedoms, so that rights of an individual or citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population. Any restrictions in legislation which do not adhere to the above said rules shall be deemed unconstitutional.

118 Gerhart Holzinger – President of the Constitutional Court of the Republic of Austria

The Importance of Constitutional Justice for the Establishment of a Democratic State under the Rule of Law

I. he modern, democratic constitutional state is based on the fundamental notion of the supremacy of the constitution. T The constitution is the set of legal principles governing the central issues of people living together withinthe framework of a state. Typical issues of constitutional law include, in particular, the establishment, organization and objectives of the state, the principles underlying the exercise of the functions of the state (legislation, government/administration, judiciary), the relationship between the state and society, as well as the position of the individual vis-à-vis the state. The supremacy of the constitution means that any action taken by the state must be based on or, in other words, bein accordance with the constitution. This requirement of constitutionality applies to all state functions – legislation as well as government and/or administration and the judiciary. However, the supremacy of the constitution must be more than a purely theoretical notion. It has to be effectively implemented in practice. To this end, the democratic constitutional state needs institutions that guarantee compliance with the constitution. In a democratic state under the rule of law, the most important among such institutions is the constitutional court as the “guardian of the constitution”. By guaranteeing the constitutionality of any state action and, above all, protecting the fundamental rights of the individual, constitutional justice plays an extremely important role, as it serves not only to uphold the rule of law, but also to strengthen democracy and, thus, the political stability of the state. Given the highly political role played by constitutional courts in the exercise of their specific functions,they hold a position at the borderline between law and politics. First and foremost, a constitutional court is a

119 genuine court as defined by constitutional law, i.e. an autonomous institution of the state, independent of the legislator, the government and/or the public administration. Its decisions are exclusively based on legal norms, above all on the constitution as the supreme legal norm of the state. At the same time, however, it should not be overlooked that decisions taken by a constitutional court may have significant political implications. The latter holds, in particular, for the constitutionality review of laws adopted by the democratically legitimized body representing the people, a power exercised by all constitutional courts based on Hans Kelsen’s notion of constitutional justice. In this respect, a certain degree of tension exists between the constitutional court, on the one hand, and parliament and the government, or the political parties holding the majority in parliament, on the other hand. When reviewing laws for their constitutionality, the constitutional court has to respect the political scope of action of the law-maker. Hence, it is not up to the constitutional court to pass judgment on the political expediency or usefulness of a legal provision. A law that lacks in expediency is not eo ipso unconstitutional. At the same time, however, the constitutional court has to guarantee compliance with the constitution. Hence, if a legal provision is in conflict with the constitution, the constitutional court must repeal it as unconstitutional, even if repealing the law may not appear to be politically expedient. Difficult issues of value frequently arise in the assessment of the constitutionality of legal provisions, especially in the context of fundamental rights. A constitutional court must provide answers to such questions. Constitutions typically contain a large number of general terms from which specific instructions addressed to the legislator can rarely be derived. Nevertheless, it would be wrong to assume that these parts of the constitution have no binding effect for the legislator on account of their indeterminate nature. The scope allowed to the legislator by such provisions is very wide, but its limits can be specified. It is up to the constitutional court to establish the degree of freedom allowed by the constitution and to decide if the legislator has surpassed the “scope of legal-policy action” set out in the constitution.Within the framework of its powers to reviewcompliance with the normative contents of the constitution, the constitutional court is called upon to substitute its own decision for the decision taken by the legislator. This does not apply to areas within the legislator’s scope of legal-policy action, which are not subject to review by a constitutional court. It would be fallacy to think that this review function of the constitutional court runs counter to the democratic principle. On the contrary, the review of legal norms by the constitutional court serves toimplement thevery principle of democracy, as the provisions of constitutional law, which are binding upon the legislator and determine its actions, are based on a much broader democratic consensus. Thus, the fact that the legislator is bound by the constitution means that the democratically legitimized legislator is bound by an act of supreme democratic legitimization. Consequently, a constitutional court reviewing the legislator’s compliance with the constitution exercises a democratic function. A further point to be considered is that, as a rule, constitutions cannot easily be amended. Whatever is “enshrined” in the constitution, is guaranteed to remain valid in the long run. This holds, in particular, for the fundamental rights and freedoms. Politically speaking, this guarantee of long-term validity also provides protection for a qualified minority from domination by what is nothing more than an absolute majority. This protective function of the constitution would be ineffective, if the constitutional court – out of consideration for the democratically legitimized legislator – were to exclude “political” issues from the scope of its review. For democratic reasons, therefore, the constitutional court must not refuse to assume this task: Democracy would be inconceivable without a pluralism of political forces and without competition among political ideas.

120 II. In the former Communist states, the idea of constitutional justice was rejected on the basis of theoretical considerations not unknown in the Western world. Similar to the British doctrine of parliamentary supremacy or the French notion of souveraineténationale, Marxist-Leninist constitutional theory was based on the principle of unity of powers. The underlying argument used to justify this position was that any review of actions taken by an elected assembly representing the sovereignty of the working class by an institution based on a lesser degree of democratic legitimization was inadmissible. In reality, however, this argument merely served to legitimize the real power structures in a totalitarian single-party dictatorship. The very notion of total, i.e. unlimited, exercise of power excludes any form of political or judicialreview and, consequently, the rule of law as such. It was only after the socialist dogmas of the unity of state power and the unrestricted power of the body representing the people had beengiven up, that the idea of constitutional justice was able to take effect in these states. It was incumbent upon the constitutional courts established after the fall of the Iron Curtain and after the collapse of the Soviet Union to perform the extremely important function of interpreting the new constitutions. The most difficult challenge for constitutional courts during that time of transition from a dictatorship or an authoritarian regime to a democratic state under the rule of law was to address the “change of system” in terms of constitutional law. From the viewpoint of substantive law, the most important problemsto be resolved concerned the issue of “facing the past” in terms of criminal law, property restitution and compensation, as well as the interpretation of constitutionally guaranteed fundamental rights and the possibilities of their restriction. Another issue of crucial importance for constitutional courts was to define their own position within the structure of constitutional bodies – including the central question of which institution has the last say in constitutional matters. As the political developments of recent decades in the majority of formerly Communist states have shown, their constitutional courts have succeeded in winning a fairly strong position. In the wake of international developments in recent decades, the exchange of experience and ideas, as well as cooperation between national constitutional courts, has been continuously gaining in importance at both regional and global level. Numerous regional and international associations of national constitutional courts have been established in recent years. These associations serve the purpose of promoting the exchange of information between member courts and of facilitating the exchange of opinions on issues of constitutional law and constitutional justice. At the same time, these associations fulfill the equally important role of advocating the preservation and strengthening of the independence of constitutional courts as essential guarantors of democracy and the rule of law. In this context, it is essential to recall that the correct and effective performance of the tasks conferred upon the constitutional courts will, again and again, result in tension in the court’s relationship with other state bodies, be it the government or parliament. Therefore, these organizations serve the important purpose of strengthening solidarity between constitutional courts in situations in which the independence of one of their members is endangered or threatened through action taken at the political level.

III. The function of a constitutional court as the most important “guardian of the constitution” implies a high measure of responsibility, which each and every member of a constitutional court must be aware of at all times. This responsibility demands a special professional ethos: an attitude on the part of constitutional judges based on the highest level of judicial qualification, a passionate concern for the respect of the constitution,

121 the absolute disregard of party politics and societal or personal interests, and an uncompromising willingness to take impartial decisions. This is the attitude that enables a constitutional court to perform its tasks for the benefit of the state and society – no matter how far-reaching or difficult these tasks may be. At the same time, this is the attitude it takes for a constitutional court to succeed in winning the moral support of the people as an essential prerequisite for the effectiveness of its actions. A general public that trusts the constitutional court to perform its tasks correctly, free of and immune to any external influence, is the most valuable capital of any constitutional court, if it is to carry out its mission even in times of political or social turmoil.

IV. On 30 August 2015, the Republic of Kazakhstan will celebrate the 20th anniversary of the adoption of its new constitution. By virtue of this constitution, the Constitutional Council of the Republic of Kazakhstan was established, a body that exercises the typical functions of a constitutional court.

The Constitutional Court of the Republic of Austria explicitly welcomes the Republic of Kazakhstan’s commitment to the idea of constitutional justice as a mechanism to develop and secure a democratic state under the rule of law. In the same vein, the Constitutional Court of the Republic of Austria notes with satisfaction that the Constitutional Council of the Republic of Kazakhstan, through its membership in the Venice Commission of the Council of Europe and the Association of Asian Constitutional Courts and Equivalent Bodies (AACC), has firmly positioned itself in the network of international cooperation of constitutional courts.

122 Yury CHAIKA – General Prosecutor of the Russian Federation, Acting State Advisor of Justice, Honored Lawyer of the Russian Federation

n August 30, 1995, following the results of the free expression of the will of the Kazakhstan people, the Constitution of the Republic of Kazakhstan was adopted at the republican referendum. Today, it’s hard to Ooverestimate the value of this fundamental legislative act, which has been determining juridical bonds of the modern nationhood of Kazakhstan, its highest values, institutional structure and obligations of the powers for 20 years. In the article 1, the Constitution of the Republic of Kazakhstan proclaims the man, his life, rights and freedoms to be the highest values. Adherence to global humanistic ideals is consistently supported by Kazakh- stan through real actions, by constant development and improvement as a democratic, secular, law-governed and socially oriented state. Compliance with the interests in the historical chronicle of Kazakhstan is filled with a range of great deeds, outstanding achievements, and memorable dates. And today, these interests, as previously, continue determining the meaning, content and application of republican laws, activities of the national state authorities, secured by the justice. On one side, the Republic of Kazakhstan strives to realize greatest possible guarantees of protection of constitutional rights and freedoms of man and citizen, on the other side – to provide absolute and full exercise of constitutional obligations by all state authorities, officials, citizens and organizations. The Constitution of the Republic of Kazakhstan establishes aspects which in the system of legal coordinates determine the modern image of the country and everything that forms today the essence and content of such an important public institute guarding the supremacy of law, unity and strengthening of legal order, rights and freedoms of man and citizen, interests of the society and state, as the Prosecutor’s office of the Republic of Kazakhstan. Over the years of building of sovereign nationhood of Kazakhstan, the Prosecutor’s office has become the leading state authority designed to exercise supreme supervision over legal order on behalf of the state. The main content of its multifunctional activities is formed by the mission to protect human rights and provision of the law supremacy. Each of general prosecutors of the Republic of Kazakhstan, who headed the prosecutor system in different years after following independence of Kazakhstan, contributed to development of the supervision agency: Zh.A. Tuyakbay (1990-1995), M.S. Narikbayev whose knowledge and wide experience in 1995-1996 helped forming the fundamental base of the prosecutor system designed to function under new conditions, S.I. Shutkin (1996-1997), Yu.A. Hitrin (1997-2000), R.T. Tusupbekov (2000 –2009), K.A. Mami (2009-2011), and A.K. Daulbayev since April 15, 2011. Currently, the status of Kazakhstan’s Prosecutor’s office is fixed on the constitutional and legal level, frameworks are determined for the legal reality where the Prosecutor’s office is assigned to exercise its activi-

123 ties. Leading role in this context belongs to regulations establishing the base of the constitutional system, rights and freedoms of man and citizen, and system of state authorities. It is also important that constitutional and legal level determines that the Prosecutor’s office of the republic being a single centralized system exercises its powers independently from other state authorities, officials, and reports only to the President of the Republic. Therefore, fundamental guiding regulations are determined for the prosecutor’s office, explaining the scale of requirements and expectations to it: the principle of unity, centralization and independence of the Prosecutor’s office. Unity, independence, centralized and hierarchical structure of the Prosecutor’s office bodies are introduced to the constitutional use by no means formally. This key backbone category generates construction allowing prosecutors of all levels to provide achievement of purposes and tasks set in front of the office, to solve arising problems of strengthening of legal order and protection of citizens’ rights, interests of the society and state. .Prosecution agencies interacting with legislative, executive and judicial powers function to the benefit of the whole state, and as a mechanism of supervision over realization of powers of other state authorities exercise supreme supervision over exact and uniform application of laws and other regulatory acts within the territory of the republic. These regulatory provisions determine the main task of the prosecutor – to detect all violations of the law, to strive for their elimination, to protect the innocent, to raise a question on the violators’ responsibility [1, p.12]. In accordance with article 83 of the Constitution of the Republic of Kazakhstan, the Prosecutor’s office on behalf of the state exercises supreme supervision over exact and uniform application of laws, decrees of the President of the Republic of Kazakhstan, and other regulatory acts within the territory of the republic, over legitimacy of investigative activities, interrogation and examination, administrative and executive procedures, takes measures for detection and elimination of any violations of the law, as well as challenges laws and other regulatory acts contradicting to the Constitution and the laws of the republic. The Prosecutor’s office represents interests of the state in court, as well as exercises criminal prosecution in cases, according to the procedure and within the limits established by the law. Therefore, Kazakhstan chose an independent way of legal formation of prosecution agencies of a new type [2, p. 57, 61]. In the legislation and scientific doctrine of Kazakhstan, prosecution supervision is called supreme because in exercise of their functional powers prosecutors act on behalf of the state and within the whole territory perform supervision over enforcement subjects, using a unique set of legal means for elimination of violations. Although Kazakhstan has a smoothly running system of other specialized state authorities and organizations, powers of which include supervision and control, only prosecution supervision refers to the notion “supreme”, because it is the most universal and efficient within the territory of the whole state. In addition, in the hierarchy of law-enforcement and controlling agencies of Kazakhstan, the Prosecutor’s office exercises supervision not only over compliance with the Constitution of the Republic of Kazakhstan and application of the laws, but also over compliance of regulatory acts produced by the supervision objects listed in the law [3, p.11]. Experience of organization of work in specialized Prosecutor’s offices in the Republic of Kazakhstan is very interesting, especially in the Main Transport Prosecutor’s office [4] which is the most important branch in the whole system of prosecution agencies. This Prosecutor’s office keeps 24 district transport prosecutor’s offices in hand, and its specificity is that in exercises supervision over all kinds of transport: not only railway, marine, inland waterway transport, air, but motor, city electric transport, including underground, as well as major pipeline transport. A new landmark in the prosecution supervision is establishment of the Coordination Council of the Re- public of Kazakhstan for securing of legitimacy, legal order and crime prevention, the purpose of which is to unite efforts of law-enforcement bodies engaged in investigative activities, interrogation and examination, which is of high priority in the Russian Federation as well.

124 Forward-looking measures have been taken in the Republic of Kazakhstan since the second half of the 1990s in order to determine the balance of interests of business and state, as well as modern architecture of their mutually beneficial and motivating cooperation. Along with that, it’s hard to overestimate the role of Kazakh prosecutors in consistent approval in the law enforcement practice, public conscience expressed in the laws of new standards and in condition of crime prevention. In general, there is a lot of in common between Prosecutor’s offices of Kazakhstan and Russia. Problems of provision of legal order are also similar and they require attention of the Prosecutor’s office. As is known, great influence on national labor markets of the countries of the Commonwealth of Indepen- dent States (hereinafter – CIS) is brought by migration processes which have been marked by high dynamics and sustainable growth in recent years. Common history, historically formed cultural and often family bonds, commonness of traditions, absence of linguistic barriers in communication create prerequisites for active migration of population between the CIS countries, and recurrent level of economical development determines processes of man power migration. Spontaneity in moving of labor migrants results in disproportion in social and economical development of accepting countries within the CIS territory, first of all – Russia and Kazakhstan, leads to unbalance in development of regional labor markets, causes increase of criminal sources and hazards to national security, facilitates strengthening of anti-immigrant attitude among the population. In this connection, prosecution agencies of the Russian Federation and of the Republic of Kazakhstan with their powers and methods are striving to provide entirety of exercise by their national agencies of representative and executive power (regional and local), jurists and officials of legislative requirements aimed at protection of rights and freedoms of man and citizen, interests of the society and state in the sphere of migration relations. Joint activities of Russian and Kazakh prosecutors create ongoing juridical mechanism which responds to detected violations in the field of migration [5, p. 3,4]. Special topicality was given to these issues under conditions of participation of the Russian Federation, Republic of Kazakhstan and Republic of Belarus in formation of the Customs Union [6] – new integration breakthrough, which has dramatically changed not only economic and general geopolitical configuration of the whole Eurasian area, but formation of unified law-enforcement practice, exact and timely interaction of appropriate state authorities which required proper legal framework (including through harmonization of legislation of the mentioned countries). Since the establishment of the mentioned interstate union, the start of realization of policy for creation of a single economic space and single customs territory, transition of transport control to external contour of boundaries of the Customs Union, the Prosecutor’s office of Kazakhstan (as other prosecutor’s offices of participating countries) has been the most important guarantor of law enforcement not only within the territory of its Republic, but within the territory of the whole Customs Union, facilitating full realization of the uniform customs legislation, first of all the Customs Code of the Customs Union. In the course of integration processes, on May 29, 2014, in Astana, a Treaty of establishment of the Eur- asian Economic Union was signed (came into effect on January 1, 2015), which in an international organization of regional economical integration having international legal standing, within the framework of which movement of goods, services, capital and labor force is provided, as well as coordinated, approved or uniform policy in economical fields. Establishment of new interstate agencies is expected. Realization of this treaty will require the prosecutor’s offices of our countries to introduce further corrections into their work considering their important role in provision of exact correspondence of the integration practice to requirements and purposes of laws expressing national interests. A firm base for this has already been founded through work of prosecution agencies within the framework of the Customs Union. Under conditions of uniform customs legislation and harmonization of legislation regulating the sphere of economic relations as a whole, it’s hard to overestimate the necessity to analyze the condition of legal or-

125 der within the territory of functioning of the Customs Union, development of measures aimed at its provision, especially in the part connected directly with the prosecutor’s office work. In this context, assistance will be productive provided by creative teams of research prosecution institutions of Kazakhstan and Russia, which strengthen cooperation and interact with practice, suggest prospective and often unique research developments. Therefore, in the threshold of the 20th anniversary of the Constitution of the Republic of Kazakhstan, it can be said that consistent development continues, predetermining further introduction in the Republic of Kazakhstan of modern and balanced mechanisms of protection of constitutional provisions, exercise of high level of legal order, assistance by means of prosecution supervision in reforms aimed at increase of stability and social and economical guarantees in the country, and strengthening of its nationhood.

REFERENCES: 1. Zhursimbayev S.K. Prosecution supervision in Kazakhstan. Almaty, 2003. 2. .Bakhtybayev I.Zh. Prosecutor’s office in the legal system of the Republic of Kazakhstan // Human rights purpose of the prosecution agencies in modern time. Almaty: “Edelweiss”, 2005 3. Shcherba S.P., Reshetnikova T.A., Frolova M.A. Powers of prosecution agencies of the CIS countries: monograph. M, 2013 4. Established in accordance with the Decree of the President of the Republic of Kazakhstan as of August 17, 2010, No.1039 “On measures for increasing efficiency of law enforcement activities and court system in the Republic of Kazakhstan”. 5. Prosecution supervision in the sphere of labor migration in the Russian Federation and Republic of Ka- zakhstan: textbook. – M., 2012. 6. .Treaty of establishment of the uniform customs territory and formation of the Customs Union was signed on October 6, 2007, in Dushanbe between Belarus, Kazakhstan and Russia.

126 III. REPRESENTATIVES OF ACADEMIC COMMUNITY

Suren AVAKIAN – Head of the Department of Constitutional and Municipal Law of the faculty of law of the Moscow State University named after M.V. Lomonosov, Honored worker of science of the Russian Federation, Doctor of Law, professor

ROLE OF THE CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN IN THE FORMATION AND DEVELOPMENT OF MODERN CONSTITUTIONALISM

he jubilee of any constitution implies assessment of at least two factors: firstly, how it reflected general civilizational regularities of social and political development; secondly, what contribution this Tconstitution makes into formation of ideas and practice of constitutionalism in general as a global value. It can be noted with satisfaction that the Constitution of the Republic of Kazakhstan gives reason for positive conclusions regarding both mentioned positions. The Constitution guarantees main parameters of the constitutional system of Kazakhstan: it represents itself as a democratic, secular, law-governed and social state, the highest values of which are man, his life, rights and freedoms (part 1 article 1 of the Constitution). Ideological and political variety is recognized in the Republic (part 1, article 5). Public and private property is recognized and equally protected in Kazakhstan (part 1, article 6). Important principles of a person’s constitutional status are established in section II. The Constitution reflects detailed rules for organization and activities of the republican state authorities. Consti- tutional regulation is ably exercised, it creates strong foundation of political, social and state development of the Republic of Kazakhstan. Attention is also attracted by many provisions of the republican Constitution which represent a very interesting contribution to general formation of modern constitutionalism. Due to briefness of the material, we will focus on a range of aspects.

127 1. Part 2 of article 1 of the Constitution is of keen interest: “The fundamental principles of the Re- public’s activities include: public consent and political stability, economic development to the benefit of the whole nation, Kazakh patriotism, solution of the most important problems of the state life by democratic methods, including voting at the republican referendum or in the Parliament”. Reflected in the Fundamental law theses regarding public consent and political stability are the key ones, as we suppose, considering them, provisions about ideological and political variety should be interpreted. Therefore, the Republic, by allowing different views and their organizational execution, does not suppose abusive practice leading to infringement of interests of Kazakhstan’s people; hence there is one more important postulate reflected – about Kazakhstan patriotism, which, as one must suppose, refers to prominence of interests of the Motherland over political and other choices. 2. An apparent positive moment of the Kazakhstani constitutional model is the use of the “law in force” category. According to part 1 of article 4 of the Constitution, “The law in force in the Republic of Kazakhstan is provisions of the Constitution, corresponding to it laws, other regulatory acts, international contract and other obligations of the Republic, and well as regulatory resolutions of the Constitutional Council and Su- preme Court of the Republic”. First of all, it is clear that the “law in force” category is univocal: this is about existing acts as a whole, they must be applied; combination of regulations and law-enforcement practice is formed on this base. Secondly, in the Republic a clear answer is given to the question which is a matter of argument in other countries, including Russia – inclusion of acts of supreme judicial instances to the circle of rule making. It is obvious that sometimes they significantly predetermine content of the law; that is why they are reasonably included in the volume of “law in force” of the Republic of Kazakhstan. Thirdly, it is also important that the “law in force” category unites all regulatory materials, therefore con- necting all originators. In relation to the latter circumstance, attention should be paid to felicity of Kazakhstani position in respect to international sources. In addition to the above mentioned, the role of part 3 of article 4 should be emphasized: “International treaties, ratified by the Republic, prevail over its laws and are directly applied, except for cases when such international treaty provides for issue of a law for its application”. There are no popular in many countries, including the Russian Federation, and incomprehensible words about “established principles and norms of the international law”. It is clear that “established” means recognized by the state as well. Hence the words of the Kazakh Constitution are understandable – officially recognized by it international acts become part of the law on force of the state. 3. As is known, Kazakhstan is a multiethnic and multi-confession state. In constitutional and legal context, it is successfully reflected in a number of categories. We would mark the following of them. First of all, this is proclamation of equality of everyone in front of the law and the court (article 14). This provision is traditionally included into constitutional texts. However, we would especially like to mark the article 7, which states: “1. Kazakh language is the official language in the Republic of Kazakhstan. 2..In state organizations and local government authorities, Russian language is used on a par with the Kazakh language. 3.The. state takes care for creation of conditions for learning and development of languages of people of Kazakhstan”. As is known, the problem of language (languages) is often sensitive for some states. Kazakhstan has avoided most of such problems through wisdom of its constitutional language policy. For country in- habited by people of different ethnicities, all the more so as vast majority of citizens of Kazakh ethnicity can speak Russian fluently, thestrategy aimed at bilingualism in fact didn’t leave a chance for any serious conflicts on this base, providing peace in interethnic communication. Kazakhstanis, as well as national leaders and scientists of the republic, understood very fast that knowledge of two and more languages enriches people, their culture and horizon.

128 In spite of a brief formulation of freedom of conscience in the article 22 of the Constitution, the practice of Kazakhstani multi-confessionalism is widely known. It is no coincidence that the Republic often becomes a platform for international interreligious meetings. Furthermore, Islam being the religion of most people in Kazakhstan leaves good impression for its actions and appearance of people, because new clothes didn’t become something basic in expression of religiosity. 4. One of peculiar features of Kazakhstani constitutionalism which, in our opinion, is worthy of emu- lation, is combination of rights and freedoms with origins of obliged behavior in the status of man and citizen. In spite of the fact that the first article of the Constitution proclaims human life, rights and freedoms as the highest values for the Republic, a factor of “responsive” similar obliged behavior from the side of a person is also established in the Fundamental law. We emphasize this – this is not just about obligations of man and citizens; this stands to reason. We pay attention to a range of provisions: -ev. eryone is obliged not only to follow the Constitution and legislation of the Republic, respect rights, freedoms, dignity honor of other people, but also respect the symbols of the state of the Republic (article 34); - according to article 6, public and private property is recognized and equally protected in the Republic of Kazakhstan (such priority of terms appeals to as, because the public property, which is property of all Ka- zakhstan’s citizens, is on the first place); but then in part 2 of article 6 there are remarkable words – “property obliges, use of it must at the same time be used to the public benefit” (i.e. here is a statement present in a number of Western constitutions, and regarding this many scientists express their regret – this is absent in the Constitution of the Russian Federation); -.guaranteeing freedom of consciousness in article 22 is accompanied with statement that its exercise must not condition or limit human and civil rights and obligations in front of the state. 5. The Constitution guarantees: “The Republic of Kazakhstan is a unitary state with presidential government” (part 1, article 2). Here attention is attracted by the fact that there is a clear solution of an issue which is often a matter of argument of scientists and politicians. The author of these lines always is puz- zled by expressions such as “semi-presidential republic”, “parliamentary-presidential republic”. Sometimes conditionality is seen even in the category “parliamentary republic”, especially when the FRG is given as an example, because realists prefer calling this country “chancellor republic” seeing strong reflection of foreign presidents in the present German chancellor. Therefore, halfness of the government is not needed for the state. A strong Prime Minister, and furthermore a strong President in a parliamentary republic is even more useful than several hundreds of parliamen- tarians which got through various political twists and turns into the deputy corps, who are sometimes incom- petent both in governing the state and in law making. Of course, it is no coincidence that presidential government is established by the Constitution, and it is harmonically combined with the personality of the leader. Along with that, it clearly speaks for the fact that under conditions of new nationhood establishment, presidential government with a good head of the state provides more good results. Those post-Soviet states that preferred parliamentary government always get problems of interaction between the parliament and the president leading to intergovernmental and street clashes. Attention should also be paid to the fact that there is a two-chamber parliament in the unitary state of Kazakhstan, and the chambers have a lot of powers exercised by the chambers independently. However, the Constitution (article 59) provides for base for joint sessions of the chambers. Such regulation, which is quite flexible in our opinion, added by current legislator regulationallows the chambers to discuss important state, social and political problems together – whole chambers have separate voting. Of course, the anniversary of the Constitution of Kazakhstan doesn’t take away the task to guarantee exercise its provisions. However, along with that, successful establishment of constitutionalism model and the most important parameters of the constitutional system facilitates following the path to historical progress by the country.

129 Grigoriy VASILEVICH – Chairman of the Constitutional Court of the Republic of Belarus (1997-2008), Honored Lawyer of the Republic of Belarus, Doctor of Law, professor

CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN – THE FOUNDATION FOR TRANSFORMATION OF THE SOCIETY AND STATE

nder present conditions, Constitution is the main juridical document, which unites (integrates) the whole complex of political and legal relations, determines the entity of the state, and its national legal Usystem. Constitutions are adopted by different wielders of power: parliament, people, a body specially established for this purpose, for instance, constitutional assembly, etc. However, the most democratic way of its adoption is a referendum (popular voting). Adoption of the Constitution of the Republic of Kazakhstan on August 30, 1995, is an express of people’s will, their trust to the power which decided to suggest citizens to deliver their verdict regarding the renewed text of the Constitution. The Constitution of any state is a reflection of political and social processes, correlation of forces as of the moment of its adoption. An optimal variant is a situation when the Constitution reflects social compromise and contains mechanisms of conflict settlement. It’s successful that the Constitution of Kazakhstan, in our opinion, combines these requirements. It contains main modern legal ideas: separation of power, supremacy of the law, political pluralism, variety of forms of property, guaranteeing of the whole complex of main rights and freedoms of man and citizen as the highest purpose of the society and state. The Constitution was a threshold moment in development of Kazakhstan state. In addition to other factors, approval of the Consti- tution by the people at the referendum means that the state authorities, officials and citizens assumed an obligation to create a new, improved, Constitution-based state legal system, where existing legislation and practice of its exercise correspond to the constitutional principles and provisions. The Constitution of Kazakhstan serves for progress of the society, people, because it reflects an adequate balance of interests of the state and person with consideration of national, historical and cultural peculiarities of development. They are equal and subjects with equal liability.

130 The Constitution of the Republic of Kazakhstan determined a brand new course of constitutional development of the national state and society. The key idea of the new constitutional course is to build a democratic, secular, law-governed, social state. Provisions contained in the first and other sections of the Constitution are aimed at its implementation. The Constitution itself provides that the Constitution is the law in force in the Republic. Constitu- tional provisions mean that the whole system of existing legislation is formed on its base, competence of the state authorities is determined there. That is why the Constitution is often called a core of the legal system. It is often mentioned in the Constitution, when the laws must be adopted for further development of its provisions. The constitution influences the development of the legal system, determines law-making competence of the state authorities, and defines objects of legal regulation. The Constitution established types of regulatory acts and their hierarchy. It was absolutely correct to guarantee the provisions in the article 5 of the Constitution that ideological and political variety is recognized in the state. Therefore, based on the Constitution, ideology of a constitutional state (democratic, law-governed, social) is the model of development. This has its features and standards. A special type of public relations, different from socialist relations, is peculiar to such state. An optimized paradigm of governing, relations of a person, state and society is peculiar to it. The Constitution of the Republic of Kazakhstan in force reflects political and social-economical changes, provides for a program for improvement of popular rule, guaranteeing of rights and freedoms. This is expressed in guaranteeing the foundations of the constitutional system, perception of a concept of partner relations between the state and the person. However, based on the previously formed traditions, only constitutional ideas of protection of social rights and freedoms are preserved. Along with guaranteeing the presidential government, a balanced (rational) system of power is provided represented by the President, two-chamber Parliament, Government, courts, prosecutor’s office, local government bodies, and their powers are clearly separated. The idea of not only separation but of interaction of authorities is realized. It is valuable, that the Constitution (article 4) guarantees not only supreme juridical force, but its direct application within the whole territory. Therefore, possible disputes are eliminated at once regarding actions in case of disputes between constitutional provisions and provisions of other regulatory acts: Constitutional provisions must be applied directly by courts and other state authorities. Not all Constitutions contain indication of direct application of its provisions; this conclusion may be made sometimes based on analysis of constitutional provisions as a whole. Building national legal system, the Constitution contains a number of important provisions relating to the international law: according to the article 8, the Republic of Kazakhstan respects principles and provisions of the international law; and according to the article 4, international treaties ratified by the Republic have priority over its laws and are directly applied, except for the cases when such international treaty provides for issue of a law for its application. Analysis of provisions of the Constitution of Kazakhstan as a whole allows making a conclusion about a possibility of Kazakhstan entering interstate formations. The closest integration processes are developed as part of the Eurasian Economic Union. In Kazakhstan, the Constitutional Court contributed to determination of legal opportunity of Kazakhstan’s participation in interstate associations. It must be understood that entering an interstate association does not derogate the state’s sovereignty, because it solves this issue on its own. Moreover, it acquires more opportunities for influence upon other states within the framework of their association. The section dedicated to the man and citizen guarantees a wide complex of rights and freedoms – personal, political, economical, social, and cultural. Their content reflected in the constitutional text speaks for the high legal culture of the authors who prepares the projected Constitution. This section perceives main provisions of the Universal Declaration of Human Rights, international pats of 1966 dedicated to the rights of man and citizen. Considering the ongoing in the Republic of Belarus practice of passing of death sentences, it is interesting to compare content of corresponding articles of our Constitution and the Constitution of the Republic of Ka- zakhstan. According to article 15, nobody can commit murder arbitrarily. Death sentence is established by the

131 law as an exceptional measure of punishment for terroristic crimes connected with death of people, as well as for the gravest crimes committed at a time of war, granting the condemned a right to intercede for mercy. Ac- cording to the Belarusian Constitution, death sentence until its cancellation may be admitted in accordance with the law as an exceptional measure of punishment for the gravest crimes and only according to the sentence. Therefore, the Constitution of Kazakhstan initially provides for a limited number of cases when death sentence is possible. The Belarusian Constitution establishes temporary character of this type of punishment, its exceptional character. Moratorium on capital punishment has been introduced in Kazakhstan. In Belarus, in spite of its preservation, there is a clear trend of reduction of the number of death sentences. Development of the criminal legislation of the Republic of Belarus regulating application of death penalty speaks for the fact that it has a trend of reduction of application of such punishment, which predetermines a perspective of corresponding actions of the state in elaboration of negative attitude towards this punishment. Judicial practice speaks for the same trend. First of all, for over decades, death penalty has been applied only for intentional homicide committed under aggravating circumstances. Secondly, there had been tens of the condemned to death penalty through the year 1999 (for examples, in 1995, 1996, 1997, 1998, 1999 there were 37, 29, 46, 47, 13 people condemned to death respectively); starting from 2000, there were single cases (in 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, there were 4, 7, 4, 4, 2, 2, 9, 4, 2, 2, 2, 3 people condemned to death; these number amount thousandths from the total number of the condemned). There were no death sentences in 2013, 3 – in 2013, and 4 in 2014. It also should be noted that the average number of people annually condemned for murder under aggravating circumstances is approximately 360 people. Most of them get not a life sentence as an alternative to death penalty, but imprisonment for different terms, including for a term of up to 25 years (life sentence introduced to the Criminal Code only in the end of 1997; in 1998-2006 it was applied towards 3, 29, 18, 11, 15, 12, 12, 8 and 7 people respectively). Both exceptional punishments amount to a negligible percent in the practice of punishment for the gravest crimes committed under aggravating circumstances. For example, over the past 10 years (2002-2011) 117 people were condemned to death or life sentence, which amounts to 3.2% from the total number of people condemned for crimes towards which the law provides for a possibility of these exceptional punishments. In 2012, there were no death sentences. However, unfortunately, in the first half year of 2013, three people were condemned to this exceptional measure of punishment. Therefore, the juridical practice itself in our republic illustrates striving to the moratorium on capital punishment, being very careful in relation to the use of such exceptional punishment as life sentence. However, Kazakhstan’s experience is quite instructive for us. The Constitution of Kazakhstan closely formulates other articles dedicated to inalienable human rights: right for a personal freedom, dignity, privacy right, freedom of word and artistic expression, freedom of movement, freedom of consciousness. An important achievement of the Constitution is guaranteeing official status to the Kazakh language, and at the same time a right to use Russian language in state authorities and local government bodies. Articles 17, 50 of the Constitution of Belarus guarantee that there are two official languages (Belarusian and Russian), a right for national identity and use of the mother tongue, a right to choose a language of communication. Other rights are guaranteed as well – political, social and economical. A state exists for human being in order to protect his freedom and facilitate his well-being. Of course, rights and freedoms of a separate person must not be hypertrophied; this is more about the balance of interests of a person and a group (society). These relations are regulated by the state which uses such an important tool as the law. In general, grounds and conditions of admissibility of limitation of human rights and order provided in the article 39 of the Constitution of Kazakhstan (article 23 of the Belarusian Constitution) correspond to the world practice. They may be limited only by laws and only to the extent which is necessary for protection of the constitutional system, protection of public order, human rights and freedoms, health and ethics of the population. Therefore, the form of the act which can limit the rights (this is about the law) is provided

132 along with the purposes for the sake of which it is admissible to do. Inadmissibility of actions capable of destructing interethnic accord is emphasized: unconstitutionality of such actions is stated on the article 39. Inadmissibility of any form of politically motivated limitation of human rights and freedoms is also stated. This provision in the Constitution is very important; however, its realization to a large extent depends on reasonableness of the law maker’s approach in solution of issues related to political rights, judicial bodies, Constitutional Council in settlement of corresponding disputes. Considering that presidential government is established in the Constitution of Kazakhstan, the system of power is built consistently. There is a strong authority of the President of Kazakhstan to determine basic directions of internal and foreign policy of the state and to represent Kazakhstan inside the country and in international relations. In our opinion, such provision supposes higher level of Presidential acts in the national legal system. An addition guarantee of stability of the state legal system is a Constitutional provision established in the article 91 that established in the Constitution unitarity and territorial integrity, form of the government in the Republic cannot be changed. Such limitations exist in constitutions of other countries, and they are rightful. In our opinion, the approach, in accordance to which the Parliament of Kazakhstan consists of two chambers, is pragmatic. It must be understood that a two-chamber parliament even in unitary states plays an important role of a stabilizer of political relations, it has more means for prevention of possible conflicts between branches of power. That is why the number of conflicts is less, where one of the chambers (usually the upper one) represents interests of territories. Unfortunately, experience shows that in separate multiethnic states, especially with problems related to languages, miss an opportunity to establish two-chamber parliaments under conditions when the conflict hasn’t reached high tension. That is why creation of the two- chamber Parliament in Kazakhstan (as well as in the Republic of Belarus) is reasonable and long-sighted. Attention should be paid to the fact that the Constitution guarantees separate powers of the chambers, as well as powers exercised by the chambers jointly. There is correct solution of an issue of realization of a legislative initiative right, including in case when a projected law provides for reduction of government revenues or increase of public expenditures. An important and even supreme task is provision of coincidence of constitutional reality and constitutional provisions. This expresses the unity of the state and citizen, their joint striving to build a constitutional state, where standards of law-governed, democratic and social state are followed. The movement along this path can be and should be more intensive. But this is not a street with single-direction running, where only the state has obligations, and citizens are passive receivers of benefits. Of course, the state is obliged to exercise efficient, adjusted economical and social policy, establish legal conditions for realization of everyone’s abilities, exercise regulatory acts adopted by it, etc. But other subjects of constitutional legal relations should not passively wait for reception of benefits from the state. An important problem of law enforcement is protection of direct action of the constitutional provisions. Necessary provisions are contained in the Constitution of Kazakhstan for this purpose. First, we should mark the high status and role of the Constitutional Council of Kazakhstan in the checks and balances system, and active implementation of Constitutional provisions interpretation by it. Provisions of the Constitutional Council of Kazakhstan are distinguished by their profound legal argumentation (legal wisdom). Sometimes one can hear an expression that acts of the specialized constitutional control bodies are “wise” because they are final, i.e. they cannot be changed or cancelled, except for by itself. This is a formal approach, which may speak for unwillingness to find strong arguments for one or another decision. Basing on our own experience, we can note that decisions of the specialized constitutional control bodies are final when they are wise. Investigation of succinct acts of the Constitutional Council, which are deep for their content, regarding interpretation of the provisions of the Constitution of Kazakhstan allows making a conclusion that thanks to it the Constitution is living, as is said by specialists of the sphere of constitutional law. This is also evidenced by wideness of scope of the constitutional provisions that have been officially interpreted by the Constitutional Council. After twenty years of the effect of

133 the Kazakhstani Constitution, one can see that principles and norms contained there are striking their roots both in the current legislation of Kazakhstan in force and in the law-enforcement practice. Constitutional principles and provisions form the legal paradigm because they reflect and at the same time form the concept of legislative development of the state and society. Constitutionality of public relations, i.e. those regulated by legal provisions, which are topped by the Constitution, means coincidence of the actual position and the due position (prescribed by the Constitution). Constitutionality assumes constitutionalization of industry-specific legislation and law-enforcement practice, i.e. transition of the constitutional principles and provisions to the practice of industry-specific regulation with adequate reflection of the spirit and letter of the Constitution. A special danger for the state stability is created by the break of society, absence of nation’s unity in solution of basic issues (property, political pluralism, real protection of rights and freedoms independently from political views). Of course, unity of citizens is formed apart from the Constitution as well, but it strengthens it. The Constitutions establishes provisions of not only its own stability, it’s aimed at provision of sustainable development of the Kazakhstani state, which is the most important guarantee of sovereignty. There are different guarantees of sustainable development: political, economic, social, cultural, and juridical. As is appeared to be, the constitutional law of modern states, considering the influence of recognized principles and provisions of the international law, currently has a level of development when political activity (politics) turns out to be more and more within the framework of legal regulation. Modern paradigm of power relations in the civilized society and state is not frozen, of course. There is a space for activity, realization of ideas of politicians, political analysts, constitutionalists, and other specialists in the sphere of jurisprudence. The main breakthrough in this direction was made in the second half of the 20th century. In strengthening of constitutionality, establishment of the state as law-governed, democratic and social, great role must be played by collegiate representative bodies, including territorial public government bodies, deputies, administrative divisions and their management, public associations (with political sphere excluded here; for example, association of entrepreneurs should join the fight against corruption). As was noted, the Constitution of Kazakhstan in fact is a document aimed at provision of a balance of interests of the state, society and individual. A pendulum movement has been peculiar for all CIS countries over the past two decades: from weakness of the state authority to its significant strengthening. To a great extent it is conditioned by the necessity of society consolidation as a way for solution of economic and other problems occurring in countries with young democracy, which recently became independent. The only thing that matters is that actions of the power under these conditions correspond to the value paradigm of the Constitution, from the provisions established in the Constitution preamble to the provisions of precise character. The Constitution preamble is of fundamental significance. It is often said that the Constitution preamble does not contain statutory regulations. One cannot strongly agree with that. The Preamble of the Constitution of Kazakhstan is laconic, but it contains key ideas of the state and society, which are developed in the main part of the Constitution’s text. The article 1 guarantees fundamental principles of the Republic’s activities (public consent, political stability, economic development to the benefit of the whole nation, Kazakhstani democracy, solution of the most important issues of the state life through democratic methods). Such direct guaranteeing of the mentioned principles in the Constitution predetermines content of law making and law enforcement of the state authorities, establishment of their relations with citizens. The Constitution is a sort of a passport containing information on the age and other parameters of the state and society. The Constitution of Kazakhstan embodies many positive, approved by previous experience provisions, guarantees the formed level of social and legal relation, and gives space for further progressive development and prosperity of the nation of Kazakhstan.

134 Yurii GOLIK – Director of the Center on the Study of Organized Crime in the economy and trade of the Russian State Trade and Economic University, Director of the Center on Special Legal Programs of the Independent Institute for Strategic Studies, vice-president of the “Antimafia” Fund, Doctor of Law, professor

CONSTITUTION – BASIS FOR THE CONSTRUCTION OF THE LEGISLATIVE SYSTEM OF THE FIGHT AGAINST CRIME

he modern legislative system represents a vast number of laws and other regulatory acts. Though not always this volume of regulatory materials is a harmonic combination, which complicates inter-branch Tinteraction, inhibits efficient work of law enforcement, misinforms citizens and society as a whole. The sphere of crime prevention is not an exception. In this connection, in order to increase efficiency of crime prevention, a well-knit legislation system should be developed which would be penetrated by a single goal, with formulated subdominant tasks, and where procedures and methods of solution of the set tasks would not contradict one another. The Constitution as a document of supreme legal force must be at the base of this system, this legislative pyramid. Unfortunately, today, there is no statement that the Constitution is the Fundamental Law of the state. Meanwhile, this is not a technical statement, but a principal provision excluding existence within the state of any other regulatory statements (including those contained in the international legal acts) contradicting to the Constitution. I believe that in some time our states – Russia and Kazakhstan – will return this statement to the Constitution. The Constitution of the Republic of Kazakhstan is this foundation to the full. “The Constitution is of supreme legal force and direct application within the whole territory of the Republic” (part 2, article 4 of the Constitution of the Republic of Kazakhstan). The first part of this article contains direct statement that all laws must correspond to the Constitution. This is a very important statement, because it allows avoiding mismatch in development and adoption of laws in the sphere of crime prevention. Since the Constitution is of supreme legal force, then all other laws must not only correspond to it, but they must be based on the Constitutional provisions. This is directly reflected in the Criminal Code of the Republic of Kazakhstan: “This Code is based on the Constitution of the Republic of Kazakhstan and on the

135 recognized principles and provisions of the international law. The Constitution of the Republic of Kazakhstan is of supreme legal force and direct application within the whole territory of the Republic. In case of contradictions between the provisions of this Code and of the Constitution of the Republic of Kazakhstan, the Constitutional provisions prevail. Provisions of this Code recognized as unconstitutional, including those recognized as derogating the rights and freedoms of man and citizen guaranteed by the Constitution of the Republic of Kazakhstan, become legally inoperative and are not to be applied” (part 2, article 2 CC of the RoK). This is a declaration and direct provision. Another thing is important: how it is realized in the text of the Criminal Code. Part 1 of the article 3 of the CC states: “Purposes of his Code include: protection of rights, freedoms and legal interests of organizations, public order and security, environment, constitutional system and territorial integrity of the Republic of Kazakhstan, protected by the law interests of society and state from socially dangerous endeavors, protection of peace and security of the humanity, as well as prevention of crime”. The Constitution of the Republic of Kazakhstan contains Section II “Man and citizen” which gives detailed and all-round information on what must be protected by the criminal law provisions. Regarding the Criminal Code, the Special part starts with the Chapter 1 “Criminal offences against person” (articles 99-131). This emphasizes the significance given by the state to protection of the person. This is also about the crimes contained in the Chapter 2 “Criminal offences against the family and minors” (articles 132-145). It should be considered that part 1 or article 27 of the Constitutions states: “Marriage and family, maternity, paternity and childhood are under protection of the state”. Attention is attracted by the fact that paternity is mentioned. This can be met in other constitutions very seldom. This issue also refers to the crimes contained in the Chapter 3 “Criminal offences against constitutional and other rights and freedoms of man and citizen” (articles 146 – 160), and in a number of others. In the context of the scope, this is perhaps the most developed part in the sphere of criminal and legal protection of constitutional provisions. Article 6 of the Constitution is dedicated to property protection – public and private property. Along with that, it is emphasized that “public and private property is recognized and equally protected”. Regarding the Criminal Code, as befits, these constitutional provisions are specified and described in detail there, in several chapters and dozens of articles. First of all, Chapter 6 of the Special part should be mentioned “Criminal offences against property” (articles 187 – 204), as well as Chapter 8 “Criminal offences in the sphere of economic activity” (articles 214 – 247). In addition to the rights, the Constitution contains statements about responsibilities. In particular, article 38 of the Constitution states: “Citizens of the Republic of Kazakhstan are obliged to protect the environment and take good care with natural resources”. In the Chapter 13 of the Special part “Ecological criminal offences”, the Criminal Code gives detailed information of all violations damaging the environment, for commission of which the state considers necessary to bring the guilty party to criminal responsibility. The criminal procedure legislation, basing on the Constitution, regulates the procedure and forms of protection of rights and legal interests of citizens, both those aggrieved and those who committed crimes. This fully corresponds to the constitutional requirement: “Everyone has a right for qualified legal assistance” (part 3 of article 13 of the Constitution). The Constitution establishes united principles of justice and united judicial system in the Republic. This is described in detail in the Section VII of the Constitution “Courts and justice” and specified in provisions of the Criminal Procedural Code and a number of laws regulating separate issues connected, for example, with enforcement proceedings. The Penal Code as well originates from the idea of protection of citizens’ rights and legal interests. Con- victs have a lot of rights, including a right for justice. “All of people are equal under the law and court,” (part 1 of article 14 of the Constitution). Schematic summary of the announced theme allows only understanding the depth and scope of the constitutional regulation of public relations. Their widening and development is a task of industry-specific legislation. There is a lot of work to be done. Let us wish success on this way to everyone who follows it!

136 Nina GOLIK – Leading researcher of the Research Institute of the Federal Penitentiary Service of Russia, Honored Lawyer of the Russian Federation, Candidate of legal sciences

CONSTITUTIONAL JUSTICE FOR PERSONS SERVING CRIMINAL SENTENCE

he Constitution of the Republic of Kazakhstan adopted at the republican referendum on August 30, 1995, states that the Republic of Kazakhstan is a democratic, secular, law-governed and social state, the high- Test values of which are human, his life, rights and freedoms (article 1 of the Constitution of the Republic of Kazakhstan). Article 2 of the Constitution of the Russian Federation also provides that a human, his rights and freedoms are the highest value. The Constitution of the Republic of Kazakhstan (part 2 of article 13) states that everyone has a right for protection of his rights and freedoms. The Constitution of the Russian Federation guarantees everyone the right for judicial protection of his rights and freedoms (part 1 of article 46). Judicial protection is one of the constitutional guarantees of protection of citizens’ rights and legal interests. Constitutional justice exists both in the Russian Federa- tion and in the Republic of Kazakhstan. In Russia, it is exercised by the Constitutional Court of the Russian Federation, and in Kazakhstan - by the Constitutional Council of the Republic of Kazakhstan. While these two bodies exercise constitutional justice, there are some differences in their competences. We will consider only examination of laws for their correspondence to the Constitution. It should be noted that in part 4 of article 125, the Constitution of the Russian Federation provides for examination of laws for their correspondence to the Constitution, including by claims of citizens. According to the Constitution of the Republic of Kazakh- stan, citizens don’t have such right; and according to article 78, in a law or other regulatory act to be applied derogates rights and freedoms of man and citizen guaranteed by the Constitution, the court must freeze the proceeding on the case and apply to the Constitutional Council with submission of recognition of such act as unconstitutional.

137 In accordance with part 1of article 3of the Federal constitutional law “On The Constitutional Court of the Russian Federation”, protection of main rights and freedoms of citizens is one of the purposes of activities of the Constitutional Court of the Russian Federation in implementation of part 1 of article 46 of the Constitu- tion of Russia about the right of everyone for judicial protection. The main task of the Constitutional Court of the Russian Federation is to protect citizens’ rights from unconstitutional laws. There is a relevant legal instrument – institute of constitutional claim – so that citizens could apply for the help of the Constitutional Court of the Russian Federation for protection of their constitutional rights. A right to apply to the Constitutional Court is actively exercised by citizens of Russia, including those convicted. In the period of 1995-2013, 355 963 applications were received by the Constitutional Court of the Russian Federa- tion, including 69 651 (almost 20% of the total number) regarding violation of rights during interrogation and investigation process, appeal of court judgment and mercy, observance of lawfulness in execution of sentences, and other issues of the criminal law and process [1]. During the mentioned period, the Constitutional Court of the Russian Federation repeatedly considered cases on this theme and exercised the constitutionality check of a great number of provisions of the Criminal Code of the RF, Penal Code of the RF, Criminal Procedural Code of the Russian Soviet Federative Socialist Republic and Criminal Procedural Code of the RF, as well as the number of federal laws regulating legal relations connected with execution of criminal penalties. It’s worth noting that a great role is played by legal propositions of the Constitutional Court of the Rus- sian Federation connected with execution of criminal penalties, where issues related to pardon and procedure of their solution may be emphasized. A.A. Kizimov applied to the Constitutional Court of the Russian Federation with a claim regarding constitutionality check of provisions of the article 77.1 and 77.2 of the Penal Code of the RF, part 1 and 10 of the article 175 of the Penal Code of the RF, and article 363 of the Criminal Procedural Code of the RSFSR, supposing that constitutional rights guaranteed by part 1 of article 21, part 2 of article 45 and part 3 of article 50 of the Constitution of the RF are violated by the disputed provisions, being not vesting the pretrial detention facility administration with an authority to deliver the convict under arrest to release on parole and not allowing the convict in the pretrial detention facility to initiate consideration of this issue by the court. The Constitu- tional Court of the Russian Federation in their Decree as of November 26, 2002, No. 16-П[2] recognized that convicts, including those in the pretrial detention facility, have a right to apply to the court requesting parole independently, without submission to the administration. In this decree, the Constitutional Court of the Rus- sian Federation notes that direct expression of constitutional principles of respect to dignity of an individual, humanism, justice and legitimacy is a right for every convict to request mitigation of punishment (part 3 of article 50 of the Constitution of the RF). The constitutional rights of a convict to request mitigation of punishment .assumes an obligation of the state to regulate a corresponding procedure for consideration of such request. Since establishment of grounds for parole of a convict from punishment and decision making on its execution is a court’s prerogative, the Constitutional Court of the Russian Federation came to the conclusion that a convict must have a right to apply directly to the court with such request. This conclusion corresponds to recommendations contained in the UN Standard Minimal Rules adopted by the resolution of the UN General Assembly 45/110 as of 1990, in respect to measures not connected with prison confinement (Tokyo Rules). According o the paragraph 9 of these Rules, the court is related by bodies making a decision at a violator’s request regarding measures after sentencing, including regarding remission of penalty. The Constitutional Court of the Russian Federation recognized that provisions disputed by an applicant do not exclude the right of a convict, including a convict in the pretrial detention facility due to criminal responsibility on another case, for application to the court with a request to mitigate the punishment through parole, that is why they don’t contradict to the Constitution of the RF. A federal law as of December 8, 2003, No.161-ФЗ, changed the version of part 1of article 175 of the Penal Code of the RF, which provides for the right of a convict, in relation to whom a parole may be applied, as well as his attorney (legal representative), to apply to the court with an application regarding parole, and the number

138 of people, who can apply to the court regarding parole, is widened. Therefore, the Decree of the Constitutional Court of the Russian Federation as of November 26, 2002, No.16-П allowed many convicts to protect their right by appealing in the court an illegal denial of the administration in parole [3, p.29]. Checking provisions of article 175 of the Penal Code of the RF was continued by the Constitutional Court of the Russian Federation in 2005, in consideration of a claim from A.Yu. Eliseev, who disputed constitutionality of paragraphs 2 and 5 of article 399 of the Criminal Procedural Code of the RF, which determine issues connected with exercise of the sentence, allowed for a convict’s application and for submission of an institution or body exercising the sentence, and part 3 of article 175 of the Penal Code of the RF regulating content of submission about replacement of the unserved pert of criminal sentence with a mitigated type of punishment. According to the applicant, a convict’s rights are guaranteed in part 1 of article 46 and part 3 of article 50 of the Constitution of the RF are violated by these provisions, which do not grant a convict with a right to apply to the court requesting replacement of the unserved part of criminal sentence with mitigated type of punishment. It is stated in definition of the Constitutional Court of the Russian Federation as of October 20, 2005, No.388-O [4] that the Decree as of November 26, 2002, No.16-П remains in force; so the provisions disputed by A.Yu. Eliseev cannot be interpreted and applied contrary to the legal proposition expressed that, and provisions of the paragraph 2 and 5 of the part 1 of the article 399 of the Criminal Procedural Code of the RF and part 3 of the article 175 of the Penal Code of the RF in their constitutional and legal interpretation originating from the Decree as of November 26, 2002, No.16-П do not bar a convict from applying to the court requesting replacement of the unserved part of criminal sentence with mitigated type of punishment, and assumes obligation of the court to consider such application in accordance with the procedure established by the law. In spite of the fact that in accordance with the article 6 of the Federal Constitutional Law “On the Consti- tutional Court of the Russian Federation”, the defined constitutional and legal meaning of the mentioned legal provisions is statutory and excludes any other interpretation in the law-enforcement practice, corresponding changes is the mentioned provisions were not introduced by the legislator for a long time; and in judicial literature, there is a point of view that the administration of the pretrial detention facility only may submit a convict to replacement of the unserved part of criminal sentence with a mitigated type of punishment [5, p.30]. And only the Federal law as of February 1, 2012, No. 208-ФЗ, widened the framework of the part 3 of the article 175 of the RF Penal Code, providing for a right of a convict (his attorney, legal representative) to apply to the court requesting replacement of the unserved part of criminal sentence with a mitigated type of punishment. Legal proposition expressed in the Decree of the Constitutional Court of the Russian Federation as of November 26, 2002, No. 16-П, having general meaning, fully applies to legal relations occurring due to solution of issues connected with application of such form of punishment mitigation as change of the type of a penitentiary facility prescribed in the sentence. This predetermines the necessity to grant a convict with a right, given grounds and conditions prescribed by the law, to apply directly to the court requesting to change the type of a penitentiary facility and imposing an obligation to consider this application according to the procedure established by the law. In the Definition as of November 18, 2004, No.363-O [6], the Constitutional Court of the Russian Federation states that provisions of the paragraph 2 and 5 of the article 399 of the Crimi- nal Procedural Code of the Russian Federation, in their constitutional legal interpretation originating from the standing Decree as of November 26, 2002, do not prevent a convict from applying to the court requesting to change the type of a penitentiary facility prescribed by the statement, and assume the obligation of the court to consider such application. In the Definition as of November 4, 2004, No. 342-O [7], the Constitutional Court confirmed that the De- cree as of November 26, 2002 remained in force and applied fully to legal relations occurring due to solution of issues connected with probation revocation and cancellation of a criminal record regarding a probationer who proved his reformation by his behavior, which predetermines the necessity to grant such probationer with

139 a right, given grounds and conditions prescribed by the law, to apply directly to the court requesting probation revocation and cancellation of a criminal record. Provisions of part 1 of the article 74 of the CC RF and part 1 of the article 399 of the Criminal Procedural Code of the Russian Federation disputed by S.A. Sidorov do not prevent a probationer from applying to the court requesting probation revocation and cancellation of a criminal record, and assume the court’s obligation to consider such application, independently from the presence of an order from the body exercising control over behavior of the probationer. Legal proposition established in the Decree of the Constitutional Court as of November 26, 2001, No. 16-П, was taken into account by the legislator when changing the version of the article 177 of the Penal Code of the Russian Federation in the part 1, which states that a convict serving a sentence in a penitentiary facility and who may get a respite in accordance with the part 1 of the article 82 of the CC RF, his attorney, legal representative have a right to apply to the court requesting a respite (Federal law as of February 21, 2010, No.16-ФЗ). Through this law, alterations were introduced to the article 82 of the CC RF and a right for a respite was granted not only to a convicted pregnant woman, a woman with a child under 14, but also to a man who is a single parent of a child under 14, except for convicts sentenced for 5 years and more for grave and the gravest offences against person. In this case, the court can postpone the service of sentence until the child turns 14 years old. Perhaps, the lawmaker proceeded from provisions of the Constitution of the Russian Federation, which guarantees state support of the family, maternity, paternity and childhood, and establishes official benefits and other guarantees of social protection (part 2, article 7); family, maternity and childhood are under protection of the state, childcare and childrearing are equal right and obligation of parents (part 1 and 2, article 38). Children’s right for special care and support is established by the Universal Declaration of Human Rights and, along with the principle of children’s interests and well-being priority in all spheres of the state’s life, is guaranteed by the Convention on the Rights of the Child (approved by the UN General Assembly on November 20, 1989), which established that parents bear main responsibility for rearing of a child, whose interests are a subject of their care, and that member states of the Convention, with the purpose of exercise of child rights guaranteed there, render proper assistance to parents and tutors-in-law, including through the system of social security and insurance, in exercise of obligations on childrearing and in providing adequate material conditions for their development (articles 18, 26 and 27), In addition, we suppose that the legislator considered the Constitutional Court’s conclusion that a child’s father has a equal right with a mother for childrearing [8]. These conclusions are obligatory for the national legislation, including criminal and penal, regulating the respite. The legislator guaranteed a right of men and women for respite given a child under 14, though giving different positions to a man and a woman by stating that a man has a right for respite in case if he’s the only parent, all other conditions being equal with a woman’s. A respite for people with children under 14 is provided to the benefit of children, who must be brought up and supported by parents. That is why the version of the part 1 of the article 82 of the CC RF should be changed by removing the words “who is a single parent”. In this connection, it would be logical to introduce alterations to the article 145 of the CC RF as well and establish responsibility for unjustified refusal to employ or for unjustified job dismissal in respect to a man who has a child under 3. Along with that, in accordance with the part 3 of the article 50 of the Russian Constitution and above mentioned decisions of the Constitutional Court of the Russian Federation, an opportunity must be provided for a convict to apply to the court requesting release due to change of conditions [9, p.66]. In the Definition as of July 11, 2006, No.406-O, the Constitutional Court of the Russian Federation recognized that the article 79 of the CC RF in its constitutional legal meaning does not prevent an application of release on parole in respect to persons, whose death sentence was changed to imprisonment [10]. In 2007, at a claim from T.S.-M. Idalov, the Constitutional Court of the Russian Federation considered again the part 1 of the article 175 of the Penal Code of the RF, according to which a convict’s application about release on parole must contain information that he doesn’t need full service of the sentence for reformation, because he compensated for a damage in the result of a crime partly or to the full, and that he repented his

140 deed; the application may also contain other information speaking for a convict’s reformation. In the applicant’s opinion, the named provision forces him, in connection with an issue of release on parole, to recognize himself as guilty in a crime he did not commit, because otherwise release on parole will be denied in spite of good behavior during serving of the sentence. The Constitutional Court of the Russian Federation, having enucleated the constitutional legal meaning of the disputed provision, stated that, contrary to the applicant’s statement, part 1 of the article 175 of the Penal Code of the RF does not state that absence of some information in a convict’s application, including information on repentance, does not prevent consideration of such application or applying release on parole. The Constitutional Court of the Russian Federation came to a conclusion that, in virtue of the principle of legality recognized in the law-governed state, criminality of a deed, as well as its penalty and other penal consequences are determined by the criminal law, in this case, parts 1-5 of the article 79 of the CC RF, according to which the court’s recognition of a person serving the sentence as not needing full serving of the sentence for his reformation and actual serving of the sentence’s part established by the law are reasonable grounds for release on parole [11]. From the legal proposition formulated in the Decree as of November 26, 2002, No.16-П, and Definition as of October 20, 2005, No.388-O, it follows that a convict cannot be deprived from an opportunity to apply to the court for protection of his rights even in case of change of conditions of sentence service due to applying of corrective actions, at a decree of the head of a penitentiary facility (part 1, article 199 of the Penal Code of the RF), for violation of the order of serving a sentence, including such corrective action as transition of convicted men, who are heavy violators of the order, to individual ward-type rooms for a term of a up to one year (paragraph “d” of part 1 of the article 115, Penal Code of the RF). Along with that, heavy character of illegal behavior is defined in accordance with the article 116 of the Penal Code of the RF, and the corrected measure imposed, as is stated in part 1 of the article 117, must correspond to the gravity and character of the violation, be applied considering the circumstances of the violation, a convict’s personality and his previous behavior, i.e. criteria applied in selection and sentencing the measure, type and regime of the sentence in the court. Legal provisions regulating the transition to the ward-type room in reference to each other cannot assume making a rule-of-thumb decision by the administration of a correctional facility, without directions for grounds provided by the law and confirmed by corresponding actual circumstances, and all the more so changing of the type of a correctional facility prescribed by the court’s sentence at the decision of the head of the correctional facility, and therefore cannot exclude judicial inspection of justification of the correctional measure. In the Definition as of November 1, 2007, No.948-O, at the claim of A.A. Astafyev, the Constitutional Court of the Russian Federation mentioned that the right, given to convicts by the penal and criminal procedural legislation to apply regarding issues relating to their rights and legal interests not only to higher-level bodies of administration over institutions and bodies exercising sentences, prosecution bodies, but also directly to the court, serves as a guarantee of protection of their violate rights (part 4, article 12, parts 1 and 6, article 15 of the Penal Code of the RF) and doesn’t assume any seizures or limitations for convicts who are subject to correctional actions, including convicts, to whom a correctional measure was applied in a form of transition to a ward-type room, on the basis of paragraph “d”, part 1 of the article 115 of the Penal Code of the RF. Along with that, as is mentioned by the Constitutional Court of the Russian Federation, the federal legislator, in order to provide the fullest possible implementation of the constitutional rights of access to the court in the law enforcement practice, has a right to specify the procedure of protection performed as preliminary and follow-up judicial control over the change of conditions of serving the sentence prescribed by the court’s sentence. However, up to the present moment, the legislator hasn’t fulfilled the mentioned decisions of the Constitutional Court and hasn’t provided a procedure of protection and judicial control over the change of conditions of serving the sentence prescribed by the court’s sentence [12]. In this connection, it is suggested to amend the part 1 of the article 119 of the RF Penal Code with a second paragraph of the following content: “A convict, who is a subject to a correctional action leading to the

141 change of conditions of serving the sentence prescribed by the court’s sentence, has a right to appeal against the actions of functionaries of penitentiary facilities, who applied the correctional actions against him, in a judicial proceeding”.

REFERENCES: 1.Decisions. of the Constitutional Court of the Russian Federation and statistical data are cited since 1995 after adoption of the new Federal constitutional law “On the Constitutional Court of the Russian Federation” as of 21.07.1994, No.1-ФКЗ, and as of January 1, 2014. 2. Decree of the Constitutional Court of the Russian Federation on a case about examination of constitutionality of provisions of the articles 77.1, 77.2, parts 1 and 10 of the article 175 of the Penal Code of the Russian Federation, and article 363 of the Criminal Procedural Code of the RSFSR due to the claim of A.A. Kizimov as of November 26, 2002, No.16-П //Officialgazette. – 2002. – No.49 3. Kolokolov N.A., Davydova I.A., Pavlukhin A.D. Judicial control and stages of execution of criminal penalty.// Penal law: law, economic, administration. – 2009. –No.2. 4. Decision of the Constitutional Court of the Russian Federation at the claim of a citizen Eliseev Aleksey Yuryevich regarding violation of his constitutional rights by paragraphs 2 and 5 of part 1 of the article 399 of the RF Penal Code and part 3 of the article 175 of the RF Penal Code as of October 20, 2005, No.388-O // Bulletin of the Constitutional Court of the Russian Federation. – 2006. – No.2. 5.. Kolokolov N.A., Davydova I.A., Pavlukhin A.N., Erishvili N.D.Judicial control and stages of execution of criminal penalty.// Penallaw: law, economic, administration. – 2009. –No.2. 6. Decision of the Constitutional Court of the Russian Federation at the claim of a citizen Gladkov Vladimir Mikhailovich regarding violation of his constitutional rights by part 3 of the article 175 of the RF Penal Code and paragraphs 1 and 5 of the article 399 of the Criminal Procedural Code of the RF as of November 18, 2004, No.363- O // Bulletin of the Constitutional Court of the Russian Federation – 2005. – No.2. 7. Decision of the Constitutional Court of the Russian Federation at the claim of a citizen Sidorov Stepan Ana- tolyevich regarding violation of his constitutional rights by part 1 of the article 72 of the CC RF and part 1 of the article 399 of the RF Criminal Procedural Code as of November 4, 2004, No.342-O // Bulletin of the Constitutional Court of the Russian Federation. – 2005. – No.2. 8. Decree of the Constitutional Court of the Russian Federation on a case about examination of constitutionality of part 1 of the article 5 of the Federal law “On provision of benefits for temporary incapacity to work, maternity to citizens who are subject to obligatory social insurance” due to request of the Avtozavodsk district court of Tolyatti, Samara oblast, as of February 6, 2009, No.3-П // Rossiyskaya gazeta. – 2009. – February 25. 9. SkobelinS.Release on parole and replacement of unserved part of the penalty with mitigated form of punishment. // Criminal law – 2009. – No.6. 10. Decision of the Constitutional Court of the Russian Federation as of July 11, 2006, No.406-O at the claim of a citizen Gruzdev Aleksey Alexandrovich regarding violation of his constitutional rights by the article 79 of the CC RF and part 3 of the article 399 of the RF Criminal Procedural Code // Official gazette of the RF. – 2007. – No.2 – p. 403 11. Decision of the Constitutional Court of the Russian Federation at the claim of a citizen Idalov Timur Said- Magomedovich regarding violation of his constitutional rights by part 1 of the article 175 of the RF Penal Code as of February 20, 2007, No.173-O-П // 2. 12. Decision of the Constitutional Court of the Russian Federation on denial in admission of the claim of Astafyev Alexander Alexandrovich regarding violation of his constitutional rights by paragraph “d” of part 1 of the article 1, articles 117 and 119 of the RF Penal Code as of November 1, 2007, No.948 – O-O // Official gazette of the RF. – 2008. – No.2.

142 Rolf KNIEPER – Leader of the project “Legal reform in countries with transitional economy” of the German Society for Technical Cooperation (GTZ), consultant on civil and economic legislation in Albania, Armenia, Azerbaijan, Georgia, Tajikistan, Kazakhstan, Kyrgyzstan, Mongolia, Russia, Uzbekistan, Moldova, China, Ukraine; Coordinator of the project aimed at modernization of the legislation in the sphere of private law in countries with transitional economy, co-publisher of the specialized journals “Critical Justice” and “Social and Legal Sciences”, Doctor of Law, professor (Federal Republic of Germany)

NOTES TO THE CIVIL CODE OF THE REPUBLIC OF KAZAKHSTAN

ll types of societies determined by the state, which accepted fundamental economic and political solution to the benefit decentralization of property in hands of private persons, and necessity of allowance of Aexchange relations flowing from decentralization, in other words, which made decisions in favor of legality and legitimacy of market economic relations, must state that hence they made a decision in favor of establishment of the overarching civil law. Social reality creates problems, which must be regulated by means of the law. Opportunities of property keeping, protection, acquisition, preservation and inheritance must also be regulated, as well as property transition at mutual consent, i.e. transition by contract. The civil law should also take care of creation of reliable frameworks, within which agreements and treaties are concluded safely for realization of market economic relations, so that they would be in force and could be executed compulsory when necessary. This is subject to commercial and noncommercial relations. They are characterized by the fact the entrepreneurs or consumers, individual and legal entities exchange material values. Along with that, a notion of “exchange” is not interpreted as legal, because in the market economy, not an exchange is performed in most cases, but goods are sold for money. Therefore, purchase-and-sale agreement is a prototype of an agreement in the market economy. The fact, that Civil Codes contain and regulate other types of agreements, such as rent, transport, finance lease, insurance, bank transactions, provision of services or production of goods, doesn’t contradict to this pronounce- ment. The main constellation of delivery or production of a property item for money doesn’t change anything. Peculiarities may occur from characteristics of the property as benefit, or from specificity of services (“works”). For example, types of agreements take into account, if any item or intangible benefit, or a service must be created, and are subdivided in accordance with this into purchase-and-sale, licensing, service agreements; along with that,

143 among the latter there is an official agreement, contracting agreement, agreement of transportation, insurance, or bank transactions, etc. They also take into account, that if the property will be conveyed ultimately, then it is a purchase-and-sale agreement, if temporarily – then it’s a rental agreement. However, the typical for market economy counter-execution element in the form of money is a constant for all these types of agreements. Further, the civil law must take care of how consequences of possible unjustified enrichment and tortuous interference should be balanced. It should be established, what qualities persons should have in order to act at the market. For example, criteria should be established, according to which particular groups of individuals – like children or the handi- capped – require special protection and their abilities to act within the market may be limited. The civil law must create conditions for establishment, efficiency and possible limitation of responsibility of legal entities. It should determine, if the state can act at the market and under which conditions. All this can be established in the laws issued by the legislative authority. But this may develop from long- term legal precedents, and that these are precedent decisions of the judicial power, which establish “what is the law”, as it would be expressed by the British Supreme Court. Kazakhstan is firmly located in continental European tradition of systematic law codification by the legislative authority. First of all, fundamental economical and political decisions to the benefit of the market economy are realized as a top-priority positive law in the Constitution of the republic of Kazakhstan, in particular, through guarantees of property and inheritance (articles 6 and 26), freedom of entrepreneurial activity and freedom for a job (article 26, paragraph 4, and article 24) and in specific social rights (articles 1, 17, 28, 29, 30 and 31). Further, the Kazakhstani Civil Code, in consonance with the Constitution and the mentioned continental European tradition, fully reflected and specified the above mentioned and hereinafter contained tasks in the law of persons (articles 12 to 1144 of the Civil Code), in the law of property and things (articles 115 to 146, and articles 188 to 267 of the Civil Code), in the vast right of expression of will and in the contract law (articles 147 to 187, and articles 268 to 916 of the Civil Code), as well as in the tort law (Articles 917 to 952 of the Civil Code), and in the law relating to unjustified enrichment (articles 952 to 960 of the Civil Code). The civil law spoke out – correctly, from my point of view – regarding the fact that even the state can participate in market relations, and in this case it must be considered like other legal entities (articles 1 and 111 of the Civil Code). Therefore, right and necessary differentiation is introduced and realized between private law and public law relations and spheres. This very modern position was continued in the civil procedural law, where, in Kazakhstan, provisions of the international law, as an example for the national law, were introduced in a separate chapter about the state’s immunity. In all these spheres, the Civil Code established responsibility and created legal rights, equipping them with mechanisms of protection, in deliberation of different interests between creditors and debtors, commercial enterprises and consumers, violators and persons aggrieved. Especially in the contract law, the civil law established models for different types of agreements, which can be used by market participants and the base for their relations, and from which they can deviate, realizing their right for freedom of contract. Legislative models also provide a particular orientation for negotiations regarding contract making. They contain examples for correct deliberation of interests with the purpose of equitable distribution of risks. It is possible to deviate from them, if the parties introduce approximately equal prerequisites in such negotiations by agreement. If, for example, one party to a contract has more power at the market than the other one, then it cannot use this power to dictate incorrect terms, in particular, under general conditions of contract making. Types of contracts, as they are developed in the Civil Code, determine what is incorrect in such cases. Articles 388 and 389 of the Civil Code of the RoK determine basics of this approach which can be most precisely formed by precedents or – which would be better – could be specified by a new law. In addition, in the articles 961-1037, the Civil Code determines the basics of the intellectual property law, develops the inheritance law in detail (articles 1038-1083 of the Civil Code of the RoK) and includes international private law (articles 1085-1124 of the Civil Code of the RoK).

144 As against many European Codes, the family law was not included. The labor law is also considered in other laws, which is probably connected with the fact that collective contracts have so many peculiarities in contracts on tariff rates that they would “blow up” the unity of the Civil Code. Special problematic is seen in the labor law. In Germany and France, there are separate Codes, American Uni- form Commercial Code can be mentioned here as well, although in fact it was not a directly applicable law. Modern civil codes, such as Dutch, Italian and Quebecois refused from a special commercial code and integrated – successfully, from my point of view – a subject regulated by such codes into the civil code. Kazakhstan has also taken this way, like most legislators of the post-Soviet countries, except for Ukraine. I reckon that this is a rational way. There is no need in a separate commercial code. The danger of intersecting is so high, like the Ukrainian example demonstrates, that the law is subject to a danger of mixing the public and private law, which violates the system of law development and leads to practical difficulties. In addition, it is to be recalled that both in France and in Germany, such separation was caused not by structural reasons, but particular political and constitutional legal constellations. At first, the central state in Germany didn’t have competences for issuing laws for general civil law, and it adopted commercial law by reason of urgency. Similar prerequisites accompanied Uniform Commercial Code. There is another issue, relating to the following subject: should particular spheres (literally, “matters”) be regulated better in separate laws due to their complexity, an due to their dynamics, on one hand, and by a necessary mix of the public and private law, on the other hand. I think, on one hand, about the patent law, which obligatorily contains public-private provisions in respect to organization of the intellectual property office and, on the other hand, about the law of firms (societies) which is subject to fast changes due to complication of economic relations. These are legal and political thoughts. Anyway, they must consider that always when special laws are issued, the general matter should be removed from the civil Code. Codification technics, according to which some general provisions are contained in the civil code, and as for the rest the matter is regulated in a separate law, and inevitably leads to duplication and, which is worse, to controversies which are hard to be corrected in the legal practice. The general part of the Kazakhstani Civil Code went into effect 20 years ago, and Special part – 15 years ago. This was a big step realized so quickly after the breakup of the Soviet economic system and start of market economic relations. The Code was inspired by the Model Civil Code of the CIS countries, development of which involved two outstanding scientists, professor Basin and professor Suleimenov. It is obvious that after such period of time, critical reevaluation and perhaps consolidation were needed, in particular, considering the practice of market economic relations which gained momentum fast in Kazakhstan. Stable and equitable frameworks must be developed for these relations. Contemplation regarding such further development and consolidation is being developed. I reckon that, for example, it would be timely to cancel sometimes exaggerated requirements to the written form of contracts as it is required by the article 152 of the Civil Code of the RoK. I also think that a juristic figure of the so called “standard form contract” (article 387 of the Civil Code of the RoK) shouldn’t be in the modern civil code, because it limits the freedom of contract of commercial enterprises too severely. The obligation of contract making must be in force only for strong market enterprises and monopoly enterprises. The, I recommend to realize the Roman legal principle, which is still topical today, more consistently, according to which land ownership in all constellations applies to the property of buildings connected to it. Also, it would be right to include a special chapter regarding ownership into the property law, in order to ease innocent buying of movable things on top of everything else. Register keeping should adopt a role of ownership for immovable things, and trust must be protected by correctness of register keeping. These are examples and proposals for new statues, which could be widened in systematic review. They don’t question the high quality of the Civil Code as a whole and imply, in particular, neither recommendation for its full new edition, nor internal emasculation of this law through constant new special laws regarding different matters. On the contrary: the Civil Code is a great work which should be preserved as stable as possible, and of which care should be taken through interpretation. By this means only, legal reliability can be created. Legal reliability is one of the key criteria for further dynamics of market economic relations in Kazakhstan.

145 Emil MINGOV – Head of the department of labor law and social security of the Law faculty of the Sofia University “St. Kliment Ohridski”, Doctor of Law, professor (Republic of Bulgaria)

IMPLEMENTATION OF THE CONSTITUTIONAL PRINCIPLE OF THE FREEDOM OF LABOR IN THE LABOR LEGISLATION OF BULGARIA AND KAZAKHSTAN (COMPARATIVE ANALYSIS)

1. In accordance with democratic principles of society organization, the Constitutions of the Republic of Bulgaria and Republic of Kazakhstan announce the freedom of labor as the main labor right of citizens [1]. In principle, it cannot be cancelled or limited by the law and is so fundamental that it also expresses one basic principle of the labor law – the freedom of labor and prohibition against compulsory labor. In accordance with the article 23 of the Universal Declaration of Human Rights of 1948, which proclaims the right for labor and free choice of work, the Labor Code of the Republic of Bulgaria (paragraph 3, article 1) and Labor Code of the Republic of Kazakhstan (paragraph 2, article 4, and article 6) clearly guarantee this principle as a legislative decree establishing the ways and form of legal regulation of relations between workers and employees and their employers. This fundamental principle is reflected and contained in all stages of employment relationship development – in origin, change and termination. 2. The Constitutional principle of freedom of labor, first of all, is shown in origin of employment relationship. For the internal legislation is in line with the legal framework in force regarding cancellation of compulsory labor regulated in a number of universal and regional acts (Universal Declaration of Human Rights, Inter- national Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, European Convention on Human Rights and Fundamental Freedoms and Convention No.29 and 105 of the International Labor Organization), Labor Code of the Republic of Bulgaria and Labor Code of the Republic of Kazakhstan provide for and regulate opportunity for everyone to enter voluntarily into a employment relationship and exercise labor activities in the sphere chosen by him. Ways and methods of engagement in labor chosen by the legislator correspond to traditions in each of the legislation under consideration.

146 The Bulgarian labor legislation provides for variety of grounds for employment relationship [2]. Some of them - labor contract, elections and competition – are regulated in the Labor Code, the others like an administrative regulation on assignment for a number of public posts (deputy ministers, regional directors and deputy directors, ambassadors, etc.), correctional labor without imprisonment, are subject to establishment of a number of laws in the Constitution (the Law on local government and local administration, Law on the diplomatic service, Criminal Code and Law on execution of punishment). Each of them has its specific purpose and set of facts, in exercise of which employment relationship occurs, however, each of them is based on freedom of an individual to enter or not to enter into employment relationship. The freedom of labor at the stage of employment relationship creation is expressed in the opportunity for an individual to determine the character and place of work in accordance with his interests. An expression of such freedom is mutual consent which should be achieved in conclusion of a labor contract, or wish of an individual to execute particular work in this place coming to elections or as a participant of an announced competition. Freedom of labor is also expressed in cases when a special measure of punishment is provided – correctional labor without imprisonment, when a person committed a crime and instead of imprisonment he gets a “probation” penalty, with determination of probation measure as “correctional labor without imprisonment” [3]. In this case, under prescription of the probation measure “correctional labor”, a law-enforcement body points out an employer, by which the convicted will work and with whom an employment relationship is created. However, the convict is not obliged to work and can refuse according to the principle of freedom of labor established by the Constitution. In this case, the court may assign another probation measure (restriction of free movement, attachment to professional qualification courses and/or social influence program) or such penalty as imprisonment. Due to the presence of this principle, the Bulgarian Labor Code establishes by mandatory provisions that even after conclusion of a labor contract, if a person doesn’t start execution of his labor obligations within the period of 7 days set by the law, or within the period set by consent of the parties, the employment relationship is recognized as unaccrued, except for cases when it is a result of reasons not influenced by him, whereof he notified the employer prior to expiration of the period (paragraph 3, article 63 of the Labor Code). The legislator thinks that non-arrival at a job is an expression of a worker’s unwillingness to execute labor activity, and by establishment of this fiction on the unaccrued employment relationship, relationship between the parties under concluded labor contract are regulated very fast and simply. Establishment of this juridical figure is emanation of the legislator’s understanding of consistent realization of the principle of freedom of labor, which grants everyone a right to choose, when and how to execute labor activity. Similarly, this principle is realized further, under other grounds of employment relationship creation – election to a position and competition. Since the result of election or competition is known, an employment relationship is created, and within 14 days, the elected or the winner candidate has to start execution of his obligations. In case of reasonable excuse, this term can be prolonged for up to 3 months [4]. If a person doesn’t arrive at work within the mentioned periods, the employment relationship is recognized as unaccrued. In this case, the legislator has a goal of fast regulation of relationships between the parties, under announced unwillingness or impossibility to work under the created employment relationship on the part of the worker or employee. By establishing a fiction – considering that the employment relationship entered by the worker or employee was never created – the law provides an opportunity to an individual to choose the place and character of work. The freedom of labor in the state of employment relationship creation is also expressed in the opportunity for an individual to determine the character and place of his work on the base of his interests. The fundamental character of these two elements expressing the freedom of labor underlies their establishment in the necessary content of the labor contract [5]. If there is no consent regarding the type of work to be performed by a worker or employee, then there is no ground for employment relationship creation and it cannot be realized, due to absence of one of conditions of such contract validity – achieved consent between the parties [6]. 3. The Constitutional principle of the freedom of labor is also expressed in exercising the rights and obligation under the employment relationship created. 3.1 First of all, it is expressed in the provided and guaranteed opportunity to an individual to exercise

147 the contracted labor function, in a place agreed considering his interest. According to the paragraph 1 of the article 118 of the Labor Code of the Republic of Bulgaria, the employer or worker/employee cannot change the content of the employment relationship in their sole discretion, except for cases and procedure established by the law. These cases are listed in the law: operational necessity, irresistible force, employment of pregnant women and people with reduced working capacity, and business trip [7]. The law doesn’t admit their extension, either by collective negotiations, or by their establishment by mutual consent of the parties. As establishment of conditions of labor force provision was made by mutual consent, then changing of them may be performed in other cases only by mutually agreed will [8]. In order to guarantee this and considering the proclaimed freedom of labor, the Labor Code of the Republic of Bulgaria establishes responsibility of an employer in such violation of this compulsory principle through administrative penal responsibility for violation of the labor legislation provided by the paragraph 1 of the article 424 of the Labor Code. Moreover, in case of violation of this principle, the law grants a right to a worker or employee to terminate the created employment relationship in his sole discretion and without prior notification, as his potestative right (paragraph 3, article 327 of the Labor Code). 3.2 An expression and manifestation of the freedom of labor during exercise of the employment relationship is an opportunity of workers and employees to get necessary information for the employer regarding economic and financial status of the employer, which is important in the context of their labor rights and obligations. In article 130, the Labor Code of the Republic of Bulgaria establishes the right of workers and legal obligation of an employer to provide such information to trade union and representatives of workers, who in their turn have to familiarize workers and employees with the information received from an employer, as well as to consider their opinion during consultations. This right for information and consulting with an employer is guaranteed in accordance of the Regulation 2002/14 on establishment of the general framework of information provision for workers and consulting with them in the European community. The right of workers for acquisition of information is an unalienable part of their freedom of labor, because it is essential for their motivation and interest in continuation of employment relationship. For this reason, employer’s obligation to provide information and consulting to workers and employees prescribed by the legislation in the articles 130a and 130b of the Labor Code applies both in cases of collective dismissal and change of an employer, and in the procedure of realization of two more regulations of the European Union – Regulation 2001/23 regarding transfer of enterprises, and Regulation 98/59 of the European Union on collective dismissals. This information underlies motivation of workers and employees to continue working. If it doesn’t satisfy them anymore, they have a right to terminate the existing employment relationship in their sole discretion due to the principle of freedom of labor proclaimed by the Constitution and guaranteed by the law. 3.3 The freedom of labor during employment relationship is also expressed in the right granted to a worker or employee to refuse from execution of their labor obligations under created serious and immediate danger for his health and life (article 283 of the Labor Code). The legal potestative right granted by the legislator occurs in cases when an employer fulfilled neither of his main obligations under the employment relationship with the purpose of creation of safe and healthy labor conditions, and this creates danger to life and health of a worker or employee. By suspending work, a worker in his sole discretion introduces legal alterations into his relationship with an employer until elimination of immediate danger to his life and health,in spite of the time needed to do so, because a worker’s consent to execute labor activity is reasoned by presence of such conditions that wouldn’t have an adverse impact on his life and health. For over this time he doesn’t do his work, and employer is obliged to pay a compensation to him in the amount of his employee gross payment for the time he didn’t’ work (paragraph 1, article 219 of the Labor Code)[9]. 4. Especially brightly the principle of freedom of labor is expressed in the opportunity created for a worker or employee to terminate the employment relationship in his sole discretion in cases when he doesn’t want to execute labor activities by this employer anymore. The potestative rights granted to him by the law for one- sided termination of the labor contract is an emanation of his constitutional right to choose the character and place of work. When a worker or employee doesn’t want to work by a particular employer anymore, the law grants him a right to be released from the created employment relationship by sending a notification for a

148 term of one month to the employer (article 326 of the Labor Code). This rights has a special intensity, for the law doesn’t require any motives to be submitted by a worker or employee in order to terminate the agreement. The legislator thinks that, whatever the reason is for a worker or employee’s decision to terminate the agreement, it is justified enough to lead to termination of the labor contract. Here, the freedom of labor expressed in the right of a worker or employee to choose the place and character of work underlies the establishment of this right. It is not conditioned either by eventual complications from which an employer may suffer due to the fact that he cannot reckon upon his worker or employee, or urgency of the tasks set. Of course, the freedom of labor allows withdrawing the notification sent by the worker or employee, if he changes his mind and wishes to continue working by this employer. However, a worker or employee has to notify his employer hereof before, or by latest during receipt of a notification from the employer. After receiving the notification from the employer, withdrawal of notification may be performed only with his consent (paragraph 5, article 326 of the Labor Code)[10]. But if the willingness of a worker is categorical, then nothing can prevent termination of the employment relationship. Moreover, the considered principle is of such fundamental value for full satisfaction of a worker or employee’s intention regarding his release from obligations under existing employment relationship, that the law allows him not to observe the sent notification, if he doesn’t want to. According to the paragraph 1 of the article 220 of the Labor Code, in this case a worker or employee will be obliged to pay a compensation to the employer for unobserved period of notification, and the employment relationship will be terminated immediately (subparagraph 2, p.2, article 335 of the Labor Code). The freedom of labor underlies other grounds established by the legislator in the article 327 of the Labor Code regarding one-side termination of labor agreement on the part of a worker or employee. Peculiar here is that the legislator granted a right to a worker or employee to terminate a contract immediately, without notification, the common thing here is dissent of a worker or employee to continue the created employment relationship due to circumstances stated in the law. In some cases, these are violations of the labor legislation committed against a worker or employee, due to non-fulfillment of employer’s obligations to provide work according to prescriptions of the health authorities (subparagraph 1, p.1, article 327 of the Labor Code), or delay in payment of the agreed employee pay, other compensations under the Labor Code, or non-execution of other obligations of the employer (subparagraph 3a, p.1, article 327 LC). In other cases, the reason is that a worker has another interest, which doesn’t allow him combining his obligations under the present employment relationship – transition to payable elective or competition post (subparagraph 4, p.1, article 327 LC), further education in an educational institution with regular classes or regular doctoral candidacy (subparagraph 5, p.1, article 327 LC), or he is reemployed due to recognition of dismissal as illegal, to get his job (subparagraph 8, p.1, article 327 LC), etc. All mentioned grounds are conditioned by the necessity in that a worker or employee could release from obligations to the employer in order to satisfy his interests. He is protected and secured by the legislator by granting a legal potestantive tight to a worker or employee to terminate labor agreement in his sole discretion and without notification, whereby realization of the principle of freedom of labor established by the Constitu- tion is achieved. * * * The fundamental principle of the freedom of labor is an important achievement of the labor legislation and democratic society. For this reason, the labor legislation in force has established necessary legal mechanisms of its observance, realization and guaranteeing. At the same time, in practical implementation of this fundamental principle, there are some negative trends, especially under the principle of free movement of people established as one of the fundamental principles of the European Union. Differences in economic position and payment for labor in separate EU states lead to an ominous trend of economic emigration towards developed West-European countries. Special concern is caused by the practice to hire such people without conclusion of labor contracts and, consequently, without extension of provisions of the labor and insurance legislation to them. This is done consciously and voluntarily by workers, who often help unfair and lucrative employers, and various methods are used: real employment under unclear conditions, registration of workers as self-employed and, consequently, covering the employment relationship with conclusion of civil agree-

149 ments, agreements on a business trip in order to provide services, etc. In social surveys held in the EU countries in 2014, 11% of those asked gave a positive answer to a question, if they had used goods or services, regarding which they had suspicions of VAT charge and which may be a result of illegal activities. In the survey, 32% of European citizens said that they were personally acquainted to people who worked without declaring their income or part of the income. Such answer was given by 54% of the Greeks and 39% the Cyprians; in Cyprus, the increase amounts to 4% in comparison with the previous investigation. 37% of respondents in Cyprus think that absence of control on the part of relative authorities is one of the reasons of resorting to undeclared labor. In April 2014, this ominous trend motivated the European Commission to propose formation of a European platform for prevention and reduction of illegal employment in EU countries, which would lead to improvement of cooperation between labor inspections and law-enforcement bodies across Europe. The fight against illegal or undeclared employment is necessary and needed; however, special attention should be paid to motivating people regarding this original appliance of the principle of labor freedom and voluntariness. Illegal employment is not an expression of the freedom of labor, because this principle requires worthy labor conditions – which is hardly the case of illegal employment. Such misapprehension of the freedom of labor must be changed, for it causes social dumping for other workers, loss of jobs, as well as poverty predestination for those who tomorrow will be deprived from payment by means of public insurance in case of illness, acci- dents or age. That is why manifestation of the principle of labor freedom should get through establishment of just and worthy labor conditions in all countries of the European Union, and the politics should be aimed at it.

REFERENCES: 1.. P.3 and p.4 of the article 48 of the Constitution of the Republic of Bulgaria and p.1 of the article 24 of the Constitution of the Republic of Kazakhstan. 2. Since p.1 of the article 20 of the Labor Code of the Republic of Kazakhstan provides for a labor contract as the only ground for creation of employment relationship, at first sight, it may be concluded that there are big differences in legal regime on engagement in labor in the legislation of Bulgaria and Kazakhstan. However, since p.2 of article 2 states that “In cases and according to the procedure established by the laws of the Republic of Kazakhstan, constituent documents and employer’s acts, the following procedures may precede conclusion of a labor contract: 1) election to a post; 2) election in a contest for filling of the existing position; 4) job placement by legally authorized bodies on account of the established quota; 5) delivery of a judicial decision on conclusion of a labor contract”, I believe that this is an issue of the legislative technique in establishment of ways of engagement in labor. 3. Probation is a punishment measure established in the article 37 of the Criminal Code of the Republic of Bulgaria along with imprisonment, penalty, forfeiture of property, deprivation of a right to hold a particular official or public rank, etc. It is expressed in prescription of particular measures provided by the article 42a of the same Code, such as measures or control and enforcement without imprisonment, which are prescribed individually or combined, which are compulsory residence registration, compulsory meetings with the authorized representative of the probation service, restriction of free movement, attachment to professional qualification courses, social influence program, correctional labor, voluntary labor to the benefit of the society. 4. P.2 of the article 86 and p.2 of the article 96 LC of the Republic of Bulgaria. 5.P. .1 of the article 66 of the Labor Code of the Republic of Bulgaria and article 28 of the Labor Code of the Republic of Kazakhstan. 6. This follows from the general principle established by our legislation in respect to contracts. According to p.2 of the article 26 of the Law on obligations and contracts, absence of consent leads to invalidity of the contract. 7. The Labor Code of the Republic of Kazakhstan, similarly to the Labor Code of the Republic of Bulgaria, regulates the issue of stability and one-side invariability of the employment relationship by clear establishment of

150 exceptions from it (articles 42-45). Moreover, even in case of urgent necessity to change conditions, upon which the labor contract was concluded, in case of reorganization or reduction of the volume of works, the article 48 provides that is a worker doesn’t agree to continue working under new conditions, them the employer is obliged to offer him in a written form a new job if available, corresponding to qualification and health condition, and in case of absence of such job – a vacant position at a lower level or lower-paid work, which may be performed by the worker considering his qualification and health condition. And only in the case of written rejection of a worker to continue work due to the change of labor conditions, the labor contract with a worker is terminated, because the legislator considers that he doesn’t agree to work under such conditions anymore. 8. Similar decision in accordance with the principle of labor freedom, according to p.1 of the article 24 of the Constitution of Kazakhstan, is established in the labor legislation. In accordance with p.2 of the article 41 LC of Kazakhstan, transfer to other work or to another place, except for cases listed in the law in detail (operational necessity, down time, because of health condition, etc.) may be performed only with consent of a worker. 9. Such legal right is granted to workers according to p.2 and 3 of the article 311 LC of Kazakhstan as well; moreover, the law states clearly that refusal of a worker to execute works in case of occurrence of immediate danger for his life and health or surrounding persons doesn’t lead to bringing him to disciplinary and (or) material responsibility. For the down time due to violation of safety and labor protection obligations by the employer, a working place (positions) and average payment are preserved for a worker. 10. Consistent position of the Kazakhstani legislator regarding establishment of necessary guarantees of labor freedom underlies the right established in the article 57 LC of Kazakhstan given to a worker to terminate the agreement at his initiative by notification; however, in comparison with the Bulgarian Labor Code, the legal framework is more liberal, because it allows a worker to withdraw his application in his sole discretion prior to expiry of notification (See p.5, article 57).

151 Lidiya NUDNENKO – Professor of the Department of Legal Support of public and municipal service of the Institute of Public Service and Management of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, Honored Worker of the Higher Professional School of the Russian Federation, Doctor of Law

CONSTITUTIONAL BASIS OF ELECTIONS IN THE REPUBLIC OF KAZAKHSTAN

he Constitution of the Republic of Kazakhstan as a single source of the state authority secures the nation which exercises the power directly through a republican referendum and free elections, although Trepublican referendum in the system of institutes of direct democracy is called the first one, however, the most popular institute of direct democracy is elections. By means of elections, the people of Kazakhstan determine the structure of state authorities and local government bodies, to which the nation delegates exercise of power owned by it. The Constitution of the Republic of Kazakhstan doesn’t contain a special chapter dedicated to the election system. Separate provisions characterizing the electoral system are contained in the number of provisions of the Constitution: article 33 determining the right of citizens to participate in elections; article 41 guaranteeing classical principles of the electoral law; article 51 regulating the basics of the electoral procedure of the Parliamentary chambers of the Republic of Kazakhstan: article 52 establishing the basics of activity of the Parliament deputies of the Republic of Kazakhstan. The constitutional provisions are specified by the Constitutional law of the Republic of Kazakhstan as of September 28, 1995, No.2464 “On elections in the Republic of Kazakhstan”. Analysis of the above mentioned provisions allows marking the principles of election law in the electoral legislation of the Republic of Kazakhstan which may conventionally be classified to the principles of the first and second generation. The first generation principles include classical principles of election law: universal equal electoral right, direct elections and ballot vote. The principle of the universal right of suffrage is characterized by qualifications of a voter, which should be met by a person seeking to execute functions of the nation’s representative public authority. The purposes

152 of voter qualifications establishment include protection of voters’ rights, selection of representatives capable to exercise the state authority and local government to the benefit of the nation, local community. A general requirement to persons seeking for realization of the right to be elected is a citizenship qualification, i.e. presence of citizenship of the Republic of Kazakhstan. Along with that, only a native-born citizen of the Republic of Kazakhstan can become a President of the Republic, i.e. naturalized citizen doesn’t have such opportunity. In the legislation of the Republic of Kazakhstan, there is no prohibition for double citizenship of elected representatives of the nation, which is peculiar to the legislation of the Russian Federation, for example. Another qualification of is a local residence requirement, which is a requirement of permanent or preferred residence of a citizen within a corresponding territory for getting the passive electoral right. The qualification meaning lies in that the elector must be aware of minimum requirements of a location where he is going to run for a deputy or elected public post. The local residence qualification for Parliament deputies is 10 years of permanent residence within the territory of the Republic of Kazakhstan, and for a candidate for the presidency of the Republic of Kazakhstan it is 15 years. The age qualification for deputies in the Republic of Kazakhstan amounts to 25 years for deputies of Mazhilis of the Parliament, 30 years for deputies of the Senate of the Parliament, 20 years – for maslikhat deputies. A candidate for the presidency of the Republic of Kazakhstan must not be younger than 40 years. The maximum age for deputies is not provided. The electoral tights of the Republic of Kazakhstan is positively characterized by presence of education qualification in the Constitution of the Republic of Kazakhstan for deputies of the Senate of the Parliament – higher education. The presence of the education qualification can be explained by the fact that the elections procedure must be aimed at election of not just deputies, but people worthy exercising the function of the nation’s representative, those who can exercise their duties better. The Constitution of the Russian Federation determines two categories of citizens not participating in elections. First of all, in accordance with part 3 of the article 33 of the Constitution of the Republic of Kazakh- stan, citizens recognized as disabled by the court don’t have a right to vote or to be elected. This rule may conventionally be called a health qualification. This rule however cannot be considered as limitation of the universal right of suffrage. Participation in elections is the act of expression of citizens’ conscious will and it’s natural that people, who fail to realize their actions, cannot participate in elections. According to part 3 of the article 33 of the Constitution of the Republic of Kazakhstan, another category of citizens, who cannot elect or be elected, includes people imprisoned by the court’s sentence. Deprivation of electoral rights from persons imprisoned by the court’s statement is established in Austria, Belgium, France, Greece, Italy, Luxemburg, Malta, Norway, Russia and other countries. Deprivation of the right to elect and to be elected from persons imprisoned by the court’s sentence is aimed at elimination of a possibility of criminal influence upon formation of the national representative bodies, non-admission of violators to the elective bodies of the state authority and local government. In order to realize the right to be elected, the qualification of limitation of tenure of an elected office during a particular period is in force in the Republic of Kazakhstan. Thus, same person cannot be elected as the President of the Republic of Kazakhstan for over two terms in a row (part 5, article 42 of the Constitution of the Republic of Kazakhstan). It should be noted that the provision limiting the tenure of an office by an elected official to two terms of powers is established in legislations of all democratic countries. A rule of repugnancy influences upon the circle of persons striving to realized their right to be elected. Repugnancy means prohibition of combination of a deputy’s seat, elected post in the state and municipal body during the whole period of exercising the powers of the nation or local community’s representative with tenure of particular posts and execution of particular professional obligations. Is such repugnancy a qualification? We suppose, no. Repugnancy doesn’t influence upon the circle of persons who can be admitted to

153 nomination and registration as a candidate for deputy of elected official and municipal post. However, being elected, such persons may become deputies, elected officials under observance of the rule of repugnancy of a deputy’s seat, elected post with replacement of constitutionally determined posts in the public authorities and law-determined types of paid activities. In addition, the rule of repugnancy prevents elected representatives in the public authority and local government bodies from using their official position in order to derive profit for themselves or other persons, and it pursues a justified purpose to eliminate conflict of public and private interests. The example of repugnancy can be content of the article 43 of the Constitution of the Re- public of Kazakhstan, according to which the President of the RoK doesn’t have a right to be a deputy of a representative body, to occupy other paid positions and conduct entrepreneurial activity. The repugnancy rule is peculiar to content of constitutions of all democratic states [1]. Qualification of knowledge of the official language by claimants for the position of the President of the Republic of Kazakhstan is peculiar for election legislation of the Republic. According to part 2 of the article 41 of the Constitution of the Republic of Kazakhstan, a citizen of the Republic, who is fluent in the official language, can become the President of the Republic. In the Republic of Kazakhstan, as well as in a number of other countries, right to be elected is granted only after depositing the electoral pledge by a candidate. A candidate for deputy of the Senate of the Parliament of the Republic of Kazakhstan, prior to registration, deposits a pledge to the account of the Central Election Commission equal to 15-fold amount of the minimum wage established by the legislation. The deposited pledge is returned to a candidate in cases, if following the results of voting, a candidate received at least 5% of votes, and in case of a candidate’s death. In other cases, the deposited pledge is non-refundable and is directed to the republican budget revenue (article 73 of the Constitutional law “On elections in the Republic of Kazakhstan”). In the opinion of V.E. Chirkin, the electoral deposit has both advantages and disadvantages. An advan- tage of the electoral pledge is simplicity of its depositing for registration as a candidate provided that such amount of money is available. However, this qualification limits participation of poor candidates in elections, and facilitates participation in the election campaign of “candidates, who definitely don’t have a chance to be elected and who use the election campaign, radio, TV, and funds allocated by the state for the purpose of their popularization”[2, p.233]. An innovation of legal regulation of classical principles of electoral law in the Republic of Kazakhstan is a provision of part 2 of the article 50 of the Constitution of the Republic of Kazakhstan regarding establishment of the Senate of the Parliament with 2 people from each oblast, city of republican status and the capital of the Republic of Kazakhstan. Significantly, the term “establishment”, not “election” is used in this provision of the Constitution. This provision is developed by provision of the article 7 of the Constitutional law “On elections in the Republic of Kazakhstan”, which is called “Indirect electoral right” and provides that elections of deputies of the Senate of the Parliament involve electors – citizens of the Republic, who are maslikhat deputies. Electors participate in deputy elections to the Senate on equal grounds, and each of them has one vote in election of a deputy of the Senate. An innovation of the electoral legislation is also exclusion from elections of fifteen Senate deputies assigned by the President of the Republic considering the necessity to provide representation of national, cultural and other significant interests of the Society in the Senate. The Constitutional law “On elections in the Republic of Kazakhstan” guarantees principles of the second generation. First of all, their number includes freedom of elections guaranteed by the Constitutional law on elections in the Republic of Kazakhstan, the article 2 of which states: “Elections in the Republic are based on the free exercise of a right to elect and to be elected by a citizen of the Republic”. The following constitutional provisions form the constitutional base of this principle: part 1 of the article 1, characterizing the Re- public of Kazakhstan as democratic, law-governed state being established; article 3 proclaiming the nation as

154 a single source of power in the Republic of Kazakhstan, and this power is exercised directly through elections; article 20 guaranteeing the freedom of speech and right for information; part 1 of the article 33 recognizing the right of citizens of the Republic of Kazakhstan to participate in public administration directly through elections, and by representatives. The problem of participation in elections has always been topical for the study of constitutional law. Thus, B.N. Chicherin notes that is democratic school in the constitutional law considers electoral principle as a right of every free person for take part in joint activities and considers personal will of each individual to be the base of power, then the authors of “protective direction” see not so much a right here as an obligation to be executed by citizens for the public good [3, p.10]. “Protective direction” in the context of correlation of freedom and obligation within the framework of the electoral legislation is preserved in the science and legislation of a number of foreign countries guaranteeing the obligation of citizens to take part in election of representative bodies (Austria, Greece, Turkey). Admin- istrative and criminal legislations of these countries establish juridical responsibility for non-participation in elections. Establishment of the obligation of citizens to take part in elections is aimed at fight against absenteeism. According to the opinion of B.N. Chicherin, such difference of views “flows from the fact that electoral law has two sides. As representation, it is both an expression of freedom and state authority. But the principle of freedom prevails here; in this context, the democratic school has a more correct look at it. The electoral law is the right, first of all; it is granted to a citizen not as to an official, but as to a member of society so that he could express his opinions and protect his interests. But the freedom is the source of every right. The rights is freedom determined by the law or an opportunity to act” [3, p.10-11]. Therefore, the electoral law is identical to political freedom or freedom of citizens as of members of the state. Such interpretation of the principle of citizens’ free participation in elections is peculiar for modern science of the constitutional law and legislation. According to G.N. Andreeva and I.A. Starostina, “free participation in elections means that a citizens decides for himself to take part or not to take part in elections. This interpretation of the free election principle derives from liberal ideas of society organization as realization of the idea of freedom. From the liberal point of view, the liberty is a defining principle in all spheres of social life, including the sphere of electoral law: no one can be forced to participate in elections in a free society” [4, p.172]. The right of the owner of eligibility to be elected for freedom of speech assumes the following: the right to stick to his opinions and convictions without restriction and the right for free refusal of them; the right for free expression of own opinions and convictions; the right for communication in by word and in written form, including the right to refrain from communication; the right for free choice of a language of communication [5, p.355]. No one can be forced to express his opinions and convictions. Another principle of the second-generation electoral law is a principle of voluntariness which is specified in the part 3 of the article 3 of the Constitutional law on elections: “Participation of citizens of the Republic is voluntary. No one has a right to force a citizen to take part or not to take part in the elections, as well as to restrain his expression of will”. Analysis of provisions of the Constitutional law on elections allows marking the adversarial principle which can be derived from content of part 1 of the article 61, according to which, in case if as a result of withdrawal of candidates upon termination of registration there are less than two candidates to the presidency left, the Central Election Commission prolongs by a decree the election term for no more than 2 months. Therefore, voting for a single candidate is not admitted in the Republic of Kazakhstan, because in such situation, the elector doesn’t have alternatives, and the elections turn to formal voting. A principle of openness and publicity is one of new principles of electoral law realization marked in the modern juridical literature by a number of authors. Presence of the article 20 of the Constitutional law on

155 elections speaks for highlighting openness and publicity as the principle of elections; according to this article, activities of election commissions are performed openly and publicly. In addition, the Convention on the standards of democratic elections, electoral rights and freedoms in member countries of the Commonwealth of Independent States establishes that organization of the election process is provided by impartial election bodies working openly and publicly under efficient public and international supervisions (subparagraph d, p.2, article 10). Openness and publicity in realization of the electoral law allows eliminating possible mistakes and faults, limiting the possibility of falsification and forgery, strengthening citizens’ confidence in the election results. Analysis of the legislation of the Republic of Kazakhstan allows marking the following conditions determining the opportunity to realize the electoral right openly and publicly – activities of election commissions in provision of information to voters regarding the procedures and terms of preparation and conduct of elections, activities of agents of candidates for deputy and elected official posts, activities on international and local supervisors on the voting day at electoral precincts, activities of journalists and mass media. Therefore, the electoral legislation of the Republic of Kazakhstan meets international standards, is improved as and when necessary and properly regulates the law-enforcement practice of exercise of citizens’ right to participate in public administration through direct democracy.

REFERENCES: 1. Malinovsky V.A. The leader: presidential government in Kazakhstan at the turn of the century. Astana. “Norma-K” publishing house. 2012. 2. Chirkin V.E. Comparative constitutional law. Textbook. M., 2011. 3. Chicherin B.N. About representation of the people M., 1899. 4. Andreeva G.N., Starostina I.A. Electoral law in Russia and foreign countries. M., 2010. 5.. Nudnenko L.A. Some problems of content and realization of the constitutional right for freedom of speech // The law of Ukraine. 2012. No.3-4.

156 Igor OSTAPOVICH – Senior Researcher of the Gorno-Altaisk State University, Candidate of legal sciences, associate professor

THE ROLE OF REGULATORY CHARACTER OF DECISIONS OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN IN PROVISION OF UNIFORM RULE-MAKING SYSTEM

n 2015 Kazakhstan celebrates the 20th anniversary of the Constitution of the Republic of Kazakhstan; the Constitutional Council of the Republic of Kazakhstan plays a significant role in its stability and preserva- Ition of the spirit of its provisions. The practice of the Constitutional Court of the Republic of Kazakhstan develops conceptual understanding of provisions of the Constitution of the Republic of Kazakhstan, which is reflected in the legal regulation of Kazakhstan. In interpretation of provisions of the RK Constitution, the unity of rule-making is achieved by the following aspects: 1) regulatory resolutions of the Constitutional Council of the RK are of obligatory for all; 2) the practice of direct application of the constitutional provisions is widened. Activities of the RK Constitutional Council in this direction are understood as reduced correction (V.A. Malinovsky) or as creation of legal provisions (E.B. Abdrasulov) [1, p.73-78]. Along with that, the meaning of searching for optimized ways to eliminate judicial mistakes, which could be caused by an unconstitutional law, is very important (I.I. Rogov [2, p.13-19]). On May 29, 2014 the heads of the Republic of Belarus, Republic of Kazakhstan and Russian Federation signed a Treaty on the Eurasian Economic Union aimed at adopting a uniform coordinated economic policy [3]. In Russia it is ratified by the Federal Law as of October 3, 2014 [4]. The above mentioned circumstances imply further integration of the legislation, within the framework of which a uniform legal space may be cre-

157 ated. As is known, the constitution of the country is the main vector of development of the state; that is why the laws adopted there must correspond to it. In this connection, it becomes attractive to investigate the specialized institute of constitutional control in the mentioned countries, which discards unconstitutional legislation and may through practice facilitate searching for an optimal decision of integration (implementation) of the legislation within the post-Soviet area. Foreign researchers recognize the important role of constitutional control bodies in the political process (P. Häberle) and political guaranteeing of the constitution by the head of the state (K. Schmitt) [5, p.30- 32], and, consequently, in provision of a uniform rule-making system. According to A. Miller, in American standards of jurisprudence, participation of the judicial authority in the political process is indisputable, as well as “when, in cases, to what extent and with which result such participation takes place” [6, p.5]. In the modern history of Russia, Belarus, Kazakhstan there were particular political events which call this thesis into question. In Russia this was the parliamentary crisis of 1993; in Belarus – the constitutional crisis of 1996, which resulted in resignation of the chairman of the Constitutional Court of the Republic of Belarus; and in Kazakhstan – dissolution of the Supreme Council and later reformation of the Constitutional Court of the Republic of Kazakhstan into the Constitutional Council in 1995. Protecting the Constitution, being the “Constitution guard”, the constitutional control body protects the fundamentals of the constitutional system established in its text as well. Under such circumstances, the constitutional control body doesn’t become a political instrument for establishment of totalitarianism, but it doesn’t completely fall out of the political process. Legal proposition stated by the constitutional control bodies acquire features of provisions in the context of elimination of the legislator’s mistakes, or on the contrary, confirmation of reasonableness of his decisions. Provision of a uniform rule-making system is guaranteed by the stable work of the constitutional control body. Along with that, regulatory acts governing the legal status of the constitutional control body are the example of stability and legal quality. Thus, alternations to the Constitutional law “On the Constitutional Council of the Republic of Kazakhstan” [7] were introduced four times: following the results of the constitutional reform of 2007, and due to improvement of the procedural legislation (2004, 2013, 2014). Changes to the Federal constitutional law “On the Consti- tutional Court of the Russian Federation” were introduced 12 times, which was connected with reorganization of rules of procedure in the Constitutional Court of RF (2008), establishment of the new Supreme Court of RF (2014) and other important constitutional legal changes. The Law of the Republic of Belarus “On the Constitutional Court of the Republic of Belarus” [8] was in force for 20 years with a small number of alterations introduced in 1996 during reform of the Constitutional provisions following the results of the referendum, and in 2008 by the presidential decree establishing the rules of implementation of preliminary constitutional control [9]. In April 2014, it became inoperative due to adoption of the law “On constitutional proceedings” [10]. Stability and substantial quality of the legislation on the constitutional control allow supposing that public political relationship and impossibility of full political apathy in activities of the constitutional bodies are not exclusive of the number of positive trends in the sphere of realization of their powers. The first of them is participation of the constitutional control body in modernization of the legislation. This means overrunning the abstract compliance assessment and increasing activity in the sphere of the rule-making. The second trend is connected with acquisition of provisional features by acts of the constitutional control bodies. This signals the recognition of legal efficacy of these acts equal to the legal efficacy of the Constitution itself. Finally, the third trend may be denoted with the help of development of doctrinal approaches, with the help of which substantiation is given to the specific role of the constitutional control body in development of the legal system of the state. It would seem that all three trends are influenced by the political legal regime established by the state Constitution. Considering the detected trend within the framework of establishment of the positive experience of the Repub- lic of Belarus and Republic of Kazakhstan in the sphere of constitutional control exercise, the following parameters

158 are to be considered. First of all, provisions of the legislation regarding constitutional control secondly, basic scientific propositions in the sphere under consideration. Thirdly, practical activity of the constitutional control bodies. Analyzing the legislation of the Republic of Belarus and Republic of Kazakhstan about the constitutional control, it’s necessary to mention a number of provisions which are in fact identical for the legislation of the Republic of Belarus and Republic of Kazakhstan. Their presence reasons related directions of activity within the framework of provision of the uniform rule-making system. Of these, a procedure of the constitutional control body formation may be highlighted. The mentioned procedure, as it would seem, is at the origins of determining the provisional character of decisions made by the constitutional control body along with collegial character of their making and special criteria of legal force. This, in the Republic of Belarus, half of the structure of the Constitutional Court are assigned by the Presi- dent of the country, another half – by the upper house of the Parliament; in the Republic of Kazakhstan, the number of members assigned by the Parliament is even higher – 4 out of 7. As is known, in Russia, the article 4 of the Federal constitutional law “On the Constitutional Court of RF” provides for assignment of the whole structure of this court by the Council of the Federal Assembly of RF proposed by the President of RF. Formation of the constitutional control body on a parity basis illustrates the checks and balances system built in the state in the structure of powers separation. At the same time, the Russian legislation doesn’t leave theoretic chances for a conflict between the supreme body of the legislative power and the head of the state in formation of the structure of the constitutional control body. Along with that, it is obvious that consideration of political circumstances is needed in such situation. In general, over the years of activity, the Constitutional Court of the Republic of Belarus and the Constitutional Council of the Republic of Kazakhstan haven’t created any precedents of political discord, including during formation of their structure. Moreover, the legislations of the Republic of Belarus and Republic of Kazakhstan set a special form of interaction with the head of the state and the supreme body of legislative power – annual sending of messages regarding the condition of the constitutional law. This is provided in the article 53 of the Constitution of the RoK and article 17 of the Constitutional law “On the Constitutional Council of the Republic of Kazakhstan”, articles 161-163 of the Law of the Republic of Belarus “On the constitutional proceedings”. On the base of messages, development of necessary directions may be performed for the body of legislative power. In addition, on the base of their content it becomes obvious, what influence is exercised by decisions of the constitutional control body upon rule-making. This form of interaction has an indirect, but vivid relation to the issue of recognition of provisional character of acts of the constitutional control bodies. It was positively assessed in research investigations (E.B. Abdrasulov, V.V. Podgrusha) [11]. Part 3 of the article 100 of the Constitution of RF contains a provision on joint hearing of the messages of the Constitutional Court of RF by houses of the Federal Assembly of RF. How- ever, no detailed legal mechanism has been established in this connection. In the Russian juridical science, antithetical positions are expressed regarding this issue. Sending messages about the condition of the constitutional law is recognized as an obligation of the constitutional control bodies (G.A. Gadzhiyev, L.M. Zharkova, T.G. Morshchakova, Yu.A. Tikhomirov)[12]. More narrow approach assumes this type of activity to be an original “spare tool” (V.D. Zorkin, M.A. Mityukov)[13, p.27-33]. Sending messages is recognized as the rights of the constitutional control body (S.A. Avakyan, N.V. Vitruk)[14]. The practice of the constitutional control bodies of the Republic of Belarus and of the Republic of Kazakh- stan allows making a conclusion that main legal propositions formulated by the constitutional control bodies are informed to the legislatorby messages about the condition of the constitutional law. Thus, in the Message of the Constitutional Council of the RoK as of June 12, 2013, No.09-3/1, attention was paid to the elaborated legal propositions in interpretation of content of the notions “other regulatory legal acts” (p.8 of the article 62 of the Constitution of the RK) and “other regulatory acts” (p.1 of the article 83 of the Constitution of the RoK) [15]. In addition, in this manner, the legislator’s attention is.called to the gaps in the legal regulation.

159 In the Message about the condition of the constitutional law in the Republic of Belarus, in 2009, the Constitutional Court of the Republic of Belarus noted the necessity of more complete and timely realization by the state authorities and officials of the legal propositions and suggestions of the Court aimed at improvement of the legislation, and protection of citizens’ rights and freedoms [16]. Without exercising the rights of legislative intention, the constitutional control body gets a legal opportunity of indirect participation in the legislative process. Regarding recognition of regulatory character of such acts, it can be noted that it seems quite conditional. However, along with that, they establish the base for development of projected laws, the necessity of which was stated by the constitutional control body in its message. Without being regulatory from theoretical legal positions, such act becomes a source for further rule-making. The legislation of the Republic of Belarus doesn’t exclude follow-up constitutional control, i.e. recognition of unconstitutionality of a law after its promulgation and entering into force (article 114 of the Law of RB “On the constitutional proceedings”). Similarly, under the follow-up control procedure, constitutionality of an international treaty or interstate agreement may be checked (articles 119-124, 125-131 of the Law of RB “On the constitutional proceedings”). For comparison, in the Republic of Kazakhstan, follow-up control is possible according to the procedure established by subparagraph 1 of paragraph 4 of the article 17 of the Law of RK “On the Constitutional Council of the Republic of Kazakhstan” under consideration of .the court’s application establishing possible incompliance to the Constitution of RoK of a law which is to be applied in a particular case. Follow-up control, therefore, in both states is of selective character. A similar situation is in the Russian legislation; however, due to existence of the constitutional claim institute, exercise of supervisory powers is connected not only with consideration of the state authorities’ applications. A general direction of researches in Russia, Belarus and Kazakhstan is interaction of the constitutional control body with other state authorities (V.V. Komarova, P.P. Miklashevich, G.S. Sapargaliev, V.V. Skitovich, A.G. Tikovenko). Along with that, statement about a special character of state authoritative powers of the constitutional control body is traditional [17]. Interests in the juridical science of the Republic of Belarus and Republic of Kazakhstan is generated by problems of interaction of the constitutional control body with the head of the state (E.M. Abaydeldinov, S.T. Amirbekov, A.P. Derbin)[18]. Under conditions of strong presidential government, the constitutional control body obviously interacts to a greater degree with the head of t he state in order to provide the uniform rule- making system. Along with that, in the Republic of Kazakhstan, the President actively exercises the right for application to the Constitutional Court of the RoK (regarding issues considered from 1996 to 2012 – in 23% of cases). In the Concept of the legal policy of the Republic of Kazakhstan for the period of 2010-2020, one of the main directions of the national law development is further realization of legal ideas and principles of the Constitutional of the Republic of Kazakhstan, which must be .implemented in legislative, organizational and other measures of the state. In this connection, efforts of the state and public institutes should be focused upon implementation of the constructive potential of the RK Constitution. In the process of legislation improvements and in course of the law-enforcement activity, it’s necessary to follow the principles of the Con- stitution supremacy and accordance of lower-level acts to higher-level acts. In the considered context, provision of the uniform rule-making system by the constitutional control body may be assessed from the following positions as well. The Constitutional Council of the Republic of Kazakhstan established the practice of recommendations to the Government of RoK to initiate introduction of alterations into the inspected legal act, which would take into account legal propositions of the constitutional control body (regulatory resolution of the RK Constitutional Council as of June 11, 2014, No.2). Therefore, the provisional character of acts of the constitutional control bodies of the both states allows creating conditions for legislation improvement. In Kazakhstan, the Constitutional Council participates in exercise of the rule-making function through preliminary constitutional control. This allows timely preventing violations of the constitutional law, i.e. facilitates stability of the state. Exercising the rule-making function by the RK Constitutional Council eliminates the problem of cancellation of a great number of bylaws, which is typical for follow-up constitutional control, and this

160 supports the prestige of the legislative body. And finally, this gives an opportunity to the head of the state and to the head of executive power to prevent distribution of powers in a different way than it’s established by the Constitution of the country. At the same time, alteration of an adopted law is possible before proclamation (p.2, part 1, article 72 of the RK Constitution). This may happen if the Constitutional Council recognizes the adopted provisions as nonconforming to the RK Constitution. In fact, the law brought to proclamation expresses the will of the legislative body, but it must accept the decision of the Constitutional Council. Therefore, the Constitu- tional Council can formulate its proposition regarding alteration of content of a law already adopted. For comparison, in the article 116 of the Constitution of the Republic of Belarus and in the Law “On the Constitutional Court of the Republic of Belarus”, it is granted with the following powers: 1) counseling regarding compliance of laws, decrees, Presidential decrees, international contractual and other commitments of the Republic of Belarus with t he RB Constitution and international legal acts ratified by the Republic of Belarus; 2) counseling regarding compliance of acts of intergovernmental organizations, which include the Republic of Belarus, Presidential decrees issued for the purposes of the law, with the Constitution, international legal acts ratified by the Republic of Belarus, laws and decreed; 3) counseling regarding compliance of decisions of the Council of Ministers, acts of the Supreme Court, Supreme Economic Court, General Prosecutor with the RB Constitution, international legal acts ratified by the Republic of Belarus, laws, decrees and orders; 4) counseling regarding compliance of acts of any other state authority with the Constitution, international legal acts ratified by the Republic of Belarus, laws, decrees and orders. Regulatory acts or their separate provisions recognized as unconstitutional become invalid according to the procedure established by the law. Belarusian jurists note that legal propositions of the Constitutional Court are the base for correction of the legislation, change of its practice in the application; they contain conceptual approaches for future decisions [19, p.151]. At the same time, it’s hard to speak about lodgment of the Constitutional Court of the Republic of Be- larus with functions of “positive” legislator, because conclusions given by it serve only as a base for future alterations of the legislation. The use of the term “conclusion” gives reason to believe that its execution is under condition of performance of particular actions for alteration by the legislator or body, which adopted the regulatory act. In the Russian legislation, the decision of the constitutional control body can be applied directly, therefore there’re more guarantees of its implementation. Analysis of the role of the regulatory character of decisions of the RK Constitutional Council in provision of the uniform rule-making system allowed making the following conclusions. Firstly, actual participation of the constitutional control bodies in provision of the uniform rule-making system is realized through sending messages to the legislative body and to the head of the state, as well as through compulsory (facultative) preliminary control of the constitutionality of regulatory legal acts. Secondly, interaction of the investigated bodies with the executive authority allows initiating introduction of alterations into the inspected regulatory act, considering legal propositions of the constitutional control body. Thirdly, regulatory character of acts of the constitutional control bodies of the both states allows creating conditions for improvement of the legislation.

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162 Tatyana OTCHESKAYA – Judge of the Arbitration court of the West- Siberian region of the Russian Federation, Doctor of Law, professor

CONSTITUTIONALISM IN KAZAKHSTAN – CURRENT REALITY

he policy held by the heads of the states of the Russian Federation and Republic of Kazakhstan – V.V. Putin and N.A. Nazarbayev – meets the requirements of people of Kazakhstan and Russia. T Most of us were excited seeing the conclusion of the Treaty between the Russian Federation, Republic of Kazakhstan and Republic of Belarus in Astana. It’s gratifying that policy in Kazakhstani regions is held in compliance with aspirations of our presidents and nations. For each person, a place where he was born is sacred. This may be a forgotten village, a big city, a usual regional center or a big state. My Motherland now is the Republic of Kazakhstan, and in the Soviet period it was Praporshchikovo village, Glubokovsky district, East-Kazakhstan oblast of the Kazakh Soviet Union Republic. I finished school there, then left the village and went to the big world – a far Siberian city Tomsk of the Russian Federation, where I studied in one of the oldest universities – Tomsk State University, getting legal education there. In the Russian Federation after graduation from the University I learned professional skills working in 1980-1985 in Primorsk Krai as a person in charge or the legal aid bureau of Olginsky district. I came back to my Motherland – Kazakhstan in 1985 and started working in prosecution bodies, combining main work with teaching at the East-Kazakhstan State University from 1993 to 2000. For 15 years I dealt with issues of prosecution supervision over legitimacy of consideration of civil and economic disputes by courts. Considering my experience, I can say that all efforts in those years were aimed at restoration of violated rights of citizens and economic entities. By solving claims, talking to claimants, organizing and holding inspections on received applications, I was interested in that the violated rights of citizens guaranteed by the Constitution of the Republic of Kazakhstan – the

163 right for life, health, labor – would be real, and violations of these rights would be eliminated, because the Con- stitution presides only in a state where supremacy of law, economic development and political stability are real. I lived in an independent state - the Republic of Kazakhstan in the first years of its formation and I felt the difficulties of the first steps, when the state established itself on the international level. When it worthily tried to build the economy, develop and adopt laws to guarantee rights of citizens and economic entities proclaimed by the Constitution. Real steps in strengthening the nationhood of independent Kazakhstan were possible under the real Leader of the nation – the President N.A. Nazarbayev. His role in the history of the Republic of Kazakhstan will be investigated by historians. Since 2000 I’ve been living in the Russian Federation and I’m proud to be a citizen of the Russian Federa- tion – one of the largest states in the world. Here, I’ve been assigned by the decree of the President of the Russian Federation to a high position – the judge of the Federal arbitration court of West-Siberian district, I’ve been given the housing of high level and an opportunity to combine administration of justice with teaching, because even living in the Republic of Ka- zakhstan I presented a thesis for a candidate of law in the Dissertation Council of the Tomsk State University. Being engaged in teaching and research activities in 2000-2003, I wrote and successfully defended a dissertation for a doctor of law under the guidance of the professor of Saint-Petersburg General Prosecution Institute V.I. Rokhlin. I am proud that I am a professor at universities famous in the Russian Federation – Tyumen State Univer- sity, Novosibirsk State Technical University, Tyumen State Academy of the World Economics, Administration and Law, Tyumen Institute of Further Training of the Ministry of Internal Affairs of the Russian Federation. 7 doctoral candidates wrote and defended candidate dissertations under my guidance. In 2013, I was invited to read lectures to judges and assistant judges of arbitration courts of the Russian Federation in the Academy of National Economy and Civil Service under the President of the Russian Federation. Over the years of working and living in the Russian Federation, my contribution to the delivery of justice was appraised – I was awarded with Certificate of Merit of the Chairman of the Supreme Arbitration Court of the Russian Federation and given a title of “Honored worker of the judicial system of the Russian Federation”. Along with that, over 14 years, I haven’t lost connection with the Republic of Kazakhstan, I haven’t forgotten all the good things and I go to Kazakhstan very often. Many times I’ve been invited to the Supreme Court of the Republic of Kazakhstan as an expert for topical issues of judicial practice, and to international conferences to the Constitutional Council of the Republic of Kazakhstan. For a long time I was a member of the united Dissertation Council for degrees of candidate and doctor of law under the University named after D.A. Kunayev. I could see the development of science in Kazakhstan universities monthly. I’m the initiator of international treaties conclusion in educational and research spheres of universities of the Russian Federation with universities of the Republic of Kazakhstan: East-Kazakhstan State University, Kazakh-American Free University, Humanitarian Transport and Law University after D.A. Kunayev. By decisions of Academic Boards of the Republic of Kazakhstan I’ve been given an title of Honored Profes- sor of the East-Kazakhstan Regional University, Kazakh-American Free University, and Humanitarian Transport and Law University after D.A. Kunayev. Over these years, many times communicating with my friends in Kazakhstan (judges, prosecutors, attorneys, teachers, scientists) I saw myself the efficient development of Kazakhstan in all spheres of the state activity. Development can be seen in all spheres of life. Development is monitored in the transport sphere of Kazakhstan: services of “Air Astana” company are preferred by most citizens of the country and foreign guests due to the new aircraft park and high level of service. The railway stock of “Kazakhstan Temir Zholy” company is also comfortable and affordable. All religions and confessions coexist in peace and accord in Kazakhstan. I often go to churches in this state, but I go to mosques as a visitor, where best of attention is given to the parish.

164 People in Kazakhstan have great opportunities in development of entrepreneurship, which is supported by the state. I can see this in development of peasant economy “Kamyshenskoye” which is located in Shemonaikhinsky district, East-Kazakhstan oblast (the director of the economy – V.I. Akulov). The best cattle breeds are reared there, one of the most expensive sunflower sorts is grown, sunflower-seed oil is produced and exported. Not to mention horses and fur farms. There is electricity, water and all conveniences in houses there, the whole social sector is supported by the peasant economy. The authority of the President of the country N.A. Nazarbayev is very high in the Republic. Once, a famous politician in the Russian Federation asked me after my business trip to Kazakhstan about the results of the elections held, if the information of the electoral campaign for the presidential elections corresponds to the facts. I said “yes”, because on the elections day I was at the place of my relatives, and during the breakfast I heard that the whole family had already voted for the new presidential term of Nursul- tan Abishevich. This was explained by my aunt and uncle by the fact that they got high pensions due to the Presidential support of pensioners; and their children told me that they had a stable work and high salary. This allowed them to take mortgage services under affordable rates of interests in “Housing Construction Savings Bank of Kazakhstan” to buy a good apartment, a car, and they also have an opportunity to make savings for a house in the country; and nephews, who study at the university with educational grants, have an opportunity to combine studying in an Kazakhstani university with probation in foreign universities. In summer 2014 at the initiative of the Akim of East-Kazakhstan oblast B.M. Saparbayev, a Forum of fellow-countrymen was held, where I was invited among a number of other guests from the Russian Federation. Representatives of many countries were invited to Ust-Kamenogorsk, those who were born, lived and worked in Kazakhstan, and now they are citizens of Germany, Israel, Czech Republic, USA, Greece, Switzerland. Swallows that fly together to the native land were the symbol of the Forum. We, all guests resembled such swallows, because having achieved success in Kazakhstan, we also managed to win recognition in the states, the citizens of which we are. It’s difficult to surprise me now, but my fellow-countrymen did their best and surprised many of the guests. The hosts of the event gave us an opportunity to go to a kindergarten we had attended. We visited schools, where we had studied. Meetings with teachers and schoolchildren were held there. We were given an opportunity to go to universities, where we had studied or worked, visit staffs we had worked in or we had managed. We even went to churches, mosques, synagogues – depending on a guest’s religion. The excursions held for us were not flaunty. “Poganka”, previously neglected river in Ust-Kamenogorsk, turned into a gorgeous pedestrian parkways with arbors, bridges, fountains and flowerbeds, where people in the city can have a rest. A big waste ground was turned into a wonderful museum – an outdoor park. A Sports Palace in Ust-Kamenogorsk has become the Hockey center of Kazakhstan. Outside the city, in an impressive green zone, sports centers have been built for boxing, volleyball, track and field, swimming. They are built for citizens who want to stay healthy, become professionals in sport, or just support sportsmen at competitions. All guests of the Forum were surprised by the fact that hotels have been built for sports centers (not dormito- ries), for children of Kazakhstan who will live there, develop their sport skills, for future professional sportsmen. Streets, squares and roads speak for the economy in the state. Once we arrived in a regional center at night. In the morning, through the window of relatives’ apartment we saw that a little worn asphalt was taken off by German machinery. In 2 days, new curbs were put and high- quality asphalt was laid there. And I was really surprised to see a lot of flowers in the streets, from spring to late autumn, beautiful ped- estals and monuments of historical personalities of Kazakhstan in a big industrial center with a great number of operating factories and plants. The “real symbols” of Kazakhstan are impressive: herds of horses from the real life but made of stone, bronze, granite and metal and installed in parks and pedestrian zones.

165 I know about the supremacy of law in the Republic of Kazakhstan firsthand. I took part in several annual international conferences in legislative bodies of this state, as well as in university conferences. My relative, a secretary of East-Kazakhstan regional maslikhat (of three convocations) V.I. Akhayev, many times showed the results of the legislative process in the oblast and municipal units to foreign guests, together with whom I visited Kazakhstan. Many projected laws and bylaws were taken by scientists from Russian universities as a memento, as a foreign appendix to a corresponding conference. Speaking about Kazakhstan, it’s impossible to forget about the people there – friendly, open, hospitable and always striving forward. Two values are peculiar for all Kazakhstanis – friendship with Russia and love to the President. I remember the year, when all of my friends in Kazakhstan held it an honor to wear a blue and yellow badge with a portrait of the President and his slogan “Kazakhstan – AHEAD!” Several badges were presented to me and I gave them as souvenirs to my colleagues in the court and at the universities. Soon, I saw those badges on lapels of jackets and dresses. The friends told me: “Tatyana Ivanovna, the slogan inspires for actions, I’ve become more active with this badge”. I would like to mention the high level of ideological education in the country, purposeful inoculation of love to the motherland, history, pride for achieved victories of the young state to each citizen of the country. All of us, participants of the international research conference held at the initiative of the Constitutional Council of the Republic of Kazakhstan, were pleasantly surprised with a concert dedicated to the Constitution Day, where performers at the ages from 5 years – singer, 12 years – musicians, 20 years – dancers, 30 years – readers, chanted abut development and prosperity of their motherland, wished health to the President and friendship to our nations, against the background of a bug screen showing photographs of the President of the country N.A. Nazarbayev with the people, world and country. This was not a window dressing, this was written all over the faces of participants of this celebration of the country, so that they brought tears to the eyes of many people seating in the hall. Any invitation to such important events in the state is a high responsibility. And you start thinking, what you have done for development of friendship between our states. It turns out that a lot. These are bilateral agreements of universities on cooperation in educational and scientific sphere, scientific conferences together with colleagues from the friendly state, students educated by you, who are the “golden reserve” of workers of the law-enforcement bodies. Their number includes: Savicheva Yuliya Anatolyevna – graduate of the East-Kazakhstan State University, currently the director of two hydroelectric power stations in the East-Kazakhstan oblast; Pichugin Konstantin Mikhailovich - graduate of the East-Kazakhstan State University, currently the director of the prosecution administration of the East-Kazakhstan oblast; Belyayev Aleksey Alexandrovich - graduate of the East-Kazakhstan State University, currently the prosecutor of Zyryanovsk city; Sarsenov Aidar Bolatbekovich - graduate of the East-Kazakhstan State University, currently the head of department of the General prosecutor’s office of the Republic of Kazakhstan; Kolesnikov Evgeny Viktorovich - graduate of the East-Kazakhstan State University, currently the general director of “Kazpravokonsalting” LLC, providing legal assistance in the Republic of Kazakhstan and Russian Federation; Mishakova Nadezhda Valeryevna – the head of the legal administration of land committee of Novosibirsk city hall; Zhukokova Naziya Kazbekovna - graduate of the East-Kazakhstan State University, currently legal counsel and teacher of the East-Kazakhstan State University and my post-graduate student in a Russian university. Generally speaking, high aspirations of Russia and Kazakhstan are so twisted in destinies and hearts of many Russians and Kazakhstanis, that they are the organic whole, increasing vitality and confidence in our common present and future.

166 Tatyana ROZHDESTVENSKAYA – Alexei GUZNOV – Professor of the Department of Financial Director of the Legal Department of the Bank Law of the Moscow State Law University of Russia, Honored Lawyer of the Russian named after O.E. Kutafin, Doctor of Law Federation, Candidate of Legal sciences

MEGA-REGULATOR OF FINANCIAL MARKET: EXPERIENCE OF KAZAKHSTAN AND RUSSIA (COMPARATIVE AND LEGAL ANALYSIS)

n September 1, 2013, the Federal law “On introduction of alterations to separate legislative acts of the Russian Federation due to delegation to the Central Bank of the Russian Federation the authorities of Oregulation, control and supervision in the sphere of financial markets” as of July 23, 2013, No.251-FL entered into force (hereinafter the Law on the unified regulator), which marks establishment of the unified regulator in the Russian Federation at financial markets, vested with functions of regulation and supervision. The idea to establish a unified regulator (or mega-regulator) is not new, it’s almost 30 years old. In establishment of the mega-regulator, a model of integrated (or cross-sectoral) regulation of financial market is realized. What is the reason for the idea of the unified regulator? The core of financial systems of modern states is constituted by the central bank as a body exercising monetary policy, and the ministry of finance as a body responsibly for budgeting policy. And there have been several models of regulation and supervision. The pioneer one is a model, within the framework of which regulation and supervision are executed by several independent bodies (or agencies). Such concept of regulation and supervision was realized, for example, in the USA, Argentina and Brazil.

167 The second model provides for partial sectoral integration: execution of functions of regulation of bank and insurance markets (Canada, Venezuela, etc.), bank and stock markets (Finland, Mexico, etc.), stock and insurance markets (Bulgaria and others). The third model is about unification of functions of the central bank and bank regulation and supervision (Russia before 2013 (Bank of Russia), Ukraine, etc.). The fourth model is about establishment of a unified independent body of financial regulation and supervision (England 1998-2008, Kazakhstan 2004-2011, etc.). The fifth model, “twin pix”, provides for distribution of functions in a line “macro prudential supervision” – “micro prudential supervision” with a particular dominancy of the first body. This model was realized in England after 2008 reform. And finally, the sixth model is establishment of a unified regulator unifying supervision over all sectors and integration of functions on the base of the central bank (Singapore, Kazakhstan, Russia since 2013, etc.) [1, p.52-53]. Of all these models, integrative approach of regulation and supervision at financial markets wasn’t realized only in the first one. The others were its empiric result, one way or another. It would be correct to note, that there were no any extra-ideas behind the origin of integrated supervision models: the concept of integrated supervision was made due to necessity of cheapening of budget costs for functioning of the supervision system. However, later, under the influence of consolidation processes in the financial sector, development of various financial instruments, it found a new life and became popular in the end of the 1990s – beginning of the 2000s. In that time, self-sustaining, sometimes partially independent from the government financial supervision bodies were established in a number of state, which exercised supervision over all basic sectors of the financial market simultaneously. Such bodies were unofficially called mega-regulators, and they appeared in Norway (a pioneer country, 1986), Iceland, Denmark, Sweden, England, Germany, South Korea, Hungary, Ka- zakhstan and in approximately 50 other countries. Did establishment of mega-regulators produce a positive effect? Undoubtedly, there was an effect, and it was connected with the fact, that there were efforts in respect to all financial sectors to develop and start applying unified standards and technologies of regulation and supervision, which limited establishment of the so called regulatory arbitrage (an opportunity to apply different standards to the same segments on the part of different supervision bodies). Ideas about establishment of a mega-regulator in Russia were pronounced long ago – in the end of the 1990s, an issue was discussed regarding unification of bank supervision and supervision over activities of professional participants of securities market. At that time, establishment of a unified regulator of financial market was seen through a way of negotiation of excessive segmentation of the system of regulation and supervision of the financial market, which was already unified to a large extent. It’s worth noting that until recently, regulation and supervision at financial markets in Russia were distributed between several bodies with known independence. Authorities in the sphere of regulation of the financial market were in the hands of the legislator, Government, Ministry of Finance, Federal Service of Financial Markets (FSFM) and Bank of Russia. Supervision powers were focused in the hands of the Bank of Russia (supervision over credit organizations and entities of the national payment system); FSFM (supervision over professional participants of the securities market, insurance companies, partially over activities of nongovernmental pension funds, micro financial organizations and a number of other participants of the financial market). Some powers in the sphere of supervision were also given to services under the jurisdiction of the Ministry of Finance. Supervision over nongovernmental pension funds was performed by the Ministry of Labor and Social Protection. Therefore, the system of regulation and supervision over financial market was too segmental, which often led to mis- alignment of actions, delays in decision making, presence of regulatory arbitrage and many other negative consequences in the sphere of regulation and control at the financial market. In addition, such system didn’t facilitate complex analysis of the financial market stability.

168 A negative consequence of such segmental supervision system is a circumstance that great resources were required for its support – both human and financial. In respect to Russian conditions, financial resources are funds of the federal budget and Central bank of RF. Proposals of the end of the 1990s and beginning of the 2000s were to a large extent based on the idea of separation of bank supervision from the sphere of competency of the Bank of Russia and creation of a mega- regulator on the base of FSFM. This approach wasn’t supported, although its echo can be seen in the Strategy of financial market development in the Russian Federation for 2006-2008 (approved by the decision of the Government of RF as of June 1, 2006, No.793-p)[2]. There are several reasons of the fact that this way of development of the system of regulation and supervision over the financial market. Bank supervision was more efficient than supervision over other participants of the financial market. To a large extent, this was reasoned by the fact that the bank supervision system was developed as part of the system of the Bank of Russia. As a consequence, resources used for exercise of bank supervision were more stable – in the context of staff potential and logistic support (first of all, technologies of reception and processing of reports, etc.)[3]. The system of bank supervision in Russia was more sensitive to the best international practice and managed to implement almost all standards of modern efficient bank supervision. Supervision over other noncredit financial institutes was a follower in this context. These circumstances led to the fact that a decision on establishment of a unified regulator of the financial market of Russia based on the Bank of Russia was made in 2012. In addition, experience of other countries was taken into account (including Republic of Kazakhstan), analysis of which showed that returning mega-regulators in the structure of national banks in a number of countries was of no coincidence. Being a supervision body, the mega-regulator is aimed at prevention of financial crisis through risk limiting. However, the practice showed limitation of prudential measures of supervision character without state support in part of provision of market participants (banks, first of all) with high volumes of liquidity in order to stabilize money flows and recovery of credibility of markets (such limitation was most obvious during the world financial crisis 2008-2009). In this context, opportunities of national banks with unlimited liquidity cushion in the national currency acquire colossal significance for stabilization of the situation. After the decision was made to establish the unified regulator of financial market on the base of the Bank of Russia and work started on a federal law project providing transition to the unified regulator, work on determination of the future unified regulator’s structure was carried out in the Central Bank of the Russian Federation. During this work, special attention was paid to experience of Kazakhstan and Singapore (as was mentioned, these states realized the supervision model, where supervision over financial markets and bank supervision were focused on the base of central banks). Experience of Kazakhstan is the most useful due to the fact, that Russia and Kazakhstan have close legal framework, mentality, single school of law. In this context, employees of the Bank of Russia and National Bank of the Republic of Kazakhstan could speak a common language. In summer 2012, a group of employees of the Bank of Russia came to the National Bank of the Republic of Kazakhstan for experience exchange, under the guidance of Sergey Shvetsov, future director of the department of financial markets of the Bank of Russia. Just like the Bank of Russia in the Russian Federation, the National Bank of RoK is the key body in organization of the financial system of Kazakhstan. Its goals, tasks, functions and powers are determined by the Law of the Republic of Kazakhstan “On the National Bank of the Republic of Kazakhstan” as of March 30, 1995, No.2155 (with alterations and amendments)[4]. In accordance with the article 2 of the mentioned Law, the National Bank of Kazakhstan is a state authority providing development and exercise of monetary policy of the state, functioning of payment systems, currency regulation and control, state regulation, control and supervision over financial market and financial organizations, state regulation of functioning of the regional financial center of Almaty city, facilitating financial system stability and exercising the government statistics.

169 As against the Bank of Russia, the RoK National Bank is under the jurisdiction of the President of Kazakh- stan (Bank of Russia – under the State Duma of the Russian Federation). The main purpose of the National Bank of Kazakhstan is to provide stability of prices in the Republic of Kazakhstan (article 7 of the Law on the NB RoK), while the main purpose of the Bank of Russia is to provide stability of ruble (article 3 of the Law on the Bank of Russia). Note that in the context of modern theory of monetary government, stability of prices, but not an exchange rate policy should be the priority of central banks’ activities. In the structure of the National Bank of the Republic of Kazakhstan, two agencies outstand: the Com- mittee for control and supervision over the financial market and financial organizations and Committee for protection of rights of consumers of financial services. Unlike Russia, where supervision and control powers in the sphere of financial markets (except for bank supervision) were focused on the level of the Federal service for financial markets and were delegated to the Bank of Russia only due to establishment of the unified regulator, the mega-regulator in Kazakhstan was composed on the base of the NB RoK. In the end of the 1990s – beginning of the 2000s, in several years, the National Bank of Kazakhstan received functions and powers of the Department of insurance supervision of the Ministry of Finance of the Republic of Kazakhstan for supervision of the insurance market (1998), National Commission of the Republic Kazakhstan foe securities (regulation of the securities market) (2001), Committee for regulation of activities of pension savings funds of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan (regulation of activities of the pension funds) (2002). In 2003, a decision was made to create an independent supervision body; and on January 1, 2004, the Agency of the Republic of Kazakhstan for regulation and supervision over the financial market and financial organizations started functioning (hereinafter – Agency), for which the following purposes and objectives were legislatively reserved: 1) provision of financial stability of the financial market and financial organization and support of credibility of the financial system as a whole; 2) provision of proper protection of interests of financial services consumers; 3) creation of equal conditions for activities of financial organizations aimed at support of fair competition at the financial market; 4) establishment of standards of activities of financial organizations, creations of impetuses for improvement of corporate administration of financial organizations; 5) monitoring of the financial market and financial organizations in order to preserve stability of the financial system; 6) concentration of supervision resources in spheres of the financial market ,which are subject to risk, to support financial stability; 7) stimulation of introduction of modern technologies, provision of fullness and accessibility of information for consumers regarding activities of financial organizations and financial services provided by them. However, this Agency was not independent to the full from the National Bank of the Republic of Kazakh- stan: the latter in fact provided financing of the Agency activity. After the crisis of 2008-2009, in Kazakhstan they again turned to the idea of the unified supervision body on the base of the National Bank of RoK. By the Decree of the President of the Republic of Kazakhstan as of April 12, 2011, No.25, functions and powers of the Agency were delegated to the National Bank of the Republic of Kazakh- stan; and by the Decree as of April 18, 2001, No.61, a Committee for control and supervision over the financial market and financial organizations of the National Bank of the Republic of Kazakhstan (hereinafter – KFS). The provision on the KFS was approved by the Board of Directors of the National Bank of the Republic of Kazakhstan on March 4, 2013, No.3164[5]. In accordance with this provision, the Committee for control and supervision of the financial market and financial organizations of the National Bank of the Republic of Ka-

170 zakhstan is the agency of the National Bank of the Republic of Kazakhstan, exercising control and supervision over the financial market and financial organizations within its competence (p.1). As is determined by the provision, the KFS, within the competence of the National Bank, in cases provided by the legislative acts of the Republic of Kazakhstan, exercises main functions for state control and supervision over bank, insurance activities, activities of pension savings funds, investment funds, entities of the securities market and credit bureaus. Being an agency of the NB RK, the Committee has some independence (although quite symbolic) from the NB RK. In particular, the Chairman of the Committee is assigned to a position and displaced by the Chairman of the National Bank in coordination with the President of the Republic of Kazakhstan or, by his order, with the Head of the Presidential Administration of the Republic of Kazakhstan. The Committee for Protection of Rights of Consumers of Financial Services (CPRCFS) was also formed on March 1, 2013, in accordance with the Decree of the President of the Republic of Kazakhstan as of December 29, 2012, No.458 “On some issues of the National Bank of the Republic of Kazakhstan”. The CPRCFS was established in order to strengthen existing protection system, to introduce preventive measures for protection of the rights of financial services consumers, and to increase financial awareness of the population. Currently, the CPRCFS includes 2 structural subdivisions: Department for consumer rights (including administration for consumer rights and Administration for financial awareness) and independent Legal administration. In accordance with the Provision on the Committee for Protection of Rights of Consumers of Financial Services of the National Bank of the Republic of Kazakhstan (approved by the decree of the Board of Directors of the Nation- al Bank on February 7, 2013, No.27), the main task of the CPRCFS is to provide proper protection of rights and legal interests of financial services consumers. In this connection, the CPRCFS executes the following main functions: 1) considers applications of individuals and legal entities regarding provision of financial services; 2) renders legal assistance to financial services consumers regarding protection of their rights; 3) detects violations of rights of financial services consumers; 4) keeps a register of applications of financial services consumers and results of their consideration, analyses corresponding statistical information; 5) keeps a record of violations of legislative requirements for protection of rights of financial services consumers by financial organizations and securities issuers; 6) requests and receives from individuals and legal entities information necessary for protection of rights of financial services consumers; 7) exercises control and inspections of activities of financial market entities regarding observance of legislatively established requirements for provision of financial services and disclosure of information of financial services; 8) exercises supervision over quality of services provided by financial market entities and information on financial services distributed by them; 9) develops standards of financial services provision and distribution of information on financial services by financial organizations; 10) holds activities for increase of financial services quality; etc. Therefore, in Kazakhstan, issues of supervision over financial market entities and issuers were concentrated within one structure – in the Committee for control and supervision over the financial market and financial organizations. Protection of rights of financial services consumers was structured for all types of services, exercise of such protection was assigned to the Committee for protection for protection of rights of financial services consumers. At the present time, the functions of the National Bank of Kazakhstan still include exercise of monetary policy, organization of money flow, currency regulation and exchange rate control, development of payment systems, organization of fight against laundering of income from criminal activities and terrorism financing. So, a model of the unified regulator is realized in Kazakhstan on the base of the central bank with full sectoral and functional unification.

171 Having investigated the experience of the Republic of Kazakhstan in organization of regulation and supervision over the financial market, and having borrowed many things, the Bank of Russia has a little different way. In the structure of the Bank of Russia, 6 equal directions of activity are formed: 1) exercise of monetary policy; 2) organization of money flow; 3) bank regulation and bank supervision (including issues of licensing of credit organizations’ activities); 4) provision of stability and development of the national payment system of Russia (including development of the payment system of the Bank of Russia and supervision over private payment systems); 5) supervision and control over noncredit financial organizations, protection of rights of financial services consumers (except for bank services); 6) organization of fight against laundering of income from criminal activities and terrorism financing; currency regulation and exchange rate control. As against the National Bank of Kazakhstan, these directions are not structured to separate agencies, but are realized through separate departments which are subordinate to the first deputies of the Chairman of the Bank of Russia. It can be stated that bank supervision and bank regulation are an independent direction of activities of the Bank of Russia, existing in a line with the direction of regulation and supervision over noncredit financial organizations. Regulation and supervision over noncredit financial organizations were finally structured on April 3, 2014, when previously existing Service of the Bank of Russia for financial markets was annihilated, and 9 structural subdivisions were formed on its base (with regional representation), which include: - Department of financial markets development; - Department of access to the financial market; - Department of the insurance market; - Department of collective investments and confidential management; - Department of the securities market and goods market; - Central Administration of microfinancing market and methodology of financial accessibility; -Department of collection and processing of accounting of noncredit financial organizations; - Central administration of prevention of abusive behavior at the open market; - Service of the Bank of Russia for protection of rights of consumers of financial services and minority shareholders. Along with that, as against Kazakhstan, legal support and inspection activity were centralized in the Legal department and Main inspection of the Bank of Russia. Therefore, in spite of belonging of mega-regulators of the republic of Kazakhstan and Russian Federation to the same model, it’s worth noting that organization of their activities is not identical. However, purposes of activities, tasks and functions of the unified regulators of the financial market in Russia and Kazakhstan are close, and to a large extent this will determine the similarity of the development paradigm of mega-regulators in Russia and Kazakhstan.

REFERENCES: 1. Moiseev S.R. Mega-regulator / Terminology – essential aspects // Money and credit, 2013, No.7. 2. “Garant” ILS 3. Strictly speaking, absence of necessary resources became the cause of establishment of the unified regulator. In recent years, FSFM started exercising powers on regulation and supervision over insurance companies, nongovernmental pension funds, microfinancial organizations, credit cooperatives, etc. By 2012, it was clear that granting resources, which were on hand of the FSFM, it’s almost impossible to exercise supervision over all entities of financial markets (even excluding credit organizations). 4. http://www.nationalbank.kz/?docid=41 5. http://www.afn.kz/?docid=1365

172 Mukhammadiso RAVSHANZODA – Associate Professor of the Department of Law and Public Service of the Institute of Public Administration under the President of the Republic of Tajikistan

DIRECT (IMMEDIATE) ACTION AS THE MAIN ELEMENT IN THE MECHANISM OF ACTION OF THE CONSTITUTION

Constitution of a modern democratic state, including the one of the Republic of Kazakhstan and Repub- lic of Tajikistan, must have one important feature: it must be the act of direct application. In scientific Aliterature it is generally accepted that direct application of the constitution is one of the features of the constitution as a special juridical document [1, p.64-70]. This means that if any provision of the constitution is not of clearly expressed reference or blanket character, it must be applied by all subjects of the constitutional law directly, i.e. independently from presence or absence of any legislator acts or bylaws specifying this provision. In particular, the courts may make reference to the constitutional provisions for justification of their decisions. Practical meaning of direct application of the constitution lies in the fact that on the base of the constitutional provisions, a citizens gets his rights, for protection of which he may appeal to the court making a reference to the article of the constitution, and the court doesn’t have a right to deny the application making a reference to the fact that there are no laws or bylaws specifying this provision. Therefore, direct application of the constitution means that state authorities must consider the constitutional provisions as direct regulatory base of law enforcement and use them for settlement of specific cases [2, p.49-54]. From this point of view, the Constitution of the Republic of Tajikistan as of November 6, 1994, is a regulatory legal act of direct application, as is the Constitution of the Russian Federation adopted in December 1993, and the Constitution of the Republic of Kazakhstan adopted on August 30, 1995. The principle of direct application of the constitution is guaranteed in the part 2 of the article 4 of the RK Constitution, part 1 of the article 10 of the Constitution of the Republic of Tajikistan, p.1 of the article 15 of the RF Constitution. In particular, they state that the constitution is of supreme legal force, direct application and is applied within the whole territory of these states. In previous constitutions of RT, RoK and RF, there were no such statements. This means that new constitutions of RT, RK and RF are not a solemn declaration, but fully efficient regulatory legal act, provisions of which can be used for settlement of particular disputes, consideration of claims and applications from citizens, i.e. solution of cases.

173 It must be emphasized that direct application of the Constitution is an important achievement of democratic republics, in particular, Kazakhstan, Russia and Tajikistan, as important as, for example, private property or freedom of mass information. Along with that, it should be understood that direct application of the Constitution is not just a change of the principle of action of the Fundamental Law through the legislator’s signature, but a result of deep social and economical reformations, establishment of civil society. In the article 14 of the RT Constitution and in the article 18 of the RF Constitution it is stated that rights and freedoms of man and citizens are directly applicable. They determine the meaning, content and application of laws, activity of legislative and executive power, local government and are guaranteed by justice. At the same time, direct application of the Constitution, obliging the state authorities to use its provisions as direct regulatory framework of law enforcement, relates not only to rights of citizens, but it also means that the state gets an opportunity to undertake enforcement measures on the base of the Constitutional provisions and within enforcement of the law to restore constitutional order, preserve its entirety, eliminate illegal paramilitary groups, etc. It should be emphasized here that part 1 of the article 4 of the RK Constitution states that the law is directly applicable, which is wider than direct application stated in articles 14 and 18 of the constitutions of RT and RF. In scientific literature, it is noted (A.B.Vengerov, R.H. Zoyirov, etc)[3, p.4-9] that a state authority using the feature of direct application of a constitutional provision may launch on its base a corresponding compulsory mechanism, including a “forceful” one, which must have a corresponding constitutional guarantee of human rights as the highest value among the protected objects. Analysis of scientific literature about direct application of the Constitution and statement in the Consti- tution that it is an act of direct application, gives reason to make two main conclusions: 1. All provisions of the Constitution must be considered as directly applicable provisions: indirect application of a constitutional provision must be considered as exception and specially mentioned in the Constitu- tion itself. This is seen in more than 10 articles of the constitutions in force in the RK, RT and RF. 2. Direct application of the Constitution doesn’t mean that provisions specifying it shouldn’t be adopted as well as procedural acts necessary for efficient implementation of its provisions. On the contrary, all this is assumed by the nature of the Fundamental law. A different matter, that absence of such acts mustn’t be recognized as a reason for non-application of the constitutional provisions[4, p.8]. In the mentioned context, the Constitution of RK is more advanced in terms or direct application not only of the constitutional provisions, but also of provisions of the international law recognized by the Republic. For example, part 3 of the article 4 of the Constitution of the Republic of Kazakhstan states that “Interna- tional treaties ratified by the Republic prevail over its laws and are directly applicable, except for cases when the international treaty provides for issuing a law for its application”[5]. An important issue is about provision of direct application of the Constitution, which is determined as one of the main tasks of the justice bodies. The Constitutional Courts in the Russian Federation (more actively), in RK and RT (less actively) started providing direct application of the constitutional provisions in the sphere of rights and freedoms of citizens. On the other side, Plenary sessions of Supreme Courts of RF, RK and RT, in a number of decrees, gave an explanation based on the priority of the constitutional provisions and oriented courts to application of the Constitutions of RF, RK and RT as directly applicable acts in consideration of civil and criminal cases. Thus, on October 31, 1995, the Plenary session of the Supreme Court adopted a Decree “On some issues of application of the Constitution of the Russian Federation by courts in administration of justice”, where it was emphasized that in consideration of cases, the courts should assess the content of a law or other regulatory legal act governing legal relationship considered by the court, and apply the Constitution of the Russian Federation as a directly applied act in all necessary cases. Relevant judicial acts, in a little different interpretation, were adopted by the Supreme Courts in Kazakhstan and Tajikistan.

174 In particular, it is emphasized in scientific literature, and the same is confirmed by judicial practice, there are, although few, cases of direct application of the constitutional provisions in regulation of social relations. Judicial practice of recent years also proves that today there are three basic forms, where state authorities, including justice bodies, may directly apply the Constitution: a) independently from other regulatory acts, with a reference to the articles of the Constitution; b) together with other regulations of other regulatory legal acts; c) for reasoning of their decisions, sentences, when an important social sound must be added, and when the purpose of their particular law-enforcement act should be explained [6, p.99-108].

REFERENCES: 1.. Samoshchenko I.S. Direct application of the Constitution // Soviet state and law. 1981. No.3. P.32-34; Luchin V.O. The Constitution of the Russian Federation. Problems of realization. – M.: UNITY-DANA, 2002. 2.. Constitutional law of foreign countries. Textbook. Edited by Luchin V.O. and others. M.: Law and right, 2001. 3. Vengerov A.B. Theory of state and law. Textbook. M., 2004, the chapter about operation of the law; Zoyirov R.H. About direct application of the Constitution // 15th anniversary of the RT Constitution. Collection of scientific articles. Dushanbe, 2009. 4. Part 3 of article 4 of the Constitution of the Republic of Kazakhstan as of August 30, 1995. 5.. Luchin V.O. The Constitution of the Russian Federation. Problems of realization. – M.: UNITY-DANA, 2002.

175 Marat SALIKOV – The First Vice-Rector of the Ural State Law University, Head of the Department of Constitutional Law, Honored Lawyer of the Russian Federation, Honored Worker of Higher Professional Education of the Russian Federation, Doctor of Law, professor

CONSTITUTIONAL AND LEGAL BASIS OF POLITICAL PARTIES: THE EXPERIENCE OF THE POST-SOVIET RUSSIA AND KAZAKHSTAN

or almost 70 years the party system of the USSR, which included Russia and Kazakhstan as union republics, was in fact a single party – CPSU. The regime couldn’t allow existing of any other political party. The Fknown article 6 of the USSR Constitution stated the party’s position as the core of the political system, governing and directing force of the Soviet society. The end of the 1980s and beginning of the 1990s were marked by gross disturbances, which affected this sphere of relationship. One of the challenges of that time was an exigency in political pluralism, which obviously assumed revival of the multi-party system. There is an interesting historical fact – limited by quotas government at the Congress of people’s deputies of the USSR of major social organizations. The Congress involved 2250 deputies, one third of them were supposed to be representatives of social organizations. However, as was shown by further developments, by introduction of such “quasi-multi-party system”, the central authority didn’t manage to avoid the necessity to take more revolutionary steps. Under the pressure of growing requirements, on March 14, 1990, alterations were introduced to the Soviet Constitution, legalizing the multi-party system. On June 16, 1990, and on April 24, 1990, such alterations were introduced into the constitutions of Russia and Kazakhstan. At the same time, the definition in the article 6 of the RSRSR Constitution is more correct, because as against of the Soviet Constitution, it didn’t mention any precise parties, whole the Fundamental law included stating of the CPSU.

176 Attention should be paid to two articles of the Constitution of the Kazakh SSR as changed by the Law as of April 24, 1990. The article 6 “Communist party of Kazakhstan, trade union, youth and mass movements in the Kazakh SSR by representative elected to the Soviet of people’s deputies, as well as in other forms, participate in elaboration of the policy of the republic, in administration of state and public affairs”. And article 7: “All political, public organizations and mass movements, exercising functions provided by their programs and charters, act within the Constitution of the Kazakh SSR and laws of the Kazakh SSR”. Later, the personalia listed in the article 6 were substituted with “public associations”, and a prohibition was introduced for establishment and activity of parties, organizations and movements aimed at forced change of the constitutional system and integrity of the republic as a sovereign socialist state, destruction of its security, incitement of social, ethnic and religious hatred”. Turning to 1990-1991, let’s recall three Decrees of the President of the Kazakh SSR: as of August 22, 1991 “On termination of organizational structures of political parties, other public associations and mass public movements in the bodies of prosecution, national security, internal affairs, justice, state arbitrage, courts and customs of the Kazakh SSR”, as of August 25, 1991 “On the property of CPCU within the territory of the Kazakh SSR”, and as of August 28, 1991 “On inadmissibility of combination of executive positions in the state authorities and other public political associations”. Strictly speaking, March 1990 may be considered as a departure point for the start of sovereign party construction in former union republics of a unified federative state. Take the experience of constitutional legal regulation of the status of political parties in Russia in Ka- zakhstan, each of them is interesting and instructive in its own way, has its positive sides and directions for further improvement. In 1990, establishment of political parties started in Russia: Democratic, Republican, Liberal democratic, etc. [1, p.57]. The only legislator act of the union level guaranteeing the opportunity of establishment and functioning of political parties was the USSR Law as of October 9, 1990 “On public associations”. The Constitution of the Russian Federation in force in 1993 didn’t use the term “political party”. The article 13 recognizes ideological and political diversity, multi-party system, prohibition of establishment of a ideology as official or compulsory, as well as establishment and activity of public associations aimed at forced change of the constitutional system and violation of integrity of the Russian Federation, destruction of the national security, establishment of paramilitary groups, incitement of social, race, ethnic and religious hatred. In addition, the principle of equal position of public associations under the law is guaranteed. The article 30 of the Constitution guarantees the light of everyone for association, freedom of activity of any public associations, as well as prohibition of compulsory entry to any associations or compulsory membership there. On May 19, 1995, a Federal law “On public associations” was adopted; on July 19, 1998, alterations were introduced to it, introducing a term “political public association” which was removed from the law in 2002. This law regulated activity of all public associations, including political parties before adoption of relevant independent laws. The 1990s are marked with rapid growth of party construction. For example, in 1995, the right for participation in elections for deputies of the State Duma belonged to 258 associations, 111 of them tried to exercise this right, 43 of them were registered, and only 4 of them went through to the Duma, i.e. overcame the 5% barrier established at that time (“Our home – Russia”, CPRF, LDPR, “Yabloko”)[2, p.135-136]. The Federal law “On political parties” was adopted on July 11, 2001, and the Federal law “On guarantees of equality of parliamentary parties in coverage of their activities by the state public TV-channels and radio-channels” was adopted on May 12, 2009. As is known, regulation of this sphere was not stable. The legislation has suffered permanent changes, which directly affects exercise of the constitutional right for association by citizens, and the opportunity of institutionalization of political opposition [3] without its marginalization fraught with powerful social disturbances like those between parliamentary and presidential elections in 2011 and 2012.

177 In April 2012, after parliamentary and presidential elections, amendments to the Federal law “On political parties” initiated by the head of the state were adopted [4]. The most important amendment refers to the size of parties. According to the law, “a political party shall include no less than five hundred members of the political party considering requirements provided by the paragraph 6 of the article 23 of this Federal law. The charter of the political party may establish requirements to minimum number of members of the political party in its regional offices”. This novelty caused the sharpest disputes among political forces and scientific community. Requirements regarding the size of political parties have always been an object of close attention of the power and have been in fact one of the instruments regulating the number of parties in one or another period of historical development. Dynamics of alteration of this requirement over the past 20 years allows for the conclusion about the absence of stability in this sphere. At least 5000 people were needed to establish a party according to the Law of the USSR “On public associations”. In the first edition of the Federal law “On political parties” it was 10 000 people. Amendments to this law introduced on December 20, 2004, established requirement about 50 000 people and at least 500 members of the party in each of the half of regional offices, and in other half – 250 members in each. On April 28, 2009, alterations were introduced again, establishing periods, during which the total size of parties and size of regional offices were gradually reduced. From January 1, 2012, these requirements were 40 000 members for the whole party, and 400 members in each of the half of regional offices, and 150 members in other offices. The established sharp reduction of the requirements to the size of political parties raises a lot of questions. Of course, under conditions of still weak party system, presence of severe requirements, including large size, was an obstacle to establishment of new parties. However, is it possible to talk seriously about a federal political party with the number of members amounting to 500? It appears that such party cannot represent a real force not only on the national level, but even on the regional and, in most cases, municipal level. Estab- lishment of a great number of small political parties will wash out the political landscape and disorient the voter. In this connection, proposal of S.M. Mironov was quite rational, according to which a party is allowed to participate in regional elections only in case of success on the local level (i.e. presence of their deputies in representative local government body), and then success in the regional elections opens the door to participation in federal elections. In spite of the fact that this proposal is not included in the law, nevertheless, this is likely to happen soon in practice. It will be difficult for young small parties to go through to the State Duma, but on regional and municipal levels they could give the longstanding political parties a good run for their money [5]. For example, on September 14, 2014, on the single voting day, over 6000 elections of different levels were held across the country. 63 political parties were allowed to participate in the elections. Avalanche-like reduction of the size necessary for establishment of a federal political party highlights the problem of prohibition of regional political parties, for territorial entities of the RF must not have any regional political organizations, because the right of regions for specificity and opportunity to defend this specificity in the regional parliament are denied. In this connection, interest is generated by the decision of the Constitutional Court on the case “on the Baltic republican party”. To be more accurate, facts of the Court reasoning the constitutionality of provisions of the Federal law “On political parties” establishing this prohibition. The thing is that this reasoning was built on hypothetical assumptions, which, according to the Court, will certainly take place in case of recognition of the disputed provisions as constitutional. Thus, the decision states: “Under modern conditions, when the Russian society hasn’t acquired a firm experience of democratic existence, assuming that there are serious challenges on the part of separatist, nationalist, terroristic forces, establishment of regional political parties could lead to violation f the national integrity and unity of the system of state authority as the base of the

178 federative system of Russia, because they would strive to defend their own, strictly regional and local interests”[6]. It’s worth noting that this was supposed to be not about establishment of regional political parties, because previously they had existed (without leading to violation of the national integrity and unity of the system of state authority by defending regional and local interests), but about preservation of them in the political system of the country. Further, the decision states: “Establishment of regional and local political parties in each territorial entity of the Russian Federation could lead – taking into account the complex character of the Russian Federa- tion – to establishment of many regional party systems, which is fraught with turning of the forming party system as part of the political system into a factor of weakening of the developing Russian democracy, the rule of people, federalism, integrity of the country, and therefore weakening of the constitutional guarantees of rights and freedoms, including the right of uniting into political parties, equality of citizens’ rights for establishment and participation in activities of political parties across the whole territory of the Russian Federation”[7]. As it appears to be, the federation is the form of the state structure, which assumes a possibility and even a necessity of functioning of political parties within separate territorial entities, because they could reflect the needs of regions. Of course, regional offices of federal political parties also must work in territorial entities of the Federation and compete with all political forces (including regional political component) in a fairs and law-governed competition. In federative states, presence of regional parties is a common occurrence [8, p.85]. For example, there are over 700 political parties functioning in Austria (for comparison, there are only 7 in Russia), but the overwhelming majority of them are of regional or local status [9, p.42]. We suppose that no real danger is constituted by existence of regional political parties. The Constitutional Court noted in its decree that “the mentioned limitation is of temporary character and must be lifted with disruption of circumstances that produced it”. The fact of recognition of this limitation as temporary is encouraging, although a question appears regarding “circumstances that produced it”. In fact, the circumstances that produced the limitations were corresponding amendments to the Federal law “On political parties” being a result of construction of the vertical power structure held at that time. In this connection, a question arises, who and when will determine the fact of “disruption of circumstances”? It appears that now, when any group of 500 people has a right to establish a federal political party (others than federal aren’t still provided by the law), the prohibition of regional parties looks like anachronism. The Constitutional legal framework of political parties distinguishes itself for its stability in the Republic of Kazakhstan. I suppose, the only exception here is the period of 1993-1995, when the first Constitution of sovereign Kazakhstan was replaced by the Constitution of the Republic of Kazakhstan adopted at the republican referendum on August 30, 1995, which has been successful for over 20 years. The Constitution of 1993 included a special article 56 dedicated to parties: “Parties facilitate formation and expression of political will of citizens. The procedure of establishment, termination and functioning of political parties is established by the law”. There is no such article in the Constitution of 1995 (however, as well as the chapter 10 “Public associations” containing provisions oriented at all public and personal associations – political parties, trade unions and religious associations). In development of the Constitution of 1995, another approach was chosen: instead of institutional rule- making (personal chapters for parties, trade unions and religious associations), principal origins of political parties were expressed through regulations of “General provisions” (Section I) and constitutional status of man and citizen (Section II). Thus, article 5, along with proclamation of ideological and political diversity, introduces prohibitions on establishment of political parties’ organizations in the state authorities, and a number of other traditional prohibitions regarding purposes and actions of all public associations: “Activities

179 of political parties and trade unions of other states, parties on the religious basis are prohibited in the Repub- lic, as well as financing of political parties and trade unions from foreign legal entities and citizens, foreign states and international organizations”. The article 23 of the Constitution, regulating the right of citizens of the Republic of Kazakhstan for association, establishes that activities of public associations are regulated by the law. Military servicemen, workers of national security bodies, law enforcement bodies and judges mustn’t be members of parties, trade unions or support any political parties. Briefly about development of Kazakhstani special legislation Before 1996, organization and activities of political parties in Kazakhstan were regulated by the Law of the Kazakh SSR as of June 27, 1991, “On public associations in the Kazakh SSR”, then – by the Law of RK as of May 31, 1996, “On public associations”. The first special Law of RK “On political parties” was adopted on July 2, 1996. It was replaced by the same- named Law of RK as of July 15, 2002, which is still in force with alterations and amendments introduced in 2005, 2007 and 2009. The most significant alterations are the following: Firstly, due to cancellation of previously provided in the article 5 of the Constitution prohibition on financing of public associations by the state by the Law as of May 21, 2007, on introduction of alterations and amendments to the Constitution, state financing of political parties successful following the results of deputy’s seats was introduced. After introduction of alterations to the Law “On political parties” (new article 18-1 “Budget funds allocated to political parties”) by the Decree of the Central Election Commission of RK as of September 3, 2009, “Rules of political parties financing” were approved. Budget funds are annually allocated to political parties represented in the Mazhilis of the RK Parliament following the results of election of Mazhilis deputies according to party lists. The amount of budget funds allocated for financing of political parties’ activities is determined in the law on the republican budget for a relevant year considering 3% from the minimum wage for each vote given in elections for political parties represented in the Mazhilis of the Parliament following the results of the latest elections. Decision making on disposal of the funds allocated from the republican budget is performed by the political party according to the procedure established by its charter. Funds received from the republican budget are used by political parties for realization of charter purposes, tasks and rights of the political party. Budget funds are not used by political parties for election campaigns, including payment for appearance in mass media, conduct of public election events, issue of agitation materials, transport costs of candidates, for business activities realization and charity, they are not distributed between members of the party. Upon detection of violations of budget and other legislation is disposal of budget funds by political parties, allocation of funds from the republican budget for financing of the political party in frozen in the current year. If the political party disposed funds for purposes not provided by the Rules, these funds are to be returned to the republican budget. Secondly, certain liberalization of requirements to claimants for the status of political party was held. In 1996, for state registration of political parties, they had to include no less than 3000 members representing more than the half of oblasts of the Republic of Kazakhstan. In 2008, these requirements were sharply increased: a party had to include no less than 50 000 members of the party representing structural subdivisions (branches and offices) of the party in all oblasts, city of republican status and in the capital of no less than 700 members of the party in each of them. In 2009, both numbers were reduced to 40 000 and 600 members of the party, respectively. Thirdly, material and procedural aspects were specified for establishment of a political party, its state registration and reorganization. The term of the state registration may discontinue on the grounds provided

180 by the legislation on state registration of legal entities. Upon elimination of the grounds for the pause in the state registration term, the registering body makes a decision on the state registration or denial in the state registration of a political party. Now the number of detected violations in the lists of members of a apolitical party, not influencing on the total number of party members, provided by paragraph 6 of the article 10 of the Law (i.e. 40 000 and 600 party members) cannot be reason for denial in the state registration of a political party. The Law lists forms of possible reorganization – fusion, incorporation, division, detachment, reformation. In case of division of a political party or detachment from a political party, the total number of members of the reorganized political party and newly formed political parties must comply with the requirements of the Law (i.e. 40 000 and 600 members of the party). It shouldn’t be forgotten that the constitutional reform of 2007 introduced a rule on election of the Mazhilis of the RK Parliament according to proportional election system (98 deputies – on parties’ lists), and plus 9 deputies are elected by the Assembly of People of Kazakhstan. Together, these amendments strengthen legal position of political parties, establish additional legal guarantees and material impetuses for increase of their activity and high-quality realization of functions peculiar to these political institutes in the democratic open society. In respect to the theme of this review, let’s recall that in 2002, at the application of the President of the Republic, the Law “On political parties” adopted by the Parliament was considered by the Constitutional Coun- cil of RoK and recognized as conforming to the Constitution. We will give excerpts from the decision of the Constitutional Council of RK as of July 11, 2002, No.6 “On inspection of conformance to the Constitution of the Republic of Kazakhstan of the Law On political parties” regarding the issue of the highest interest for us. Analyzing the provision of paragraph 6 of the article 10 of the Law “On political parties”, the Constitu- tional Court paid attention that it establishes a quantitative criterion as a condition of the state registration of a political party. “This registration and other criteria for establishment and functioning of political parties in Kazakhstan are not subject to constitutional regulation. Issues regarding them, as with establishment of fundamental principles and provisions of legal standing, individuals and legal entities, are taken to the level of law-governing by paragraph 3 of the article 61 of the Constitution”. According to the decision, “in legislation about parties in other countries presence of such criteria is determined by the fact that states, providing a right to political parties to participate in the election process and for proportional representation in parliaments, simultaneously establish necessary requirements, which would indicate great support of the party from the society, and at the same time allowed restraining socially unreasoned fragmentation of the party system”. Requirements of paragraph 6 of the article 10 and paragraphs 1 and 3 of the article 6 of the Law “On political parties” are common for all established (reregistered) political parties and are equally compulsory for them. Regarding the quantitative criteria of the Law “On political parties”, according to the opinion of the Constitutional Council, conformable determination and establishment of their absolute expressions relate to the competence of the Parliament of the Republic and are within the sphere of its legislative consideration. Along with that, the Council stated the presence of the quantitative criterion for state registration of political parties in the foreign legislation, which exceeds the one provided by paragraph 6 of the article 10 of the Law of RoK “On political parties”. Subparagraph 6) of paragraph 5 of the article 14 of the Law provides for “double in a row non-participation of a political party in elections of deputies of the Mazhilis of the Parliament of the Republic of Kazakhstan” as the ground for elimination of a political party by the court decision. The Constitutional Court didn’t find it contradicting to general provisions and regulations of the Constitution and considers that this provision of the Law “is aimed at creation of guarantees of stability and activity of political parties claiming for expression of their political interests for the society and all layers. Such provisions in the legislation about parties are recognized as protective and stimulating real pluralism in the society”.

181 At the elections held on January 15, 2012, to the Mazhilis of the Parliament, the parties achieved the following results: 5 621 436 people, or 80,99% of people who participated in the elections, voted for the People’s democratic party “NurOtan”; 57 732 people, or 0,83% - for the Party of patriots of Kazakhstan; 518 405 people, or 7,47% - for the Democratic party of Kazakhstan “Ak Zhol”; 116 534 people, or 1,68% - for the National social democratic party of Kazakhstan “Azat”; 498 788 people, or 7,19% of voters – for the Communist people’s party of Kazakhstan; 82 623 people, or 1,19% - for Kazakhstan’s social democratic party “Auyl”; 45 702 people, or 0,66% - for the Democratic party “Adilet”. Following the results of the voting on the party lists, “NurOtan” party received 83 seats, “Ak Zhol” – 8, CPPK – 7 seats. The number of voters involved amounted to 7 018 927 people, or 75,4% of those included in the register of electors. The Mazhilis was formed of three parties, with dominating position of “NurOtan” PDP. Currently, full-weight fractions of the three political parties are functioning in the lower chamber of the RK Parliament [10]. As it can be seen, over 20 years of the Constitution of RK of 1995, current legislation has been developing within the established limits, without dramatic changes of parameters for political parties, preserving traditional attitude toward them as to a serious and responsible institute of the political system, carefully, step by step strengthening and complementing real opportunities of parties. Experience of constitutional legal regulation of organization and operation of political parties in Rus- sia and Kazakhstan is instructive an interesting. It requires further detailed investigation in the context of concepts of direct democracy, people’s representation, citizens’ rights and freedoms, their electoral behavior in order to determine the strategy and tactics for further transformation of the society and state of both countries.

REFERENCES: 1. Avakyan S.A. Constitutional legal status of political parties in Russia. M., 2011. 2.. Lapayeva V.V. Law and multi-party system in modern Russia. M., 1999, p.26; State Duma: Encyclopedia. 2 volumes. V.2. 3..About political opposition, see: Vasiyeva S.V. Constitutional legal status of the political opposition. M., 2010. 4..Federal law “On introduction of alterations and amendments to the Federal law ‘On political parties” as of April 2, 2012, No.28-ФЗ // Official gazette of RF. 2012. No.15. P.1721. 5.. About other novelties introduced to the Federal law “On political parties”, see: Salikov M.S. Party system of Russia: dynamics of constitutional legal regulation // Russian juridical magazine. 2012. No.4. 6. Decree of the Constitutional Court of RF as of 01.02.05 on a case of inspection of constitutionality of subparagraphs 2 and 3 of paragraph 2, article 3, and paragraph 6 of the article 47 of the Federal law “On political parties” due to the claim of the social political organization “Baltic republican party” // Bulleting of the Consti- tutional Court of RF. 2005, No.1. 7. Decree of the Constitutional Court of RF as of 01.02.05 on a case of inspection of constitutionality of subparagraphs 2 and 3 of paragraph 2, article 3, and paragraph 6 of the article 47 of the Federal law “On political parties” due to the claim of the social political organization “Baltic republican party” // Bulleting of the Consti- tutional Court of RF. 2005, No.1. 8. Yudin Yu.A. Political parties and law in the modern state. M., 1998. 9. Safarov M. Op.cit. 10. www.election.kz

182 Uliana FILATOVA – Associate Professor of the East- Siberian branch of the Russian State University of Justice, Candidate of legal sciences

CONSTITUTIONAL GUARANTEES OF THE RIGHT OF PROPERTY AS THE BASIS OF DEMOCRATIC AND LEGAL STATE - OF THE REPUBLIC OF KAZAKHSTAN: AN ANALYSIS OF CERTAIN LIMITATIONS ON THE EXAMPLE OF THE RIGHT OF COMMON SHARED OWNERSHIP

he Constitution of the Republic of Kazakhstan secures the basic concepts of functioning of the legal, democratic and social state, securing the main guarantee for economic development – the inviolabil- Tity of private property. The Article 26 of the Constitution of the Republic of Kazakhstan provides that citizens of the Republic of Kazakhstan may privately own any legally acquired property. Property, including the right of inheritance, shall be guaranteed by law. No one may be deprived of his property unless otherwise stipulated by a court decision. The Article 39, developing this idea, makes a guarantee that rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary for protection of the constitutional system, protection of the public order, human rights and freedoms, health and morality of the population. The constitutional law includes fundamental principles, which are developed in the sectoral legislation. Limitations of the right of property are provided in p. 6 Article 218 of the Civil Code of the Republic of Kazakh- stan, securing that the non-expedience of division of common property or the appropriation of a share out of

183 it in accordance with the rules outlined in paragraphs 3 - 5 of this Article are obvious, the court shall have the right to adopt the decision to sell the property through a public auction with the subsequent distribution of the received amount between the participants in common property in proportion to their shares. The existence of this principle specifies civil law and order of the Republic of Kazakhstan as a guide to the leadership of modern European civil codifications, such as the German Civil Code, the Swiss Civil Code, and the Austrian Civil Code. However, the invocation of the p.6 Article 218 of the Civil Code raises many questions, including on the subject of non-contradiction to the mentioned Articles of the Constitution of the Republic of Kazakhstan [1]. For a detailed discussion of this problem it is necessary to analyze the nature of relations of the common shared property, foreign practices and systematic interpretation of the legislation of the Republic of Kazakhstan. Legislation of a number of states of the Romano-Germanic legal system is familiar with the sale of the property owned on the right of common shared property through the auction. According to the paragraph 1 of § 749 of the German Civil Code (hereinafter-BGB) [2] each part may at any time stop relations of the shared property. “At any time” means that there is no need to wait for significant reasons and grounds and also despite of the unfavorable time. §§ 752-753 of the BGB regulates the cancelation order. Cancelation of co-ownership occurs by division in kind if the joint object or several objects held jointly are capable of being divided into identical parts corresponding to the shares of the part owners without reducing their cost. In German law the physical indivisibility is distinguished. And it is predetermined by the physical features of things, indivisibility by force of law, as well as economic indivisibility, that is, reducing the cost of property as a result of division. Reducing the cost of the object is defined by the way of diminution from the cost of the undivided object the sum of the shares cost got in the result of division. If in general the object`s cost is more than the sum of its divided parts, consequently, the division will lead to the reducing of the object`s cost and the division will occur through the its sale [3, с. 567]. If the thing is to be divided in kind, the distribution of identical shares between the participants will be made by lots. If the division in kind is cancelled, the cancelation of the co-ownership is carried out through the sale of the common object in accordance with the rules of foreclosure sale, for land property – by forced sale through the auctions and the distribution of the proceeds. If according to the agreement the disposition to a third party between the co-owners is not allowed, the object should be sold to one of the members of community through the auction. Swiss Civil Code (hereinafter-SСС) [4] provides in the Article 650 the right of each co-owner to cancel the relations of shared property. This right may be restricted by the law (for example, the right of shared property on part of the building), by the parties’ agreement or by the duration of the purpose of thing using. The agreement may exclude the right of cancelation for the maximum period of 50 years. With regard to land property this agreement should be registered in land records for providing its action regarding to subsequent proprietors. Cancelation must not be made in an unfavorable time, in other words, in the period when co-owner has a particular interest in the use of a thing using (for example, agricultural harvesting machinery during harvest season). .The Article 651 of SCC provides for the following variants of co-ownership cancelation: physical division of a thing, sale of a thing in ordinary way or through the auction, by dividing the earnings in proportion to shares; transfer of a thing to one or several co-owners. If the parties could not agree on the way of division, it will be chosen by the judge. First of all, the opportunity of physical division of the thing will be discussed if it leads to the substantial reducing of its cost, than the thing will be sold. If the parties agree on the physical division into unequal parts, it is possible to assign a monetary compensation. .Austrian Civil Code provides for a similar order (hereinafter – ACC) [5], § 830 of which provides that each co-owner may demand the cancelation of the shared property, except in cases if this “cancelation is untimely or leads to loss of others”. §841 provides for two kinds of division: in kind and civil.

184 In kind division is carried out by unanimously decision in accordance with § 841, the civil division is applied in case of failure to reach unanimity. According to § 843 if it is impossible to divide the common thing or it is impossible to divide it without a significant reducing of the cost, the each co-owner may demand the enforced sale and distribution of the received amount between the participants. Consequently, the civil division, in actual fact, means sale of the common thing through the public auctions with distribution of the received amount in proportion to shares. Article 815 of the Civil Code of France [6] provides that no one shall be a co-owner of the common property by force, and the question about its division may be arisen at any time if only there is no adjournment by the court decision or agreement of the parties. On the demand of co-owner the court has a right to postpone the division for a period not exceeding two years. If immediate division includes the risk of cost reducing of the common property or if any of the co- owners may begin an exploitation of the agricultural enterprise, which is the part of the inheritance it will be only after this period .This delay can be applied to the entire common property or to its individual objects. The mechanism of apportionment of participatory share attached to the section 3 of the mentioned above Article is of interest. If co-owners intend to save the property as common, the court has a right, at the suit of one or more of them, depending on the interests after the examination to adjudicate a share to the person who was demanding a division, or in kind, if this share could be simply divided from the whole property, or in cash, if the adjudicate in kind could not be carried out in acceptable manner or if the applicant declares about such preference. If there is no sufficient amount in the common property, the insufficient part will be paid by the co-owners, who recognize the suit that does not affect the opportunity of other co-owners to take part in it to their wish. The share of each of the common property is increased in proportion to the amount paid to them. If all co-owners are present and capable to act the division may be made in such manner and through such act as the parties deem proper (Art. 819 CC of France). Where one of the co-owners refuses to consent to a division, or where controversies arise, either as to the way of proceeding, or as to the manner of settling it, the court shall decide as in summary matters, or shall appoint, if necessary, for the proceedings of division, one of the judges, on whose report it shall decide the controversies. (Art. 823 CC of France). Each one of the co-owners may demand his share of the and immovable property of the succession in kind: however, where there are attaching or seizing creditors, or where the majority of the co-owners deem a sale necessary for the discharge of the debts and liabilities of the succession, movables shall be sold publicly in the ordinary manner (Art. 826 CC of France). If the immovable property could not be divided in appropriate manner it must be sold. After the immovable and movable properties have been evaluated and sold, if there is occasion, the su- pervising judge shall send the parties before a notary upon whom they agree, or whom he appoints of his own motion, if the parties do not agree upon a choice. Before that officer shall be determined the accounts of what the parties may owe each other, the formation of the general mass, the composition of the shares and the al- lotments to be made to each of the participants of the division. (Art. 828 CC of France). Consequently, the mechanism of expropriation of common thing on the demand of one of the co-owners of the division of common property has long been in the foreign legal systems. However it is carried out only in the cases when the division of the thing in kind is impossible or such division is not economically advantageous that should be cleared by the court. In those countries where the rule for sale of a common thing through auction exists, there are quite a variety of theoretical basis of understanding of the share, as the substance is not similar in its content to the right of individual property. K. Englender noted that the content of the share depends on the law in general, but in consequence of synthesis of shares a particular situation appears showing that complex of the property shares is not the same as an individual right [7, p. 209].

185 Another German researcher K. Hilbrandt, developing his theory of understanding of a share, wrote that in shared property the full right of property exists only abstractly, in the view that all of these rights together provide a comprehensive power of the ruling [8, p. 635]. In the opinion of K. Hilbrandt «share» is the only part in value of one co-owner in the general subject. There is no right to share in the subject (of the right) but there is only the right to subject which absolutely belongs to several people. Each co-owner is understood as the owner of the whole right, which is limited, however, by the same proprietary rights. Each owner of the whole is understood as the owner of rights, which is limited, however, the same proprietary rights. In this respect, they can rather be described as limited property rights (for example, easement), and the main difference is that, in a shared property the full right exists without limitation and is only limited by the existence of the right from other co-owners, as in certain cases it requires the consent of all co-owners. German Classical theory of common property (the theory of multiple laws) is based on the fact that each co-owner has the full right limited by the full rights of other co-owners. This theory was studied in details in the work of A. Tur, his opinion has made a great influence during creation of the German Civil Code. Theory of competing full rights is reflected in the juridical practice, it is also widely reflected in modern commentaries and textbooks. Developing the theory of the competing full rights R. Schnorr suggested the ideal share as a form of the full right, in which the proprietary rights are limited in the internal relations of the participants. Share is like a numerical scale for degrees of limitation of the proprietary rights [9, с. 85-90]. .Consequently, the sale of the common shared property on the court decision is provided by the European leading codifications and is widely used in practice and in theory [10, с. 224] . The constitutional guarantee of the inviolability of the right of property is not violated by the mechanism of forced sale of the common property because the right of the common shared property in its content has not the analogy with the right of individual property. The right of individual or sole property is limited only by the rights of the third persons (in other words by the external limitations). The right appeared from the share in the property among the other matters is limited by the existence of the same share of another co-owner. Each co-owner has the right to own, use and dispose of the property in the extent that it does not violate the legal sphere of the other co-owner. Thus, if one of the owners wants to cease his/her ownership and there are no possible ways (to reach an agreement on the division is impossible, to divide the thing in proportion is impossible) in exception of the applying to the court, in this way it will be considered not as violation of the right of another co-owner, just as realization of his\her right of the property. Forced method of realization of the right is connected with the nature of the relations, and it is not motivated by the purpose to apply the sanctions to the other co-owners or to protect any public interests. In this way the mechanism of the right of the co-owner is realized which is predetermined by the limited nature of the share in the right of property. .The term «obvious inadvisability», on the basis of the analysis of foreign experience, can be understood as physical or economic indivisibility. .Abidance by the rules provided in the p.3-5 of the Art. 218 of the Civil Code of the Republic of Kazakhstan is the compulsory condition for the application of the p. 6 Article 218 of the CC RK as: 1).There is a reference to paragraphs 3-5 of the Art. 218 in the text of the p. 6, Art. 218 of the Civil Code; 2) The use of the p. 6 is an exceptional measure, used as a last resort, after setting the fact by the court that the parties have tried to divide the property in kind, they could not agree, the property in kind is indivisible due to the physical features or because of the law, the share of the applicant is significant. .According to the Article 249 of the CC RK the right of property is ceased after the alienation by the owner of his property, it is also applied to the alienation of the common property on the auctions. In case of the p. 6 of the Article 218 the basis for transferring of the right of property is not the court decision, but contract of sale, concluded as a result of trading. P.6 of the Article 249 of the CC RK is not a case of forced alienation of the property; it is a mechanism of realization of the right of one of the co-owners to cease the relations of the common shared property. Firstly, it is predetermined by the nature of the common shared property; secondly,

186 it is taken as the last resort because to reach an agreement with other co-owners on this issue and to solve it in other ways provided by the law is impossible. The Court performs its untypical function. Because the Court by its decision will replace the wishes of other co-owners who do not agree with the alienation of the property, as well as it will provide for the compliance of interests of the co-owners who are not agree, by providing the alienation mechanism from the p.3-5 of the Article 218 of the Civil Code. . The court decision on sale of the property through the public auctions gives a guarantee of the right of co-owner to cease the relations of the common shared property and the right to dispose of the property. .By itself, the norm provided in the p. 6 of the Article 218 of the Civil Code is the advanced norm and its importance can hardly be overestimated. The right of the owner to demand the sale of the common property is one of the most important giving a guarantee for realization of the right of property. The absence of this right leads to the collapse of the law, to the lack of proper regulation of the cessation mechanism of the relation of the common shared property. In the case when the property is indivisible, to agree on its division or shared usage is impossible, to sell the share at a knockdown price is economically unprofitable, there is only one way to sell the property as a whole. Securing of such right in addition to the guarantee has also a stimulating effect because the co-owner who is interested in using by common property will agree to accept a compromise and to negotiate with the other co-owners and will not ignore them.

REFERENCES: 1. About examining of the constitutionality of the paragraph 6 of the Article 218 of the Civil Code of the Republic of Kazakhstan (General part) from December 27, 1994 № 268-XIII on the providing of the Karaganda regional court: Normative resolution of the Constitutional Council of the Republic of Kazakhstan from June 11, 2014 number 2. 2.. Buergerliches Gesetzbuch Bundesrepublik Deutschland vom 18. August 1896 RGBI. S. 195 Inkrafttreten am 1. January 1900. 3. Rebmann K., Säcker F., Rixecker R. Münchener Kommentar zum Bürgerlichen Gesetzbuch. 4. Schweizerisches Zivilgesetzbuch vom 10. Dezember 1907 SR 210 Inkrafttreten am1. January 1912. 5. Allgemeines bürgerliches Gesetzbuch für die gesamten deutschen Erblaender der Österreichischen Monar- chie vom 1. Juni 1811 JGS № 946/1811 Inkrafttreten am 1. Jaenner 1812. 6. .Loi n° 65-557 du 10 juillet 1965 fixant le statut de la copropriйtй des immeubles bвtis. Version consolidйe au 22 juin 2013 [Электронный ресурс]. Выходные данные. URL: http://www.legifrance.gouv.fr/affichTexte. do?cidTexte=JORFTEXT000000880200 7. Engländer K. Regelmäßige Rechtsgemeinschaft. Berlin, 1914. 8..Hilbrandt C. Der bei der Bruchteilsgemeinschaft – eine Untersuchung der Rechtsstruktur des Bruchteils. 9. Schnorr R. Die Gemeinschaften nach Bruchteilen (§§ 741-758 BGB). Tübingen., 2004. 10. Read more about the features of common shared property in European law in the monograph of U.B. Fila- tova. The concept of development of the institution of common property in Russia and abroad: a monograph. - M .: Yurlitinform. 2013.

187 Friedrich-Christian SCHROEDER – Professor, Doctor of Law, Honored Doctor (Federal Republic of Germany)

CONTRIBUTION OF THE CRIMINAL PROCEDURAL CODE OF KAZAKHSTAN TO DEVELOPMENT OF THE LEGAL STATEHOOD: VIEW FROM GERMANY

I. Introduction Kazakhstan is the second largest state in terms of territory - the successor of the Soviet Union and the ninth-largest country in the world. After the declaration of state independence the Republic of Kazakhstan has fostered the efforts to intensive creation of democracy and legal statehood. The international community watches for this development with a great interest and democratic legal states with high expectations. One of the most important elements of the legal statehood is a settlement of the criminal process, because by means of criminal law, the State applies the most strict measures of coercion, which it has in addition to the state of war. The Republic of Kazakhstan extensively and carefully worked out its criminal procedure law. The first post-socialist Criminal Procedural Code of Kazakhstan was adopted in 1997after making the most important amendments in the socialist Criminal Procedural Code in 1960. It also has been constantly adapted to new requirements. However since the beginning of this millennium there appeared an opportunity of extensive reform of the Criminal Procedural Code. At the end of 2002 there was provided a detailed comparative table of amendments planned in the Law “On making amendments and additions to the Criminal Procedural Code of the Republic of Kazakhstan on the issues of the further settlement of the criminal process”. In spring of 2011 was created a “conception” of the law draft.

188 For this period with purpose of reforming the consultants from several foreign countries and the OSCE were involved. From the German side the German Foundation for International Legal Cooperation (IRZ) took part in consultations. By order of the Corporation the retired vice-president of the Federal Supreme Court Dr. Burkhard Yenke made a detailed conclusion on the draft of 2002. The work group from Kazakhstan was in February 2012 with a guest visit to IRZ in Berlin with a purpose of discussion of reforms, the author had an honest to take part in it. The main issue of the discussion was not “amendments and additions to the Crimi- nal Procedural Code” but a draft of the new Criminal Procedural Code. Fortunately, the authorities aimed to reforming constantly inform the public on the work of this reform. From this it is clear that many amendments were added to the draft at the last minute, or, conversely, removed from it. Despite the fact that this participation of the public in the work of reforming was pleasant, the continuing changes provoke distrust concerning the good thinking up of the new norms. Against the background of the large discussion about reforming the surprising fact is that the new Crimi- nal Procedural Code has a structure very similar to the old one. The numeration of sections excepting the loss of the section 11 and the displacement of proceedings on the case in a trial by jury from section 13 to section 14 - has remained the same. There were only four new sections added: 12. International Coopera- tion 13. Proceedings in cases of procedural agreements 15. Proceedings in the forfeiture before sentencing, 16. Transitional and Final Provisions. The numeration and the titles of the chapters also remained the same, excepting some classifications and additions, such as a chapter on the application of compulsory medical measures. It has the same number (54) in the old and in the new code. Thus, there was confirmed the firstly planned name of the law «Making amendments and additions». It makes the using of the new code easier and faster to recognize the changes.

II. The rapprochement of the criminal procedural law of Kazakhstan and Germany The new Criminal Procedural Code of Kazakhstan includes very important changes. They cannot and should not be fully presented here, because they are known to Kazakh reader. Instead of that, whether and how due to the reform the criminal procedural law of Kazakhstan was coming together with German criminal procedural law should be examined on several examples. Thus, there should be created the basis for the further legal cooperation and exchange of experience.

1. The improvement of the preliminary proceedings In accordance with the law the preliminary proceedings begin with “the Institution of a criminal case” (Art.186). However, before it there is a preliminary consideration, which has no time limit and often lasting longer than the actual investigation. At that moment the victim absolutely has no rights because the recor- dation is possible only after “the institution of a criminal case” (Art.218), the investigations are often held twice. That is why the new norm gives an opportunity to begin a criminal case from the moment of registration of the application of the crime, from another report or the first urgent investigative action. Accordingly, “the institution of criminal case» is replaced by «the beginning of the pre-trial investigation.» It corresponds to a German law which, although is not linked to the registration, but is coordinated with recognizable actions of the criminal prosecution (§ 397 of the Regulations on Taxes). In Germany, there are no special «investigators», and the investigation is conducted by the police servants who formally are under control of the Prosecution Office, but as a rule, they work independently and just represent a “final report” to the Prosecution Office, which then makes the indictment and sends it to the court. In Kazakhstan, the investigator, although cannot, as before, make the indictment (Art. 278), but he makes «bill of the indictment» including the essential data on the crime and about the suspected (Art. 298f.). The prosecutor «confirms» it, but also he can make a new «bill of indictment» by himself (Art. 302). From the German point of view, this competition, between the two almost equal the prosecuting

189 authorities, seems to be not very successful. In addition, the new Criminal Procedural Code has retained the previous distinction between «investigation» and «inquiry» in simple cases. It leads to numerous and difficult finding out of distribution of the authorities (Art. 187ff.). It should be supposed that a sudden disestablishment of a position taken by many people from the social and psychological point of view is impossible. The disestablishment of a position should be made step by step and the positions of the retired employees should not be held. By the new Criminal Procedural Code of Kazakhstan was made a prescript according to which the preliminary proceedings in a case, obviously, on the basis of the Art. 6 of the European Convention on Human Rights should be completed within a «reasonable time» (Art. 192). The prescribed period is two months, but in the difficult cases it may be extended.

2. Introduction of the position and power of the investigating judge The introduction of the position of the investigating judge makes the Criminal Procedural Law of Kazakh- stan much closer to the German law (Art. 55, 56). Thus, there will be created a special position of the judge responsible primarily for the resolution of interference with the rights and freedoms of citizens. With the introduction of this post the list of measures required the judicial authorization was greatly expanded (Art.55 p.1). It complies with the requirements of the legal state. Unfortunately, for hidden measures the resolution of the superior prosecutor was considered as sufficient (Art. 234). In addition, the investigating judge got the right to «consignation» of the testimony of witnesses and victims (Art. 55 p. 2 number 3, 217). The position of the investigating judge was presented in the German Criminal Procedure since creation of it (§ 162). However, it does not include a list of power of the investigating judge, and it only requires that, in cases in which there is a need for judicial investigative action, the prosecution office should send a corresponding request. Judicial authorization is required for most of coercive measures and it is regulated there. The formulation of the need of the judicial investigative action also covers the case where because of the fear for the impossibility of witnesses inquiry in the trial the similar inquire is conducted in a preliminary hearing. The protocol of interrogation becomes a part of the case without requiring any «consignation”.

3. Hidden measures It has been said that the admissibility of the hidden measures of the investigations only with the permis- sion of the prosecutor arises regret. But the great merit of the new Criminal Procedural Code of Kazakhstan is that the hidden measures generally are regulated in the Criminal Procedural Code (Ch. 30). They include a serious interference in people’s private lives, and therefore require a precise definition of their premises. To accomplish the purpose, the «hidden measures» should really be hidden from the suspect, but the permis- sibility and form of these measures must be known to citizens. The article in the Internet platform zakon.kz from 25/03/2013 shows the courage which was required for the inclusion of these provisions into the Crimi- nal Procedural Code. According to the author, the inclusion of these provisions into the Criminal Procedural Code contravenes to the Constitution of Kazakhstan and the basics of the science of criminal procedural law. Obviously the author spontaneously expresses his opinion on provisions, complaining that the new provisions «ignore our historical development of the state and law». For the author, obviously, with the introduction of the new norm the «ideal world» of the Soviet security service was broken.

4. Agreement in criminal proceedings Like the German criminal procedural law, the criminal procedural law of Kazakhstan now also includes an agreement in a criminal trial. A particular intention should be paid to the requirements of the legal statehood, because the agreements in criminal proceedings facilitate the work of the prosecution and, therefore, include a great temptation to bring (force) of the accused by all means to the conclusion of such an agreement.

190 The new Criminal Procedural Code of Kazakhstan has an agreement in the form of an agreement on the recognition and in the form of cooperation (section 13). In accordance with it the accused has an opportunity at any stage of the proceedings to make a request on conclusion of the procedural “agreement in the form of confession” (Art. 615). The agreement must be signed by the prosecutor, by the accused and his defense counsel, and it is transferred to the court by the prosecutor. The agreement defines the set of criminal law and punishment required by the prosecutor (Art. 616). In addition, for foreign observer the following fact is unclear: that the Criminal Procedural Code of Kazakhstan does not provide for any «suggestions» to the accused with respect to the size of punishment and generally there is no connection between the court and the prosecutor`s request about the size of the punishment. The trial is conducted without examining the evidence. However, the judge checks the guilt of the defendant (Art. 626 p.1 number 3). After it, the sentence is rendered. In Germany, the law, the legal policy and legislation for a long time were against the agreement in the criminal process, as they saw in it a doubtful «justice trade». But after development of the hidden agreements between the courts and the defendants without norms of law, in 2009 there were issued the relevant regulations by the legislator. However, the word «treaty» was avoided and replaced by the «agreement” (§ 257 c of the Criminal Procedural Code). The agreement occurs between the court, the accused and the prosecutor’s office. At the same time certain limits of punishment in exchange for the confession of guilt are offered to the defendant. Agreements on the applicable criminal law are not allowed. All negotiations relating to it should be taken in the court record. The duty of finding the truth is left, so the confession should be checked out. Rejection of the appeal cannot be agreed agree on. As far as the conditions of the German law stand for “agreement”, so the fact is so controversial, that whether the norm of the Kazakhstan law provides for sufficient guarantees against the abuse. At the same time the new Criminal Procedural Code of Kazakhstan also includes “an agreement on cooperation”. It requires the support of the accused or the defendant during the detection of the felony crime and in exposure of the criminals. This activity is carried out only after the conviction of these criminals (Art.621). The German law has big moral doubts relative to the motivation of the criminals committed felonies to the treachery of their fellows. Therefore, it only provides for the possibility of mitigation of the sentence, and only after the «significant contribution» to the detection of felonies. (§ 46 b of the Criminal Procedural Code).

III. Closing remarks Aforementioned, there were listed some moments of rapprochements of the Kazakh and German criminal procedural law due to the new Criminal Procedural Code of Kazakhstan. There are a number of rapprochements, which have not been shown here. In general, the new Criminal Procedural Code of Kazakhstan is a good basis for the further fruitful cooperation between the Kazakh and German science and practice of the criminal proceedings.

191 Lyudmila Tkhabisimova – Deputy Director for Science of the Institute of Law of the Federal State funded Educational Institution of Higher Professional Education “Pyatigorsk State University of Linguistics”, Doctor of Law, professor (Russia)

CONSTITUTIONAL RESPONSIBILITY IN THE SYSTEM OF HIGHEST BODIES OF STATE AUTHORITY OF RUSSIA AND KAZAKHSTAN

“As a publicly elected head of state, I bear responsibility for everything that happens in the country. Being the protector of Constitution, civil rights and liberties covered in it, I apply efforts and force for providing detailed coordination of all branches of government. I tend to make every branch of government to be responsible for entrusted issue” Nursultan Nazarbayev

here are many researches of political scientists of Russia and Kazakhstan dedicated to an issue of constitutional responsibility. Nevertheless it is eligible to consider that in scientific community there is a Tdifference of principles related to the nature of constitutional responsibility, circle of its subjects, and ways of legal impact that can be regarded as liabilities. According to G.W.F. Hegel, ensuring the state and those who are under its control, the abuse of power by authorities and officials is directly in their hierarchy and responsibility. Of all kinds of legal liability is constitutional and legal responsibility which most closely matches the role [1, p.334]. The responsibility of the supreme bodies of state power derives from the principle of separation of powers as a special regime based on the independent existence of branches of the government, prevents the concentration of public power and its abuse. «Separation of powers is the constitutional principle of the organization of management of the state life, the essence of which lies in two aspects: a) the division of unified state power, the source of which is the people in the three branches of independent views of the government,

192 legislative, executive and judiciary, separation of powers between the them; b) separation of government functions by levels of public authorities, for example in terms of the Russian Federation - the federal level, the level of subjects of the Russian Federation and local government level (although not a public category, but participates in the management of the life of society)»[2, p .496]. The separation of powers does not mean their exclusion, modern state practice based on close consultation and cooperation of public power branches. As rightly noted in the science, the separation of powers involves a constructive operation, interaction and interpenetration branches of government [3, p. 3]. The peculiarity of the constitutional and legal responsibility of the highest state authorities manifested in the fact that it exists in the separation of powers and is its consequence. This responsibility is exercised in the context of the so-called checks and balances that maintain a specified balance of power, preventing the rise of one branch of power over others. It should be noted that the measures of constitutional responsibility of the highest state authorities rarely used, which testifies to their exclusivity. After analyzing the current legislation, it should be stated that the theory and practice of constitutional responsibility in the Russian Federation and the Republic of Kazakhstan are still far from perfect, despite the considerable potential inherent in the constitutional norms. One of the features of the Constitution of the Russian Federation in 1993 and the Republic of Kazakhstan in 1995 is to consolidate it up the constitutional responsibility, which is considered to be completely independent kind of legal liability, which provides legitimacy in the public sphere, in the activity of the highest state authorities. The fact that presidents can be held responsible and punished as a head of state is the best evidence rule of law. The current legislation of the Russian Federation and the Republic of Kazakhstan provides as measures of constitutional responsibility identical kinds of constitutional sanction: dismissal; early termination of the legal entity; suspension of activities of a political party (public association); the elimination of the political party (public association); annulment of the decision and rejecting the application for naturalization; Review of the deputy; suspension of the right to vote. At the same time these measures are constitutional sanctions not in all cases, but only when they are a way of responding to a constitutional tort. In our opinion, the assignment of the constitutional sanction such methods of legal influence, as a warning, the recognition of unconstitutional regulations and deprivation of immunity is inappropriate, because they are only an inter- mediate step in the process of implementation of the constitutional responsibility. In this case, we consider only certain types of constitutional sanctions. In our view, consideration of the constitutional responsibility should start with the responsibility of the President - the head of state, which is like no other, gives an idea of the public responsibility of the state. According to V.A. Malinowski, Institute of responsibility is an essential attribute of constitutional status of the President. Basis, mechanisms and consequences of engaging the head of state accountability are essential parts of the separation of powers, the republican form of government in the country [4, p. 417]. According to D.L. Zlatopolsky «there is no doubt that the responsibility of the President is the most important part of his status resulting from the nature of its relationship with Parliament and therefore determines its place in the whole system of state bodies, as well as the degree of democracy of the state» [5, p. 18]. The Republic of Kazakhstan and the Russian Federation in its design of the presidential responsibility borrowed Anglo-American model of impeachment [6, p. 99], which received the full name of the parliamentary impeachment proceedings, the prosecution and punishment are connected to the walls of parliament, carried out by different chambers, which is a manifestation of the separation of powers, but within the same authority. Analyzing the foundation of the constitutional responsibility of heads of states under consideration, it should be noted that according to the Constitution of the Republic of Kazakhstan (p. 2, Art. 47), the President of the Republic of Kazakhstan is responsible for acts committed in the performance of his duties and only in the case of high treason may be behind it impeached by Parliament. The president of the Russian Federation,

193 according to the Constitution of the Russian Federation (p. 1, Art. 93), may be impeached by the Federation Council of the Federal Assembly of the Russian Federation on the basis of allegations put forward by the State Duma not only in treason, but in the commission of another felony. Which kind of serious crimes is meant, in this case, it is necessary to guess only. However, the list of serious crimes defined in the Criminal Code of the Russian Federation. Attention is drawn to the fact that at the time of adoption of the Constitution of the Russian Federation in 1993 the Criminal Code of 1961 of Russian Soviet Federated Socialistic Republic (RSFSR) acted in Russia, which Art. 71 included serious crimes. The Criminal Code of the Russian Federation in 1996 has a new classification of crimes. According to Art. 15 of the Criminal Code offenses are divided into minor offenses, less serious crimes, serious crimes and especially grave crimes - depending on the nature and degree of public danger. [7] It seems that according to the Criminal Code the new President of the Russian Federation shall be responsible for the most serious crimes. To understand the essence of the issue, it is also necessary to specify what is meant by treason. In accordance with Art. 26 of the Constitutional Law of the Republic of Kazakhstan «About the President of the Republic of Kazakhstan» a treason meant an intentional act committed with the aim of undermining or weakening of external security and sovereignty of the Republic of Kazakhstan, expressing the transition to the enemy in time of war or armed conflict, the provision of assistance to a foreign state in implementation of hostile activities against the Republic, and may be deprived by Parliament in the manner prescribed by the Constitution. [8]. Regarding the concept of treason of the President of the Russian Federation, it can not be equated with the concept of high treason, which is contained in the Criminal Code of the Russian Federation. Ac- cording to Art. 275 of the Criminal Code of the Russian Federation treason is committed by a citizen of the Russian Federation actions for assistance to a foreign state, a foreign organization or their representatives, aimed to the detriment of the external security of the state. President of the Russian Federation - is not an ordinary citizen, but the head of state, endowed with broad powers. The circle of the acts constitut- ing the offense of «treason of the President» - can and should be specifically stipulated in the criminal law and can not be limited to those specified in Art. 275 of the Criminal Code of the Russian Federation forms (espionage, disclosure of state secrets, other assistance to a foreign state, a foreign organization or their representatives in hostile activities against Russia). In this context, an important role in the subjective personification of treason of the President of the Russian Federation could have the oath of the President. Thus, the conclusion that the Russian President has the right to do away with deliberate offense punishable by imprisonment for a term not exceeding five years, and negligent offenses for which is provided for a more severe punishment, including the crime that caused the death of two or more persons, and to remain president. The Criminal Code of the Russian Federation provided limitation period for criminal responsibility: when a felony 10 years, and at a particularly serious crime - 15 years (Art. 78 of the Criminal Code). [9] But it is in relation to ordinary mortals. If the procedure of president`s dismissal is delayed (for three months), he can not be held criminally responsible only, but more than that, despite the conclusion of the Supreme Court on revealing signs of treason or felony in the actions of the President, he continues to be the head of the Russian Federation. Consideration of the grounds of possible occurrence of the constitutional responsibility of the head of state, testifies not only to a limited, compared with the legislation of the Russian Federation, the circle of wrongful acts in the Republic of Kazakhstan, but also the need to concretize these acts in the Constitution of Russian Federation. At the same time, it appears that the presentation of the relevant rules in the legislation must exclude the possibility of loose as well as restrictive interpretation of them. In addition, one can not agree with V.O. Lucin that a serious danger to the public may be the acts of the head of state, who do not form corpus delicti, violate constitutional norms (for example, illegal dissolution of

194 the State Duma of the Federal Assembly of the Russian Federation, avoidance of an assignment of the referendum, when all the necessary conditions for such a decision are met.) [10, p. 12-19]. The Russian Federation has already taken the first attempt to impeach the President of the Russian Fed- eration. This procedural rule was implemented in June 1999, when the Secretariat of the Council of the State Duma of the Federal Assembly of the Russian Federation was presented documents initiating the question of impeachment (impeachment of the President of the Russian Federation B.N. Yeltsin due to his committing serious crimes). In accordance with Art. 3 of the Federal Law from February 12, 2001 № 12-FL «About guarantees of an outgoing President of the Russian Federation and his family» [11], the former Russian president also has immunity and can not be held criminally liable for the acts committed during his period in office of the President of the Russian Federation. Based on the part 2 of art. 92 of the Constitution of the Russian Federation Presi- dent may terminate his powers at any time, by resignation, thus making himself a jurisdiction. In our opinion, there is a clear gap in the law. In our view, it is clear that the President of the Russian Federation, committed any criminal offense, should be subject to the procedure of impeachment. In other words, the basis for impeaching the President of the Russian Federation from office must specify at least «commitment of a criminal offense» Deficiency of grounds under Art. 93 of the Constitution of the Russian Federation to remove the President from office of the Russian Federation received a profound development in the works of many scientists. According to O.V. Brezhnev, as a ground for impeaching the President of the Russian Federation from the post «violating the Constitution, federal laws, resulting in grave consequences» should be put in place[12]. Zykova N.S considers it necessary to introduce full-fledged institute of constitutional responsibility of the President of the Russian Federation in the form of removal from office for actions or decisions that con- travene the Constitution of the Russian Federation [13. p. 30]. Constitutional liability scheme of higher federal authorities in Russia has always aroused in the academic world sharp criticism. The responsibility of the President of the Russian Federation virtually unattainable in mind the cumbersome procedure of his dismissal, numbering several steps - bringing charges by the State Duma of the Federal Assembly of the Russian Federation, giving expert opinions of the Supreme Court and the Constitutional Court, within three months period adoption of the decision on dismissal by the Federation Council of the Federal Assembly of the Russian Federation. But the president is the head of state, who implements national sovereignty, and his position in the national interest requires the utmost delicacy. Impeachment of the President has always been considered as an extreme measure of responsibility used in rare cases. In Europe, for example, only one president was forcibly deprived, it was the President of the Republic of Lithuania Rolandas Paksas in 2004, who was impeached by the Lithuanian parliament on charges of gross violation of the Constitution of Lithuania on three points: granting Lithuanian citizenship to Borisov, Russian businessman, failure in protection of state secrets and illegal attempts to influence private business [14, p. 20]. In our opinion, such a measure of the constitutional responsibility as an impeachment serves as a preventive measure, forcing hears of states to be guided only by the law. After analyzing the constitutional provisions on the responsibility of the head of state, we can assume that, in comparison with the legislation of the Russian Federation, there is a narrow circle of grounds of the constitutional responsibility of the president of the Republic of Kazakhstan, whereas the state structure and the form of rule of the Republic of Kazakhstan suppose the highest concentration of political power in the hands of the president. It also can be proved by the presence of legislative right of the president of the Re- public of Kazakhstan to recognize certain acts of collegial subjects of legal relations the constitutional tort with the application of appropriate measures of responsibility.

195 Considering the fact of deficient clearness of constitutional provisions, settling the grounds of constitutional responsibility of the president of the Russian Federation and the Republic of Kazakhstan, it would make sense to spell them out in detail by making appropriate amendments with the aim to exclude liberal and restrictive interpretation. It is important to mention the discrete role of bodies of judicial review of constitutionality of the Russian Federation, as well as the republic of Kazakhstan in the realization of the constitutional responsibility. Here we can note execution of the following functions by above-mentioned bodies: - Check on compliance of procedure of charge preferral against the head of state; -. Settlement of constitutionality and unconstitutionality of regulatory enactments of state bodies as a realization term of punitory function of constitutional responsibility; -. Interpretation of constitutional provisions with the aim of clear definition of constitutional duties of the subjects of constitutional relations; - Spelling out in detail the grounds of legal influencing measures to the measures of constitutional responsibility. When considering the activity of judicial constitutional control of the Russian Federation and the Re- public of Kazakhstan it can be stated that they are characterized by different amount powers. The Constitu- tional Council of the Republic of Kazakhstan on the basis of the Constitution of the Republic of Kazakhstan, in contrast to the Constitutional Court of the Russian Federation shall have the right to carry out preliminary constitutional control through the establishment of compliance with the Constitution of the Republic of Ka- zakhstan and laws adopted by Parliament before being signed by the President of Kazakhstan. On this basis, it would be advisable to establish by law the right of the Constitutional Court of the Russian Federation on the implementation of the procedure of preliminary control regulations. Problem, inherent equally to legislation and legal doctrine of the Russian Federation and the Republic of Kazakhstan, is an unclear legislative regulation of the constitutional responsibility of officials and collective subjects of constitutional relations. Therefore it is necessary to establish the guilt of a collegial body, in this case, these are Parliament, the Government and other authorities, through the fault of its officials in the cases when they are directly charged with the legislation of control over decisions of this body. With regard to measures of constitutional responsibility of legislative bodies, the dissolution of Parlia- ment by the President on confidence in the Government may seem excessive. However, the cause of the dissolution of Parliament is a crisis of confidence between the Parliament and the Government, the resolution of which the Constitution entrusts to the President as the legitimate head of state, who has the constitutional obligation to ensure the coordinated functioning and interaction of bodies of state power. President dissolving parliament, thus disagreed with his position, found him guilty of a dispute with the government. Never- theless, the alternative is the dissolution of Parliament the government’s resignation, which the President has the right to realize. This conflict cannot be left open. In the context of non-confidence in the Government by the Parliament, the Parliament would be failing government bills, which most and this may lead to paralysis of legislative and even the whole activity of the state. Legislation and practice activity of the parliament gives reason to distinguish two kinds of responsibility: political and legal. However, it acknowledges the existence of the legal liability of the deputy chairmen, the Chambers and the Parliament as a whole [15, p. 334, 339]. This is true in relation to the legal responsibility of these legal entities, however, is hardly applicable to the concept of constitutional responsibility. It seems that it cannot be interpreted as the dissolution of the Mazhilis of the Parliament, which was resorted by the President of Kazakhstan twice: in 2007 and 2011. In the first case, he was associated with the need to a speedy implementation of the results of the constitutional reform of May 21, 2007. In the second - to bringing the composition of the deputies in line with the real multi-party system, according to the results of elections in 2012 Mazhilis became the three-party (instead of one-party).

196 In accordance with Art. 52 of the Constitution of the Republic of Kazakhstan, the Member of Parliament shall be deprived of his mandate in the following cases: departure for permanent residence outside Kazakh- stan; coming into force a judgment of conviction in relation to him; loss of citizenship of the Republic of Kazakhstan. The Constitution of the Republic of Kazakhstan sets the grounds of deprivation of the mandate of the Mazhilis deputy: - Firstly, the withdrawal or expulsion of the deputy from the political party which suggested the deputy for elections in accordance with constitutional law; - Secondly, the termination of the political party which suggested the deputy for elections in accordance with the constitutional law. Powers of appointed senators may be terminated by the decision of the President of the Republic. In addition, the powers of the deputies of the Mazhilis of the Parliament and the Parliament are terminated in the event of the dissolution of Parliament or the Mazhilis. However, none of these reasons, in our opinion, does not contain the legal structure of the constitutional violation, and therefore cannot be recognized as a constitutional tort. Such issues as the government’s resignation in the Constitution of the Russian Federation and the Constitution of the Republic of Kazakhstan also resolved gradually. President of the Russian Federation and the President of the Republic of Kazakhstan enjoy the unconditional right to the resignation of the Government, but it follows naturally from their status as head of state, from the fact that the President forms the government at a relative parliamentary participation. In all countries, the government as a non-elected and secondary body is formed by representative bodies like Parliament and the President, to whom it responds of his staff. Certainly, the Government is liable to the President, regardless of his guilt. None of the presidential decree on the resignation of the Government did not contain a word of reproach to the Government, but this is the logic of the government’s resignation in a presidential republic, characterized by unconditional responsibility of the Cabinet before the Head of State. Deterrence of the Government is a vote of non-confidence from Parliament, which is not limited under any circumstances and the time and is absolute. This allows the Parliament to adjust the activities of the government effectively, forcing the government to take into account the parliamentary position. The right of expression of Parliamentary non-confidence to the Government, however would lose its effectiveness if there were no guarantees of the inviolability of the Parliament, certain circumstances, blocking the early termination of powers of Parliament. Vested right of dissolution of Parliament in practice can lead to the dying away of parliamentary vote of non-confidence, which is a characteristic appurtenance of modern parliamentarism, weakening of control functions of popular representation over the executive power. According to the Constitution of the Russian Federation State Duma of the Federal Assembly may not be dissolved from the moment it brings charges against the President of the Russian Federation, during the period of war or emergency rule throughout the entire territory, as well as six months before the end of the term of office of the President of the Russian Federation (p. 4 -5 Art. 109 of the Constitution of the Russian Federation). For the establishment of relations between the State Duma and the Government of the Russian Federation the most significant thing is constitutional indication that the State Duma of the Federal Assem- bly may not be dissolved on the grounds covered in Article 117 of the Constitution of the Russian Federation, that is because the expression of its non-confidence to the Government of the Russian Federation, or the refusal to trust, within a year after its election. This provides the opportunity for the State Duma of the Rus- sian Government to achieve a real resignation, expressing non-confidence within this time limit twice within three months, forcing the President to announce the resignation of the government, which can no longer be prevented by the dissolution of the State Duma.

197 Whereas the policy of the State Duma of the Federal Assembly of the Russian Federation effectively hold back an available Government`s right to request the confidence of State Duma, which is also not limited by any circumstances. The refusal of the Russian Federation Government in confidence by the State Duma according to the Constitution of the Russian Federation runs into its dissolution, which makes it consider a request to support government initiatives. According to D.S. Ashaev «in contrast to non-confidence, initiated by the parliament, the right of the question about confidence is, in fact, means of pressure of the government over the Parliament» [16, p. 132]. The responsibility of the Government before the legislature is different: the Parliament only initi- ates the resignation of the government, expressing non-confidence or refusing to trust, transferring the question on the resolution of the President, which may announce the resignation of the Government or dissolve the Parliament. The possibility of dissolution of the Parliament in this situation is evaluated critically by many political scientists as a measure that undermines the institution of parliamentary non-confidence. This refers to the fact that during the time of the Constitution of the Russian Federa- tion in 1993 there was the only official expression of non-confidence by the State Duma to the Govern- ment of the Russian Federation in 1995. But on the other hand, if the necessary consequence of a parliamentary vote of non-confidence is the resignation of the Government, the right of Parliament to control the government will turn to the right to shift the government, which, in our opinion, will deform the parity of authorities. Causing a parliamentary non-confidence to the Government with the possibility of the dissolution of parliament, the constitution makes Parliament cherish their confidence, weigh its criticism with the interests of the state, to avoid the extreme actions, generating a crisis of power. It should be borne in mind that the constitution of the Russian Federation and the Republic of Kazakhstan, allowing the dissolution of the people’s representatives, simultaneously reserve self- conduct, calling the circumstances that block the dissolution of Parliament. For example, the State Duma of the Federal Assembly of the Russian Federation on the issues of confidence in the Govern- ment of the Russian Federation may not be dissolved within one year after its election. Moreover, if the State Duma expresses steadfast non-confidence in the Government of the Russian Federation, it will be able to achieve its real resignation as far as the President of the Russian Federation, without being able to dissolve the State Duma, will perform the resignation of the Government of the Russian Federation. The intermediary role of the President in the conflict of the Parliament and the Government needs to design legislation based on existing experience. The Rules of Procedure of the Parliament must include rules for the establishment of a conciliation commission with the participation of the leaders of parliamentary fac- tions, the President and the Prime Minister for the period of consideration of the issue of non-confidence in the Government. Exactly the President may hold back the Parliament only if it has an unconditional right to dissolve parliament, which is the case in France and most foreign countries with parliamentary and fixed forms of government. The President`s associated right to dissolve the Parliament, which is realized only in the cases mentioned in the Constitution, prevents him from political maneuvering, flexible impact on the parliamentary position to achieve coherence. The constitutional responsibility of the highest state authorities should not interfere the normal functioning of the government, to undermine the status of higher institutions. The President cannot dissolve the Parliament and at the same time to announce the resignation of the Government. Another real deterrence of the President of the Government in the mechanism of mutual responsibility may be assumed an inquiry of parliamentary confidence. The government, raising a question of confidence before Parliament and having received such an answer acquires thereby parliamentary support, which the head of state will have to be considered with. The resignation of this government to address the chapter will

198 be negatively perceived by the Parliament, which will certainly have a negative impact on the passage of the presidential candidacy of the Prime Minister in Parliament. It should be noted that at the present stage of development of modern society institute of the constitutional responsibility of the Russian Federation and the Republic of Kazakhstan couldn’t be considered completely formed. It seems that both the Russian Federation and the Republic of Kazakhstan in theory will continue to develop in the direction of a uniform understanding of the essence of the constitutional responsibility as an independent legal phenomenon, followed by improving the rules of constitutional law, establishing the foundation of constitutional responsibility, its actions and the consequences of their occurrence.

REFERENCES: 1. G. W. F. Hegel Philosophy of Law. M., 1990. 2. Constitutional law. Encyclopedic dictionary/ Resp. editor S.A. Avakyan. М., 2001. 3.. A.V. Bezrukov Unity and division of the state power: the problem of the combination and realization // Constitutional and municipal law. 2009. № 21. 4. V.A. Malinovskiy Some questions of constitutional and legal responsibility of the President of the Repub- lic of Kazakhstan. In col.: The Constitutional and legal responsibility: problems of Russia, experience of foreign countries / Ed. S.A. Avakyan. M., 2001. 5. D.L. Zlatopolsky The Institute of the president in Eastern Europe: the election procedure and the responsibility // Vestn. Mosk. Univ. Ser. 11, Law. 1994. № 5. 6.. G Kolbaya. Resignation of the President: world experience and problems of Russian law // Magazine of the Russian law. 2004. № 4. 7. The Criminal Code of the Russian Federation from 13.06.1996 N 63-FL (ed. from 31.12.2014) (with amend. and addit. in force from 23.01.2015) Date of application Feb. 10, 2015 / Electronic resource: http:// www.consultant.ru 8..About the President of the Republic of Kazakhstan, the Constitutional Law of the Republic of Kazakhstan from December 26, 1995 (with amend. and addit.) / Electronic resource: http://online.zakon.kz 9. The Criminal Code of the Russian Federation from 13.06.1996 N 63-F L (ed. from 31.12.2014) (with amend. and addit. in force from 23.01.2015) Date of application Feb. 10, 2015 / Electronic resource: http://www.consultant.ru 10. V.O. Lucin The constitutional delicts// State and law. - 2000. - № 1. 11. Federal law from 12.02.2001 N 12-FL (ed. From 21.07.2014) “On guarantees to the President of the Russian Federation having relinquished his duties and to his family members”. Date of application Feb. 10, 2015. Electronic resource: http://www.consultant.ru 12. O.V. Brezhnev Judicial constitutional control in the early relinquish of duties of the President of the Rus- sian Federation: problems and prospects // Constitutional and municipal law. 2009. № 19. 13. N.S. Zykova Resignation of the President of the Russian Federation and the participation of the Constitu- tional Court of the Russian Federation in this procedure // Constitutional and municipal law. 2006. № 11 14. .M. Statkevichius Development prospects of impeachment in a modern democratic state // Costitutional and municipal law. - 2004. - № 6 15. G. S. Sapargaliev Constitutional law of the Republic of Kazakhstan – Almaty, 2002. 16. D.S. Ashaev The role of the President and the Government of the Russian Federation in the exercise of executive power. Dis. cand. jurid. sciences. M., 2003.

199 Vadim Ipatov – Director of the National Centre of Legislation and Legal Research of the Republic of Belarus

PRELIMINARY CONSTITUTIONAL CONTROL IN THE REPUBLIC OF BELARUS AND THE REPUBLIC OF KAZAKHSTAN

udicial constitutional control has more than 200-year history. Consistent and continuous development of the institute emphasizes the importance of the Constitution as an act establishing the legal founda- Jtion of any state. In the message of the Constitutional Court of the Republic of Belarus was rightly emphasized “On condition of the constitutional legality in the Republic of Belarus in 2013», «The Constitution is the basic Law of the state and a life-giving basis of the national law: its principles and norms carry out the organizing basis, provide for the unity, interdependence, balance and harmonious development of all components of the legal system» [1]. In the post-Soviet states the constitutional control gained a widespread currency, it has become an integral part of the political and legal systems. The world practice shows that the verification of the constitutionality of the normative acts r can be carried out in different legal forms. However, the activity of the specialized authorities of the constitutional control is the most effective in terms of providing the leadership and direct effect of the Constitution. In this regard the authorities of the constitutional control are reasonable called as «an immune system of the State». Creation of the constitutional control authorities, vesting them with the authority, determination of the order of application, range of the authorized entities, as well as place of the constitutional control authorities in the system of the legal acts are carried out on the basis of social and historical, political and legal, and national characteristics and traditions.

200 The constitutional control authorities assist in the development of constitutional values, practical approval of constitutional legality. The core of this is in providing for stability and the leadership of the Consti- tution, protection of the rights and freedoms of а man and citizen, the realization of the concept of separation of powers, the hierarchism of legal norms. The judge of the Constitutional Court of the Republic of Belarus V.V. Podgrusha notes that « the constitutionalization of social relations is carried out by means of the approval of the Constitution leadership of the Republic of Belarus, the constitutional values in the rule-making and law enforcement and the regime of constitutional legality is established, in which the state and all its bodies and officials, as well as citizens act on the basis and in accordance with the Constitution of the Republic of Belarus and the right as a major social control regulator provides for the goals achievement and solution of the problems defined by the Basic Law of the State» [2]. Constitutional control: nature, concept, types Until the present time in the science of law there was no a unified approach in determining the nature and concept of the constitutional control. This is due to the complexity of this institution, its individual national and legal nature. An important place in scientific works on constitutional law has a definition of this phenomenon on the basis of the category of legal safeguard (protection) of the Constitution. This category in its content synthesizes different legal arrangements by means of which the various subjects provide for the Constitution leadership, the identification of unconstitutional acts, as well as the adoption of such acts. The legal (juridical) protection of the normative legal act, having the highest legal force means, in particular, «a system of legal arrangements established by the State and ensured to provide for realization of the will of all the people in the Basic Law, to guarantee the proper realization of all constitutional norms, to create the conditions for achievement of the desired social effect «[3, p. 8]. It should be noted that such approach to the constitutional control is in demand not only in theory but also it is implemented in the national legislation of a number of modern states. However, the interpretation of the legal protection of the constitution does not exhaust the meaning laid in the institute of the constitutional control. The constitutional control authorities are rendered as an integral component of the mechanism of separation of powers, an element of the «checks and balances». However, there are «two kinds of connection: on the one hand, the separation of powers is the cause of constitutional control, and on the other - this principle cannot be realized by itself without effective constitutional control» [4, c. 101]. However, scientists disagree on the issue of the place of the constitutional control in the system of separation of powers. The controversy around this issue was during a long time and has not stopped until the present. One of the most popular points of view is that the constitutional control has a relation to the judicial branch. Many scientists based on the fact that the constitutional courts should be referred to the judicial branch, regardless of where they are placed in the text of the Constitution and without reference to a specific model of the constitutional control [5, p. 10]. Another position is based on the relation of the constitutional control to an independent branch of state power - namely, control [6, c. 47], or control and supervision. Accordingly, the constitutional control is rendered as a special kind of state control activity with the predominance of jurisdictional ways and means to ensure the leadership and direct effect of the Constitution. As the G.A. Vasilevich notes, «we can argue over the belonging of the Constitutional Court to the judicial authorities, relating it to a specific set of government agencies - control and supervision», but there is no doubt that the constitutional control authorities are intended to carry out a specific control function, «aimed at ensuring of the Constitution leadership in a hierarchical abidance of all other normative acts» [7, p. 46, 69]. There are also supporters referring the constitutional control to the superstructure that does not belong to any of the branches of state power [8, c. 40]. The constitutional control can be classified on the following criteria: at the time (depending on the time of examination - before the entry into force of the act or after) constitutional control can be preliminary (preventive) and subsequent;

201 at the place the constitutional control can be internal or external. Internal control is carried out by the authority issuing the act. External control often is subsequent because the unadopted acts are not under external control, but it also can be a preliminary; from the point of view of the legal consequences the constitutional control can be consultative and resolved. The resolved has a legal force and involves the compulsory recognition or non-recognition of the act by the corresponding to the Constitution; by compulsion of carrying out constitutional control can be compulsory and non-binding; in form constitutional control can be abstract (without regard to the particular case) and specific (or individual). Abstract and specific control has differences in the subject, object, form, procedure, legal consequences; in extent constitutional control can be complete and partial; according to the content the constitutional control can be formal and material. The first one raises the question of an appropriate form of the act publication, while the second – of the relation of the act to the provisions of the Constitution; on relation to the authorities carrying out the control, it can be centralized and diffuse; on the subject of examination: the laws, regulations, international treaties and acts of the judiciary may be subjected to the constitutional control. Models of constitutional control In the post-socialist countries, in Western Europe the most popular model is the model of specialized authorities of the constitutional control. Institute of the specialized judicial constitutional control is provided for the basic laws of fourteen of the fifteen former Soviet republics (with the exception of the Constitution of Turkmenistan). In twelve countries, including Belarus, this is – a constitutional court, in Kazakhstan - The Constitutional Council, in Estonia - the judicial panel of the constitutional control in the structure of the highest judicial body of general jurisdiction - the National Court. Due to the different legal and political contexts in the world practice the following basic models of the constitutional control appeared and gained their development: 1) American (or traditional) 2) European (sometimes in the literature referred to kelzianskaya, named after its creator G.Kelzen) 3) mixed. Each of these models has institution, functional and jurisdictional differences due to the specifics of the national legal systems [9, c. 36]. The difference of the American model is a control by all courts, the subsequent and specific criterion of the control. In the framework of this model, every court or judge is entrusted with checking the compliance of acts with the Basic Law. Thus, the function of the constitutional control is carried out by all courts in addition to their basic function – consideration of civil, criminal and administrative cases. The system of the constitutional control in the framework of this model is decentralized. Anyone who has the right to appeal to the court can be the subject of recourse. Because of the decentralization this model is characterized by uncoordinated actions of the courts and the diversity of judicial practice, which may contribute to «incoherence» of the constitutional control. As Belarus and Kazakhstan, as well as all the former Soviet republics (excepting Turkmenistan), embraced the European model of the constitutional control and the doctrinal approach on which it is based, it is necessary to characterize the European model in details. As was fair said by G. Kelsen, the Constitution is the basic, the most important law of the country, from the content of which there are appeared the other laws, because of this in order to provide for maximum stability of it there is a need for a special, separate system of control. In contrast to the American model, the European model provides the specific constitutional control along with the abstract control (carried

202 out in the «American model» in the context of the system of courts of general jurisdiction). We cannot agree with the fact that in the terms of the continental system only one authority in the country exercising the constitutional justice has the right to guarantee the constitutionality of the adapted acts. The authorities of the constitutional control have a monopoly on the verification of compliance with the basic law ensuring the unity of jurisprudence. The goal of constitutional control is to check the legal acts on compliance with the Constitution. This model is represented by the constitutional courts and the constitutional Councils. For example, in Belarus, Russia, Germany there are the courts, at the same time in France, Kazakhstan - the Councils. The Constitutional Councils are quasi-judicial bodies, performing the same functions as the constitutional courts. Traditionally, the main difference between the courts and the Councils is in the order of formation (in the Councils the members are appointed by various bodies, rather than sometimes are elected by one and sometimes several bodies), as well as in the procedure of the proceedings in the cases (in the Councils there is usually closed, based on the written production, and not a public procedure) [8, p. 38-39]. The control of norms in Europe is initially abstract: the constitutional judges do not consider any specific cases excepting the based on the general approval of the unconstitutionality of a law [10, p. 52]. The incoherence with the circumstances of a specific case gives grounds for the conclusion of legal objectivity and impartiality of the constitutional control. The specific nature of the constitutional control authorities is shown in the status of judges, exercising the constitutional justice. In the most countries, in relation to which we can speak about a specialized or non-specialized constitutional justice, there is no institution of lifelong appointment of judges. Judges are appointed for a fixed term (twelve years in Germany and Austria, nine years in France, Italy and Spain). The model of the constitutional control in Kazakhstan, in the similarity with the French, has some differences, including the procedure for appointment, composition, powers, the applied procedures, method of the proceedings of cases. Kazakhstan filled Institute of the constitutional control with specifics, which is shown in the order of formation of the Constitutional Council (the number of members, the requirements to the Counsels) and its competency. Mixed (hybrid) model of the constitutional control combines the individual elements of the American and European models or involves the organizational and procedural indication of powers in the sphere of the constitutional control within the jurisdiction of the courts of general jurisdiction (the most frequently, the highest judicial body). Peculiarities of the preliminary constitutional control As was mentioned, at the time of application the constitutional control can be preliminary and subsequent. In the preliminary constitutional control the checking of act is carried out before its entry into force, until the promulgation of the head of a state, in the case of the constitutionality of laws. The preliminary control always has an abstract character. The advantages of the preliminary control: - a preliminary clarification of the issue on the constitutionality of a normative act, which is the key in the stability of the legal system; - an assistance in the most efficient work of the legislator and increase of its authority; - a final and authoritative decision on the constitutionality of these commitments before the ratification of the international treaty and the adoption of the international obligations by the state Disadvantages of this form of control are: - Often the potential consequences of the normative acts cannot be fully identified at an early stage. At first view, the law looked like a constitutional or some of its provisions during the application can prove itself as unconstitutional, when there is an issue concerning the conflict of the specific interests [11]; - The urgency of the making decision on the constitutionality of the law (often containing hundreds of

203 articles) during one or several weeks makes the work of the relevant authority difficult, but this is due to the need of a quick reaction to the settlement of many relations. Preliminary constitutional control: the experience of Belarus In accordance with the Concept of judicial reform, approved by the Parliament in April 23, 1992 the Con- stitutional Court is a body which should provide for compliance with laws and other normative legal acts of the Constitution and the international legal obligations of the state, interpret the provisions of the Constitu- tion of Belarus. It was established almost immediately after the adoption of the Constitution of the Republic of Belarus on the thirteenth session of the Supreme Council of the twelfth assembling. The activities of the Constitutional Court started from the second half of 1994. In accordance with the Constitution of the Republic of Belarus, adopted in March 15, 1994, the Consti- tutional Court was in fact related to the control and supervisory authorities. In the working group prepared the text of the Constitution was expressed an opinion concerning the possibility to give the name of Consti- tutional Control Committee or the Constitutional Council to the future authority of state control of the constitutionality of acts. The legal status of the Constitutional Court was changed in the result of amendments and additions to the Constitution in 1994, adopted on the national referendum from November 24, 1996. The Constitutional Court of the Republic of Belarus is included in the chapter «Court» of the Constitution of the Republic of Belarus. The basis of the legal status of the Constitutional Court was defined by the Article 116 of the Constitution [12]. As was fair said by the Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, «the place of the Constitutional Court of the Republic of Belarus in the system of state power has changed, as well as its powers, but its function– providing for the leadership of the Constitution and its direct action, protection of the constitutional values, human rights - remained unchanged” [13, p. 183]. The legal status of the Constitutional Court is determined by the Constitution of the Republic of Belarus, the Code of the Republic of Belarus on judicial system and status of judges, by the Presidential Decree the Republic of Belarus from June 26, 2008 № 14 «On some measures to improve the functioning of the Constitutional Court of the Republic of Belarus» (hereinafter - Decree), by the Law of the Republic of Belarus «On Constitutional Proceedings» from January 8, 2014 № 124-W, by the Regulations of the Constitutional Court of the Republic of Belarus, approved by the decision of the Constitutional Court of the Republic of Belarus from April 8, 2014 number P-916/2014. In general, the Constitutional Court, the President of the Republic of Belarus, the House of Representatives of the National Assembly of the Republic of Belarus, the Council of the National Assembly of the Republic of Belarus, the Supreme Court of the Republic of Belarus, the Council of Ministers of the Republic of Belarus in accordance with Article 116 of the Constitution has the right to make a proposal on review the constitutionality of normative acts. The Constitutional Court makes the conclusions: On the compliance of laws, decrees, presidential decrees, international treaties and other obligations of the Republic of Belarus with the Constitution and international legal acts ratified by the Republic of Belarus; on compliance the acts of interstate formations included the Republic of Belarus, presidential decrees issued for execution of the law, with the Constitution, international legal acts ratified by the Republic of Be- larus, laws and decrees; on compliance of the resolutions of the Council of Ministers, acts of the Supreme Court, Supreme Eco- nomic Court, the General Prosecutor of the Constitution, with international legal acts ratified by the Republic of Belarus, laws, decrees and edicts; on compliance of acts of any other state authority with the Constitution, international legal acts ratified by the Republic of Belarus, laws, decrees. The above-mentioned Decree has verified the competence of the Constitutional Court. This act has become a new stage of development of the constitutional justice in the context of preliminary constitutional control giving a binding character to the preliminary control in relation to a number of acts, namely laws and international treaties.

204 The Constitutional Court of the Republic of Belarus is empowered to implement the binding preliminary control of the constitutionality of all laws adopted by the House of Representatives of the National Assembly of the Republic of Belarus or adopted by the Council of Republic of the National Assembly of the Republic of Belarus or adopted by the House of Representatives of the National Assembly of the Republic of Belarus - before the signing of these laws by the President of the Republic of Belarus. The relevant decision should be taken by the Constitutional Court within five days from the date of receipt of the law by the Constitutional Court of the Republic of Belarus. From 2009 to 2013 there 668 decisions were adopted in exercising of the preliminary control by the Constitutional Court of the Republic of Belarus [1]. In 2013, the constitutionality of 111 laws was checked. The decision of the Constitutional Court on the non-compliance of a law adopted by the Parliament of the Republic of Belarus, with the Constitution of the Republic of Belarus, international legal acts ratified by the Republic of Belarus, adopted in the exercise of the binding preliminary control can be the basis for the return of the law the objections to the President of the Republic of Belarus with or signing the law by the President of the Republic of Belarus with objections to single provisions Also, the Constitutional Court of the Republic of Belarus by the preliminary control examines the constitutionality of international treaties of the Republic of Belarus which are not entered into force. At the suggestion of the President of the Republic of Belarus, the Constitutional Court states the position on the constitutionality of international treaties before the signing the normative legal acts expressing the consent of the Republic of Belarus to be bound by these international treaties by the President of the Republic of Belarus. The decision is made by the Constitutional Court within five days from the date of receipt of the proposal of the President of the Republic of Belarus, unless otherwise was not established by the President of the Republic of Belarus. According to the results of this category of cases the Constitutional Court makes an appropriate decision. Regarding the international treaty of the Republic of Belarus which is not entered into force, recognized in accordance with decision of the Constitutional Court as not complied with the Constitution of the Republic of Belarus, the consent of the Republic of Belarus to be bound has not expressed, the normative legal act is not accepted (not published) on expression of consent of the Republic of Belarus to be bound by such international treaty. Regarding the international treaty of the Republic of Belarus which is not entered into force, recognized in accordance with decision of the Constitutional Court as not complied with the Constitution of the Republic of Belarus, the consent of the Republic of Belarus to be bound by it has already been expressed by the state body, which competency has the relation to the issues in the international treaty, there should be accepted the measures provided for the legislation and international law on the termination of the Republic of Belarus participation in such international treaty, but in a case when the Republic of Belarus is interested in the participation in such international treaty there should be accepted the measures provided for the international law on making the necessary amendments and (or) additions. In a case, if the international treaty of the Republic of Belarus which is not entered into force, recognized in accordance with decision of the Constitutional Court as not complied with the Constitution of the Republic of Belarus, is temporarily applied by the Republic of Belarus in accordance with the legislation and international law, the temporarily application of it shall be stopped. Obligatory preliminary control of the constitutionality of laws adopted by the Parliament before the signing by the President of the Republic of Belarus is aimed at realization of the law leadership and the approval of the constitutional legality in the spheres of legislation and law enforcement. The application of the control on the stage after the adoption of laws by the Parliament and before signing by the President of the Republic of Belarus «allows the Constitutional Court as the judicial authority not interfere in the powers of the legislative power» [13, c. 186]. Preliminary constitutional control has a positive impact on improving of the lawmaking constitutionalization because by the decisions and legal positions the consolidation and development

205 of the constitutional values and principles in the norms of the verified laws are determined, the meaning of certain norms and laws for the purpose of a clear understanding and uniform application is revealed and on the basis of the balance of constitutional values the admissibility and proportionality of restrictions of the rights and legitimate interests of citizens are determined. Verification of the constitutionality of a law adopted by the Parliament of the Republic of Belarus, in the exercise of obligatory preliminary control, does not prevent the verification of the constitutionality of this law in order of the following control after its entry into force. Such an interpretation of the constitutional control of the Republic of Belarus in the law and in practice allows provide for the leadership of the Constitution fully and comprehensively. In the national legal literature there is an opinion on the need to provide for citizens the right to appeal to the Constitutional Court for the verification of the constitutionality of the laws adopted by the Parliament, in other words to regulate the institute of the constitutional complaint. Currently, citizens’ access to constitutional justice is carried out in the Republic of Belarus not directly, but indirectly - through authorized entities who have the right to submit proposals to the Constitutional Court. In the opinion of I.I. Plyahimovicha, the preliminary constitutional verification «excludes the institute of the constitutional complaint because it involves assessing of acts (of projects) that have not yet been published and, therefore, are not known to civil society» [14, c. 88]. We believe that the opportunities of the subsequent control together with preliminary constitutional control provide for the resolution of any conflicts, and, therefore, reduce the problem of discussion in negotiating the need for a constitutional process in the institute of the constitutional complaint. Preliminary constitutional control: experience of Kazakhstan The starting point for the creation of constitutional control in the Republic of Kazakhstan is the Constitu- tional Law of the Republic of Kazakhstan from December 16, 1991 «On the State Independence of the Republic of Kazakhstan», in accordance with Article 10 of which «the highest judicial protection of the Constitution is the Constitutional Court of the Republic of Kazakhstan.» In 1995 the Constitutional Council which is a specialized body of the constitutional control was approved in Kazakhstan. It was based on the French constitutional-legal doctrine. The body of the constitutional control established in Kazakhstan «is not just based on the French model, but with using of all possible «flexibility» of the quasi-judicial body of constitutional justice which is appropriate to this model in its original -»Gaullist «- interpretation» [15, p. 34]. The legal status of the Constitutional Council is defined by the Constitution of the Republic of Kazakh- stan, the Constitutional Law of the Republic of Kazakhstan from December, 29 1995 «On the Constitutional Council of the Republic of Kazakhstan» and others. In contrast to its predecessor, the Constitutional Council has received a number of new powers, including the right to an official interpretation of the Constitution, and the right to carry out the preliminary control, etc. State authorities, excepting the courts, public associations, local representative and executive bodies, as well as citizens have not the right of direct appeal to the Con- stitutional Council. In general, the Constitutional Council stimulates the constitutional process on the appeals of persons and bodies recognized by the participants of the constitutional process. Those include: the President; Chairman of the Senate of Parliament; Chairman of the Mazhilis of the Parliament; no less than one fifth of the total number of deputies of the Parliament, Prime Minister; state authorities and officials, the constitutionality acts of which is verifying; the court of any authority, if the proceedings come to a conclusion of non-compliance of the applied Constitution Act. The Constitutional Council is entitled to carry out a preliminary (preventive) control of laws adopted by the Parliament, but which are not signed by the President, as well as international acts signed by the Presi- dent, but not ratified by the Parliament. In accordance with Article 72 of the Constitution of the Republic of Kazakhstan the Constitutional Council by appeal of the President of the Republic of Kazakhstan, the Chairman of the Senate, the Chairman of the Mazhilis, not less than one fifth of the total number of deputies of the Par-

206 liament, the Prime Minister: consider the laws adopted by the Parliament on their compliance with the Con- stitution of the Republic before signing by the President; consider the international treaties of the Republic on their compliance with the Constitution before the ratification [16]. If the previous system of the constitutional control which is carried out by the Constitutional Court of the Republic of Kazakhstan provided for the possibility of only subsequent control in relation to the normative and legal acts, but today, the Constitutional Council is entitled to carry out the preliminary control, in other words, to consider the laws adopted by the Parliament before their promulgation. The Constitutional Council is entitled to carry out both the preliminary and subsequent constitutional control. Currently, the Constitutional Council of the Republic of Kazakhstan is not associated with the judiciary. In the scientific literature the Constitutional Council refers to the control branch of power. [17] Some researchers refer the Constitutional Council of Kazakhstan to the bodies of the constitutional supervision, not control, for the reason that the decisions of this body are not final and may be subjected to veto by the President. The Constitutional Council is established in such a way in order to «maximize the benefits of combining with different types of the constitutional control, including preliminary, subsequent, abstract and specific, as well as rational using of universal compulsory of final decisions with an opportunity to determine the mechanism of their implementation» [18, p. 32]. As advantages of the preliminary constitutional control of the Republic of Kazakhstan is considered “the opportunity of quickly prevention violations of the constitutional legality, contributing to the stability of the legislation; solving the problem of the cancellation of a number of legal acts specific for the subsequent constitutional control that allows to save the prestige of the legislature» [19]. Conclusions Belarus and Kazakhstan have their own unique experience of study and practical development of the institute of the constitutional control. Our countries are integrated with the European model, based on their own legal realities. The constitutional control appeared in Belarus and Kazakhstan approximately at the same time. After a certain evolution, the preliminary constitutional control has a real impact on social processes, strengthening of constitutional legality, sustainable development and extension of democratic processes. Common historical path, the proximity of state legal systems of Belarus and Kazakhstan allow making a conclusion, that the practice of the preliminary constitutional control of our countries is very similar in content, despite the historical, legal features of the legal status of the body carrying out it. The practical activities for carrying out of the compulsory preliminary control in the Republic of Belarus and in the Republic of Ka- zakhstan indicates the demand for this institution, its significant role in the carrying out of the principle of leadership of the constitution, a comprehensive rule of law. Constitutional justice in the Republic of Belarus and in the Republic of Kazakhstan is gaining more and more power and authority concerning the issues on the protection of the legal state principles, providing for the direct and immediate action of the constitution. At the same time, providing for the leadership of the constitution in law-making and law enforcement practice, the establishment of a common legal space within the Eurasian Economic Union assigns the new tasks for the bodies of constitutional control. Thus, the legal reality of the development of integration processes in the Eurasian region actualizes the possibility to consider the issues on compliance of acts of integration structures of the constitution with international legal treaty obligations.

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208 Aleksandr KOROBEEV – Head of the Department of Criminal Law and Criminology of the Law school of the Far Eastern Federal University, Honored Worker of Science of the Russian Federation, Doctor of Law, professor

CONSTITUTIONAL AND LEGAL BASIS OF THE REFORM OF THE CRIMINAL LAW: FROM KAZAKHSTANI PRESENT – TO THE RUSSIAN FUTURE

he Constitution of the Republic of Kazakhstan from 1995 (with subsequent amendments and additions), as a fundamental principle, declared the priority of interests of a person. In accordance with Article 1 of Tthe Constitution a man, his life, rights and freedoms are the highest value. This principle formed the basis of the criminal and law policy. The directive sets on which should be based the criminal and law policy and criminal law of Kazakhstan can be found in a number of other provisions of Kazakhstan. The most important of them: the right for life, health, personal freedom, privacy, personal and family secrets, protection of honor and dignity, freedom of conscience, the equality of all people before the law, and others. The real protection of these rights and freedoms are guaranteed by the different branches of law, including the criminal. The specifics of the criminal law protection of the individual is that with the help of criminal repression, firstly is carried out a protection of the most valuable personal benefits and, secondly, from the assaults. Considering the mentioned and a number of other fundamental provisions of the Constitution of the Republic of Kazakhstan in 2014 in Kazakhstan was held a global and systemic reform of the criminal law. The undoubted positive aspect of the reform was the fact that it was preceded a development of a single national concept of the criminal state policy by the forces of lawmakers and law enforcers (with the participation of the scientific legal community). And only after that on its basis were adopted (and «in package») the following: absolutely new Criminal, Criminal Procedural and Criminal Executive Codes of the Republic of Kazakhstan as well as the Code of administrative violations. Such an approach allows “to synchronize» many provisions of the substantive criminal law with procedural, criminal executive with administrative law, to resolve differences and collisions between the mentioned branches of law, to get them in a single, internally consistent and balanced system.

209 A distinctive feature of the modern Kazakh criminal law is that the new Criminal Code of the Republic of Kazakhstan (after the Constitution of the Republic of Kazakhstan) in the hierarchy of protected values in the first place does not put the state and society (as it was in Soviet times) but a personality. Starting the Special Part of the Criminal Code of the Republic of Kazakhstan in 2014 with the chapter «Criminal offenses against the person», the legislator thereby clearly emphasized that the priority is given to the protection of interna- tionally recognized human value system [1]. The remarkable fact is that the subject of the reformed Criminal Code was not limited only by the norms - prohibitions. It includes also the incentive norms stimulating the positive post-criminal behavior. These norms, for example, include the notes to the Articles 125, 175, 182 of the Criminal Code of the Republic of Kazakhstan. These notes include the provisions under which a person committed a criminal offense will be exempt from the criminal liability. A distinctive feature of modern criminal law of Kazakhstan is also that the interpretation of the categories used in the Code is not carried out in the notes to the articles of the Special Part (as before), but in the Article 3 of the General Part of the Criminal Code of the Republic of Kazakhstan. It reveals the meaning of the concepts such as severe consequences, the gang, other mechanical vehicles, a representative of the authorities, an official, stealing and other. Such legislative approach improves the quality of the normative material, allows giving in a systematic way an official interpretation of the terms found in the Code, as a consequence, it leads to a uniform application of the criminal law in practice. The last two types of norms do not reflect yet the full specifics of the criminal law, and carry out not protective but regulatory, and even, in a sense recovering (incentive norms) functions. However, the increase of the number of such norms in the Criminal Code of the Republic of Kazakhstan indicates that the legislator set a course to expand the functionality of the criminal law, strengthening its non-repressive starts. The same was reflected in the fact that the legislator in the newest Criminal Code of the Republic of Kazakhstan differentiated the concept of a criminal offense, dividing it into a crime and a criminal offense, and combining them with the term «criminal violation». The specific of the criminal law policy of the state, at the present stage of its historical development is reflected in the norms of the reformed criminal law in the most concentrated form. A distinctive feature of Kazakhstan’s criminal law policy of recent years is the trend towards differentiation of criminal repression. In the result of an objective and natural process of the constant development, a change and improvement of social structures, the emergence of new social relations, there is a need for criminal-law protection of some of them. Such protection is provided for carrying out of the criminal consequences of the actions that could cause harm to emerging public relations. This tendency reflects the dynamism of the principle in criminal law. This principle requires constant observing of changes in the system of social relations and timely reflection of them in the law. The need for criminal-law protection of the new social relations is caused by different reasons. The extension of the constitutional rights and freedoms of citizens requiring the appropriate legal and criminal law protection can be a starting point for criminal-law prohibitions. For example, in the Part 1 of the Article 18 of the Constitution of Kazakhstan is guaranteed a right for privacy, personal and family secret. After it in the Criminal Code of The Republic of Kazakhstan appeared Article 147. (Violation of the privacy and the law of the Republic of Kazakhstan on personal data and its protection). The need for criminal legal regulation may be caused by the appearance of extreme conditions (the military situation, the aggravation of the international situation, economic complications, etc.). As the reaction of the legislator to aggravation of the international situation may be considered the establishment of the responsibility for the attack on individuals or organizations having the international protection in the Criminal Code (Art. 173). The need for protection of the criminal law may arise in connection with the development of scientific and technical progress (STP). It is known that STP brings humanity not only one good, it is often accompanied by costs of technical and social nature. Negative consequences can be neutralized in different ways, including the regulation of social relations emerging in the criminal law. The need to confront with the negative

210 consequences of scientific and technical progress in the recent past has created such systems, as a group of transport crimes, crimes involving the use of radioactive substances, some criminal encroachments on the natural environment, and computer crimes. In the newest Criminal Code of Kazakhstan public relations in the field of protection of human life and health (Art. 129 of the Criminal Code - Human cloning), medicine (Art. 318 of the Criminal Code - Violation of procedure for the conduct of clinical research and application of new methods and means of prevention, diagnosis, treatment and medical rehabilitation), space (Art. 282 - Viola- tion of safety rules in carrying out of space activities) were placed under the protection of the criminal law. Thus, at the present stage of development of criminal law policy the need for adopting new and expanding the boundaries of the existing criminal law is not completely excluded. Moreover, this process should be seen not as a series of episodic events but as a certain trend. The significance of the reformed Criminal Code of the Republic of Kazakhstan is that in its norms was found a final realization of the principle of legality. According to this principle, firstly, the act of criminality as well as its punishability and other criminal law consequences are determined only by the Criminal Code, secondly, the application of the criminal law by analogy is not permitted (Art. 4 CC RK). This means that out of and in spite of the Special Part of the Criminal Code cannot be norms included the essential elements of a specific criminal offence and applied to the persons committed this offence. If now to compare the strategy and tactics of the fight against crime in Kazakhstan with a similar situation in Russia, we can see the following picture. The current state of the criminal law policy of Russia is characterized by, firstly, the absence of clearly formulated and adopted at the appropriate level of conceptual bases of state policy in the sphere of fight against the crime in general; secondly, the presence of certain ideas, certain ways in the development of strategies and tactics of fight against the crime, spontaneously occurring directives that come from the authorities and very contradic- tory and inconsistent implemented in reality; thirdly, destruction and desystematization of the criminal law, which became the result of an endless number of amendments and additions made by the legislator of the Criminal Code. According to the opinion of the majority of national lawyers, the modern Russian criminal policy experiences, to put it mildly, the symptoms of the crisis [2]. There are especially evident deficiencies of the criminal law policy in the sphere of law-making. At the present time, there were made about one thousand amendments to the Criminal Code of Russia. This means that some amendments were made to some articles of the Criminal Code repeatedly, and in some - five or six times. Sometimes the amendments to the Criminal Code from the Russian parliament were made in a continuous succession. Of course, such work of our legislators affected the quality of the Criminal Code. From the original complete and systematic act, it turned into a kind of patchwork quilt, filled with internal contradictions, it also became include absolutely unnecessary norms. Thus, today we can see an artificially constructed new Criminal Code, completely deprived of Scientific, Criminology, Political or any other justification, mixed on the political situation, the pathological striving to achieve short-term goals by any means, an absolute disregarding of the opinions of professionals. The new criminal law very often contradicts himself, breaks all the rules of codification, makes the right (legal) qualification of crimes impossible, uses the unknown concepts and phrases, ignores the elementary consistency and logic in the presentation, etc. All this facts real and objectively reduce the effectiveness of the criminal law, impedes the fight against the crime. The situation is deteriorating every day. At present time in Russia there is an imperative need for an urgent change of the current situation. It seems that starting, key points should be the development, adoption and consolidation of the basis of policy of the modern state of Russia fighting against the crime in the appropriate normative document of the conceptual basis. Without the creation of such conception the criminal law policy of Russia cannot be brought out from the anabiosis, cannot be overcome the development arrest. The lack of conceptual basis of strategy and tactics of the fight against crime will continue to condemn us to observe the legislative clowning of turning the Russian Criminal Code in a completely unsystematic conglomerate covered with the law, but divorced from science and life, ideas and fantasies of its designers [3].

211 The optimistic fact in this regard is that at the initiative of the Public Chamber of the Russian Federation in purpose to develop a draft of a concept of criminal law policy in December 2011 was established an expert working group to assist in the justice reforms at the Commission on public control over activities and reforming of the law enforcement and the judicial system. A draft of this concept was developed and published by the Partici- pants of this group [4]. It was subjected to a comprehensive analysis on the VII Congress of the Russian criminal law «Modern criminal policy: the search for the optimal model» (Moscow, from May 31 to June 1, 2012), and also in the main report of the plenary. [5] In general the concept was highly appreciated by the participants of the Congress. There in the Congress resolution was a recommendation to adopt the draft in the form of federal law. At the same time, as the wishes to the initiators and developers of this draft was made the following recommendations. At the present moment, in the «development» was included only one direction of the criminal policy - criminal law. The other parts (components) of a uniform system named as «criminal policy of Russia» - criminal procedural, criminological, prison policy - still remain «unattended». It seems that no matter how perfect was the model of one of the components of a whole mechanism (in our case - the concept of criminal law policy), without other components of this mechanism (brought to the same perfection), the mentioned above system will not work effectively. The other researchers also paid their attention to this fact [6]. Moreover, there is a negative example of such disagreement. It refers to the Concept of the development of a criminal execution system of the Russian Federation before 2020 approved by the Decree of the Government of the Russian Federation from October 14, 2010 № 17772-p [7].Even at the development stage of the draft of the Concept many of its provisions have been criticized. Among the other was criticized the fact that the Concept, developed by the authorities, is not justified economically, and in proper measure is not based on scientific data, including - the results of the All Russian census of the convicted to imprisonment on judicial practice in 2009. The concept impending raised the issues fixed in the Criminal Code of the punishment system and criminal judicial policy, however, the legislators, the representatives of the General Prosecutor’s Office, of the Supreme Court, of the Ministry of Internal Affairs were not involved in the immediate development of the draft of the Concept. In the result, many of its substantive provisions remain unrealized, and its acceptance as evidenced by the statistics, almost did not have any impact on the jurisprudence [8]. In short, the development and the realization of this concept were held in the Russian classical traditions because «criminal executive wagon» was ahead of «the criminal law horses.» That is why a positive example (and also a role model) is an approach shown by Kazakh specialists in the development process of their first single national Concept of criminal policy of the state, and then the realization of the ideas in the legislation of the existing areas of the criminal cycle. But that processes for Kazakhstan has already become real for Russia is a distant future.

REFERENCES: 1. Kazakhstanskaya Pravda. July 9, 2014. 2. A.I Alekseev., V.S. Ovchinsky, E.F. Pobegailo Russian criminal policy: overcoming of the crisis. M., 2006; N.A. Lopashenko Criminal policy. M., 2009; M.M. Babayev Y.E. Pudovochkin Problems of the Russian criminal policy. M., 2014. 3. Y.V. Golik A.I. Korobeev Reform of Russian criminal law: to be or not to be // LexRussica. 2014. №12. S. 1399-1408. 4. M. Babayev, Y. Pudovochkin Concept of the criminal law policy of the Russian Federation // Criminal Law. 2012. №4. 5. A.I. Korobeev Criminal Law Policy of Russia: from early bright to stagnation // Modern criminal policy: the search for the optimal model: Materials of the VII Congress of the Russian criminal law. p. 109-115. 6. A.V. Malko Theory of Legal Policy. M., 2012. p.310-312; The concept of law enforcement policy in the Rus- sian Federation (draft). Saratov 2012. 7. Art. Law of the Russian Federation 2010. № 43. Art. 5544 8. V.A. Utkin Alternative sanctions in Russia: condition, problems and prospects. M., 2013. p. 15; A. Korobeev Ladder of criminal penalties in Russia: concept, classification and types. Saarbrucken, LAPLAMBERT AcademicPublishing, 2014. P. 532-534.

212 Mukesh kumar mishra – Central Asia Area Studies Programme Centre for Inner Asian Studies, School of International Studies, Jawaharlal Nehru University (Republic of India)

State of Democracy and Constitutional Development in Contemporary Kazakhstan

Introduction Being located in the center of Eurasia, Kazakhstan has long been at the intersection of ancient civilizations of world and at the crossroads of major transport arteries. Thus it has been a site for a negotiation of social and economic, cultural and ideological relations between East and West, North and South, between Europe and Asia. At different stages in history, Kazakhstan has been home to many nations with distinctive cultural histories which have, in turn, been absorbed into modern Kazakhstan.

Democratization Process in Kazakhstan Kazakhstan can take pride of certain achievements, which became possible without the bloody chaos and a civil war. Possessing abundant hydrocarbon resources and buoyed by high oil prices, Kazakhstan’s economy has outperformed its regional competitors President Nazarbayev several years ago identified seven fundamental elements of democratization and political liberalization which are necessary for political reform in Kazakhstan: 1. The electoral process must be honest, representative and encourage the fullest participation of candidates and voters. Free and fair elections are at the heart of any democracy and Kazakhstan should be no exception. Quoting a popular proverb Nazarbayev argues that “The people seldom speak but when they speak they never make mistakes». Elections are the manifestations of people’s verdict. Our goal should be clear: to make the upcoming national elections a model for free and fair elections. According to Nazarbayev Kazakhstan should develop “a comprehensive step-by-step programme of election of leaders at all levels”.

213 2. The second major element underlined by the President in political democratization package is the strengthening of the role of parties in the country’s political system. Political parties are the basic building blocks of democracy, and, the need of the hour is to help them grow and develop. The President also encour- ages international groups, and Non-governmental Organizations, to come to Kazakhstan to educate and train the political parties. Calling upon all parties, regardless their political orientation, he urges them to respect and preserve political and inter-ethnic stability in the country as the future of the State system and democracy depends on this. 3. For stability and succession of power in Kazakhstan strengthening and providing autonomy for Majilis and Senate seemed appropriate to the President. The President believes in the greater responsibility of the Parliament to build up a responsive government in the coming years. Representation by political parties according to proportional representation will make the Majilis better reflect the full spectrum of political views in Kazakhstan .The President proposes that to ensure representation of a broader range of ethnic and religious minorities of the country in Parliament, some of the Presidential appointees to the Senate shall be from candidates recommended by the People’s Assembly. 4. A key element of democratization is recognized as strengthening the role of Non-Governmental Orga- nizations in building a civil society. A democratic structure does not in itself guarantee a democratic society. Democracy depends on private voluntary institutions which allow citizens to be politically involved, aware enough to volunteer their services, and express their grievances to advocate their interests. To ensure that civic groups can operate freely, the Ministry of Justice is asked to simplify registration and supervision procedures for domestic and international Non-Governmental Organizations who wish to work in Kazakhstan, and encouraging and accelerating operation. 5. The President acknowledged an independent judiciary as the pillar of a democratic society. An autonomous judicial system is absolutely necessary that decides issues on their merits and is free from corruption. Training process of judges should be improved. Vigorous enforcement of the recently enacted Anti-Corruption Law was stressed. It is also pointed out that the Higher Judiciary Council should not be headed by the Presi- dent. 6.. Nazarbayev emphasized the building of free, uncensored and independent press. According to him the Government should consider the free access of journalists to information not as a favor of the Government but as its commitment to public opinion. The work to remove any remaining impediments to a free press from the nation is accorded importance. Privatization process of many state publishing houses and the availability and increase in the number of independent mass media means the growth of openness in society. 7. The progress of the society can be measured by its attitude to women. The President therefore intends to increase the role of the Council on Problems of Family, Women and Demographic Policy or reorganize it into a Special Commission on women issues. It must become a Chief Advisor both to the President and the Govern- ment in solving important problems pertaining to this sphere. It is necessary to increase women’s representation in all branches of authority. This is a question of social equality. President Nazarbayev insists that his observations are based on survey of the situation in his country and the world scenario. He expressed his belief that “Only a free democratic society will be a guarantor of our stable and happy life in the near future. My nation deserves freedom in this terrible and bloody century.”

Constitutional Development Constitution is described as a document or set of “documents, which lay down the framework of a political system.” Constitution also defines the very essence of the political system in some cases. In states, which are undergoing a process of a political change, Constitutions symbolize a transition from the old to the new, and set new goals and aspirations. The first Constitution of the independent and sovereign Republic of Kazakh- stan was adopted in January 1993. The Constitution of the Kazakhstan Republic, which established Presiden-

214 tial form of government, describes Kazakhstan as a “democratic, secular and unitary state”, with emphasis on democratic principles. Life, liberty, and the inalienable rights of the individual are held in high value. Citizens are guaranteed basic civil liberties including freedom of thought, expression and speech, freedom of media and right to receive information, freedom to demonstrate peacefully, and freedom to create public organizations. The citizens of the Republic have the right to property, education and right to professor not to profess any religion. International human rights agreements signed by Kazakhstan have precedence over state law. It also laid emphasis upon establishing the government’s fundamental objective of nation building strategy, also accommodating the aspirations of non-Kazakh population. While Kazakh is the state language, the 1993 Constitution accorded Russian a prominent position as the “language of international communication” and prohibited any limitations on the rights of citizens who do not speak Kazakh. It also prohibited the establishment of any social organization which seeks to forcibly change the Constitutional order and undermine the state security, violate territorial integrity, or promote ‘social, racial, national, religious, class or tribal discord’. The Constitution supplemented the legislation by an absolute ban on any propaganda or campaign directed towards the above aims. The creation of political parties based on religion is not allowed in the Republic. However the constitutional democracy is emphasized. The acting Constitution is second since the epoch of state independence of Kazakhstan and was adopted in August 1995 by a popular referendum. Following the recognition of the Supreme Soviet as illegitimate, it became clear that the new Constitution could be designed at its earliest. Now that the country after the resolution of the Constitutional Court of March 6, 1995 had no Parliament, it was important for the President to get support for his plans directly from the Kazakhstani people. The Assembly of the Peoples of Kazakhstan proposed holding an all-nation referendum on prolonging the President’s plenary powers until 2000. The De- cree of the President of Kazakhstan “On the holding of a republican referendum on 29 April 1995, No.2152”, was published on 25 March 1995, which, in part, reads “Nazarbayev resolved to hold a republican referendum on 29 April 1995 and … to extend until 1 December 2000, the term of office of the President of the Republic of Kazakhstan”. The referendum’s results convincingly demonstrated Kazakhstanis’ support for the reforms being carried out in the country. Soon after the draft was ready, an Advisory Council of Experts was set up by a presidential resolution of 22 May 1995, to analyse it thoroughly. When work on the draft Constitution was almost complete, President Nazarbayev signed the Decree “On the holding of an all-nation referendum on 30 August 1995 on 28 July 1995, No.2389”. Finally, on 30 August 1995, an all-nation referendum was held on adopting the new Constitution of the Republic of Kazakhstan in accordance with the aforementioned Decree. The referendum was observed by around 1,000 representatives from 19 public associations. Also present were foreign observers from Hungary, Egypt, Can- ada, Poland, Rumania, Tajikistan, Ukraine and other countries beside. A total of 90.58 per cent of the voting public took part in the referendum, of which 89.14 per cent voted for the adoption of the new Constitution. The new Constitution of the Republic of Kazakhstan was adopted on the basis of the vote. It was a triumph. The high level of voting was an indication of Kazakhstani citizens’ support for country’s Basic Law. In the words of Nazarbayev: “I felt an immense sense of gratitude. Every politician has his hour of glory when he gets his people’s full support and gains tremendous satisfaction from the fact that he has done his duty. All those years of doubts and anxieties, and sometimes emptiness all around you, when the circle of like-minded colleagues seemed infinitesimally small compared to the huge mass of problems and endless pile of tasks, both great and small you were landed with – all of these now proved not to have been in vain.” The official presentation of the new Constitution took place at the residence of the Kazakhstan’s Presi- dent on 6 September 1995. On this ceremonial occasion the Chairman of the Central Electoral Committee Yuri Kim read out the resolution on the results of the all-nation vote on adopting the new Constitution and presented the original text of the country’s new Basic Law to the President, who, in turn, signed the Decree On

215 the Constitution of the Republic of Kazakhstan. At the same time, in his speech to the assembled Government members, public figures, heads of diplomatic representations and media officials, the President Nazarbayev said that it not only marked the start of a new phase of Kazakhstan’s development, but also it offered a number of new issues to be solved. Having completed these tasks, a number of problems at a constitutional level ere resolved for the political status of the country’s Parliament to be strengthened. In recent years, all the conditions have been created for the development of the most crucial institute of democracy, i.e., parliamentary. The professional bicameral Parliament, providing for the representation of diverse interests, has successfully withstood the test of time, and Kazakhstan has been the first in Central Asia to decisively embark on this course of action. Following the introduction of the 1995 Constitution, Kazakhstan did everything to maintain its reputation on the world map. The overwhelming majority of states in the modern world are multi-ethnic in composition, and one ethnic group makes up 90 per cent of the population in only 12 countries of the world. It is no coincidence that the Kazakhstan model of international relations has won the highest appraisal of the UN, OSCE (Organization for Security and Cooperation in Europe) and a number of other authoritative international organizations. All the key development issues of the national groups have been advanced in a three-tiered regulatory system. The first level consists of the activity of the groups themselves. The country supported the legitimate aspira- tion of all the national communities to further their culture. There are now several dozen national cultural centers in Kazakhstan. A unique instrument of international relations was also created in the Assembly of the People of Kazakhstan. No other country in the world today has a similar authoritative and representative national policy instrument. There is also a state policy in the language sphere. The country has been able not only to confer on the Kazakh language the position of state language, but also to resolve the issue of its full use in all areas of public life. Nowadays teaching in over 50 per cent of the country’s educational establishments is conducted in Kazakh. One should not forget that Soviet national policy had the most destructive consequences for the state language in Kazakhstan. However, unlike many other countries, Kazakhstan went about this process in a dignified manner without any language discrimination. Besides, Political pluralism and a multi-party system are provided for in Kazakhstan. Major national parties operate in the country, including those in opposition, who all have an influence on the political process. There is also no doubt that such a crucial segment of a civil society as non-government organizations has grown noticeably stronger in the country. It is noteworthy that cardinal changes have taken place in the dissemination of information. Freedom to express one’s opinion and criticize the authorities has genuinely been established in the Kazakhstan media, and citizens now have the right to alternative sources of information. The Constitution has laid the foundation for Kazaskhstani people’s freedom and has consolidated all the various successes and acquisitions that brought their independence. The Constitution has given the right to choose and to create one’s own life, which is the most precious gift for all the people of Kazakhstan. On 21 May 2007, President Nazarbayev and Parliament introduced several Constitutional amendments which enhanced the authority of the Parliament. This in turn transformed the republic from presidential to a parliamentary one. Nazarbayev stressed the need for strengthening the Parliament’s role by increasing the number of deputies, introducing new procedures of forming the Government on the principles of parliamentary majority, introduction of proportional election system of deputies to the lower chamber of Majilis, cancellation of the party affiliation of the Senate deputies and many other political innovations. According to the new procedures of forming the Government, Prime Minister has to be appointed by the President after consultations with political parties and by the appropriation of a majority of the Parliament’s deputies. The implementation of such an approach will first of all elevate the role of political parties in forming the Govern- ment. Secondly, the party having a parliamentary majority will be responsible for the formation of the Govern- ment and its consequent actions implementing the program of the winning party or coalition. The President

216 also offered to develop practical mechanisms for partial support of the activities of political parties from the republican budget. The President porposed a reduction of the presidential term from seven down to five years and also that regional governors must be elected with the appropriation of corresponding maslikhats (regional elective entity). In the area of judicial reform, not only legal confirmation of an arrest but also the abolition of the death penalty has been announced in Kazakhstan. It may be pointed out that the Constitution provides for death penalty to those who commit terrorist acts or violent crimes. President Nazarbayev underscored the need for the above stated amendments to the Constitution of Kazakhstan for ushering in a new stage in the democratization of the nation. The task of economic reconstruction undertaken immediately after independence was extremely complex. The Soviet styled planned management of economy was dismantled; government finance and the banking system were reformed and the new currency, the Tenge (KZT) was introduced. Small and middle size businesses and housing were privatized. Foreign investment flowed into the country to develop the rich natural resources. Though immediately after independence there was hardship and a decline in the economy and by the end of 1990’s economic restructuring bore fruit. In 1999, the economy began to grow and that meant the start of a take off phase. GDP in the first half of 2001 was 13 percent higher than in the year 2000 and the rate of inflation declined to 7 percent. In the year 1997, “Strategy 2030” was adopted, outlining the economic priorities and objectives over a thirty years. In an important speech made in September 2001, the President outlined the aims for the tears up to 2010 in political and economic matters. This included the doubling of GDP by that date and increase in investment.

Presidential Elections Kazakhstan’s Presidential election of 2005 became an important milestone in Kazakhstan’s history with implications for the future and the wider region. In September 2005, Kazakhstan’s President Nursultan Naz- arbayev had declared his commitment to ensure the forthcoming election to be “free, fair and transparent.” US Secretary of State Condoleezza Rice, on a visit to Astana earlier in October 2005, said “with the Presidential election, Kazakhstan had an unprecedented opportunity to lead Central Asia toward a future of democracy and to elevate US-Kazakhstani relations to a new level.” Nursultan Nazarbayev was re-elected for a new term in the Presidential election held on 4 December 2005 receiving the support of more than 90 per cent of those who voted. In the next presidential election held on 3 April 2011 President Nazarbayev once again saw a resounding victory. Soon after his reelection he declared that he now had «carte blanche» to continue national reform. According to the Kazakhstan’s Central Election Commission, the incumbent President, Nursultan Nazarbayev, got over 95 percent of the vote in the presidential election. Nazarbayev called the early poll after rejecting parliament’s vote for a referendum to extend his term until 2020, bypassing presidential elections scheduled for 2012 and 2017. After winning the election Nazarbayev told his supporters that he would «continue the course of economic, political and social reforms». David Witherspoon of the Daily Telegraph reported that most citizens who were interviewed before and after the election said the country had made rapid progress under Nazarbayev, and they wanted it to continue. They added that the President had provided Kazakhstan with the stability it needed to move ahead. In his report he informed that more than 1,000 international observers including the OSCE came to Kazakhstan to ensure the fairness of the election. According to him, the Organization for Security and Cooperation in Europe (OSCE), which brought hundreds of observers, noted some irregularities while also saying that Kazakhstan had made progress toward achieving fairness since the last presidential election in 2005. In recent years, a significant development related to the institution of President is that Kazakhstan’s parliament made legislative changes through constitutional amendment on 13 May 2010 that bestowed new powers on President Nursultan Nazarbayev. In addition to granting Nazarbayev the title of “leader of the na-

217 tion,” he now gained the right to intervene in politics after he officially retires from the presidency and would enjoy enhanced immunity from prosecution. Parliamentary deputies promoting the amendments, argues that- Nazarbayev occupies a special role in Kazakhstan’s national psyche. They defended him for his role in creating Kazakh statehood since independence in 1991, and commended him for successfully steering the country out of the ruins of Communist central planning and transforming it into an energy-rich regional economic power house. For example: As quoted by the state controlled Kazakhstanskaya Pravda newspaperSvetlana Ferkho, the Member of Parliament told the Mazhilis (lower house) on May 5, 2013 that “I believe the achievements of our president give us the right to acknowledge him as leader of the nation, and that status needs to be legislatively enshrined,”. She went on to compare Nazarbayev to historical figures who are viewed as the fathers of their respective countries: “Nursultan Nazarbayev ranks with such great personalities as George Washington, Mustafa Kemal Ataturk, and Mahatma Gandhi, who in the interests of their states did truly historic deeds and remained in the memories of their people for eternity”. Further, Deputy Amzebek Zholshibekov said that the legislation would grant Nazarbayev a political role even after he retires. In effect, he would retain de facto veto authority over state policy.

Strengthening Democracy through “Kazakhstan – 2050” Vision The main goal of the new political course for Kazakhstan until 2050 is to join the group of 30 most developed countries. This project is called “Мәңгілік Ел ” (Eternal Kazakhstan). It is a mature vision of a new era in the history of Kazakhstan which over the years has created its own successful model of development. It is a fact that 97 percent of the Kazakh citizens recognize the stability of their social-economic condition and its continuous improvement year to year. On January 17, 2014 Astana while delivering his address on the Strategy Kazakhstan 2050, President Nazarbayev said that “We’ve adopted Strategy-2050 so that Kazakhstan’s people can hold firmly in their hands the helm of the country’s future.” The process of achieving the goals for 2050 will proceed against the background of intense global competition. There will be no “easy ride” in the 21st century. The middle of the century is already not too distant. Developed countries take this into account in their specific strategies. The second third of the 21st century will definitely be more difficult, and the number of candidates to the global list of top 30 will be very limited. He said that the plan for Kazakhstan joining the top 30 developed countries of the world includes long-term priorities for our activity. It requires addressing a number of challenges in the following priority areas:

1. Adjusting and strengthening the trend of innovative industrialization as well as increasing the effectiveness of traditional mining sectors. 2. Ensuring that the traditional industry Agriculture takes the path of innovations as the global demand for food will increase. Agricultural lands should be used by those who introduce new technologies, continuously improve productivity, and perform on the basis of the best international standards. 3. Developing knowledge-based economy by improving legislation on venture financing, intellectual property protection, research and innovation support, as well as commercialization of research. 4. Ensuring dynamic development of the infrastructure triad — Agglomerations, Transportation, and En- ergy. Their creation and development are an important challenge given the vast territory of Kazakhstan and its low population density. The largest cities of Kazakhstan, Astana and Almaty, Shymkent and Aktobe must become contemporary urban centers driving economic growth. 5. Developing Small and Medium Business which is the main tool for the industrial and social modernization of Kazakhstan in the 21st century. The greater the share of small-to-medium-sized businesses in the economy is, the more developed and sustainable Kazakhstan will be. 6. Creating new opportunities to unleash the potential of Kazakh citizens. Since a developed country in the 21st century has active, educated, enterprising and healthy citizens, Kazakhstan should work (a) to im-

218 prove the quality of all parts of national education; (b) to introduce compulsory health insurance for better health care; (c) to consider Kazakh language not as a ground for debates, but as a foundation to unite the country; (d) to revise social packages for people working in education, healthcare and social security sectors; and (e) to do more to support the citizens with disabilities so that Kazakhstan must become a barrier-free zone for them. 7. Improving Public Institutions. As Kazakhstan moves towards the top 30 developed countries, it needs an atmosphere of creativity, fair competition, rule of law, and high standards of legal culture. It needs renewed instruments of interaction between the state, the non-government sector and business. These are clear goals Kazakhstan and its society will face on their way to the top 30 developed countries. But it will have to translate them into relevant legislation and concrete actions. President Nazarbayev clearly remarked that “It is necessary to keep on putting into practice the meritocracy principles in the management of human resources in state-owned enterprises, national companies, and state budget-financed organizations.” He declared that “I charge the Government to ensure the wages of the “B” corps civil servants grow by 15% since 1 July 2015, and by another 15% since 1 July 2016.”

Conclusion The technocratic model and the programme of democratic reforms as well as constitutional development in the post-1991 period make Nazarbayev’s regime quite different from the regimes of Turkmenistan and Uz- bekistan, and from that of Russia. Nazarbayev did not ignore democratic procedure. However, he limits this ‘procedure’ within certain framework and his ‘rules of the game’. Nazarbayev and some other Central Asian Presidents have been emphasizing on ‘Asian values’ and peculiarities of Central Asian democracy. Besides, the policy of manoeuvres and compromises with different social, ethnic, tribal and political groups, and the moderate technocratic programme of reforms, allows Nazarbayev to broaden the social and political base of the President of Kazakhstan. His flexibility has attracted wide social support in Kazakhstan and even the Russian ethnic community voted for Nazarbayev. Kazakhstan has a strong basis on which it could move forward to democratization. In this regard, the goals set by Nazarbayev in the Strategy “Kazakhstan-2050” to make way to the top 30 developed countries are noteworthy. According to him, the movement towards the top 30 developed countries should proceed in two stages: The first stage embraces the period before 2030, during which Kazakhstan will have to make a modernization breakthrough using a “window of opportunity” in the 21st century. It requires Kazakhstan to achieve what the developed countries accomplished during the industrial boom of the last century. Kazakhstan will ensure dynamic growth of the traditional sectors and create a strong manufacturing industry. During the second stage, between 2030 and 2050, Kazakhstan needs to ensure sustainable development of the country on the principles of the knowledge-based economy. Therefore, Kazakhstan must build a strong manufacturing industry, as Nazarbayev stressed that in the traditional sectors, Kazakhstan will move to high-end products besides developing engineering services as a basis for the knowledge-based economy. As of now, it appears that Kazakhstan has succeeded in giving the country a democratic face in both the political as well as socio- economic fields through various reform programmes that have been ensured by constitutional amendments at different intervals.

REFERENCES: 1. UNESCO Report.n.6. 2. J.Denis Derbyshire and Ian Derbyshire, Political System of the World, London: Helocon Publication, 1996, p.11. 3. John Anderson, “Constitutional Development in Central Asia”, Central Asian Survey, vol.16, no.3, 1997,pp.301-320.

219 4. .Constitution of Republic of Kazakhstan, (References regarding Articles of the Constitution are based on the text published in the FBIS: Central Eurasia, 1993), pp. 67-78 5. Constitution of the Republic of Kazakhstan, Article 10. 6. Ibid., Article 3. 7. Ibid., Article 55. 8. Ibid., Article 58 (Paragraph 2).hjuyh mkijyhg bhgyt 9. Nursultan Nazarbayev., The Kazakhstan Way, Foreword by Margaret Thatcher O.M, from From the Archive of the President of the Republic of Kazakhstan, p.60. 10. Ibid. p.74. 11. Ibid. 12. Ibid. 13. Marat Yermukanov, CACI Analyst, 30 May 2007. 14. www.akorda.kz, 16 May 2007. 15. OSCE/ODIHR, Report on the Presidential Elections in the Republic of Kazakhstan on December4, 2005. 16. Ibid. 17. “Kazakhstan President Nazarbayev wins re-election”, 4 April 2011, http://www.bbc.co.uk/news/world- asia-pacific-12949853 18. RIA Novosti, Almaty, 3 April 2011. 19. David Witherspoon, “Nazarbayev Election Victory spells Economic stability, More Growth”, http://www. kazakhstanlive.com/Documents/KazakhstanSpotlight.pdf 20. Jay Carmella, “Kazakhstan approves constitutional amendment to increase presidential powers”, Ju- rist, 13 May 2013, http://jurist.org/paperchase/2010/05/kazakhstan-approves-constitutional-amendments-to- increase-presidential-powers.php 21. Rafis Abazov., “The Presidential Elections in Kazakhstan”, Contemporary Central Asia, Vol. 3, No.2, 1999.

220 Carlos Flores Juberías – Professor of Constitutional Law, University of Valencia (Spain)

A Critical Assessment of the Role of Consensus in the Making of the 1978 Spanish Constitution

I. THE RATIONALE FOR CONSENSUS The constituent process, which, back in 1977 and 1978, led to the enactment of the current Spanish Consti- tution, was a unique, and atypical one [1]. It was so, in the first place, because the legislature that carried it out had not been formally convened for that specific purpose. Regardless of the fact that in the minds of the vast majority of those who approached the polls in the first democratic elections in forty years, on June 15, 1977, was well entrenched the idea that people’s demands were not suitable to be satisfied by a merely cosmetic re-arrangement of the still surviving institutions of General Franco’s regime, but by the drafting of a brand new constitution, the fact is that the 1977-1979 legislature was not chosen as a constituent one [2], and that the idea of drafting a new constitution did not take shape until after the formation of the new houses, when the dominant political forces in the Congress of Depu- ties began to make public their positions regarding the institutional future of the country [3]. It was so, secondly, because it was a constitution-making process which since its launch was confronted with so relevant limitations that some scholars have labeled it as a derivative rather than an original constitution- making process [4], or as a limited one [5]. To begin with, the institution of the Crown, itself a legacy of Gen- eral Franco, existed prior to its insertion in the constitutional text, appearing before the eyes of deputies and senators as a fait accompli about which there was not much to discuss. Similarly, the fact that the legislature elected on June 15, 1977 had to operate largely under the influence –and, of course, entirely within the legal framework– provided by the so-called Law for Political Reform, this time a legacy of post-francoism, had the consequence that despite their strictly provisional nature, most institutional solutions embedded in this Act ended up becoming permanent ones, since they were adopted –in many cases, almost literally– in the text of the Constitution. As a consequence of this, several important aspects of our current Constitution –the bicameral formula; the size (350 seats) and the electoral formula (proportionality) for the election of Congress; or the

221 equal representation of the provinces in the Senate, to name just a few– originated in a pre-constitutional and provisional text, of a doubtful democratic nature. Additionally, some of the policies undertaken by the Govern- ment of the Union of the Democratic Center (UCD) before the commencement of the constitutional process, and while it was still developing, also had a significant influence on its final outcome: this would be strongly the case with the creation of provisional institutions of self-government in Catalonia and the Basque Country, and later on in several other regions of the country, another fait accompli that constituents would have no choice but to assume and to reflect on the constitutional text [6]. It was so, thirdly, because it was verified entirely within the framework of a bicameral legislature which, upon the conclusion of its work, decided to submit the result of such to a referendum –a formula that despite Spain’s long constitutional history, and the remarkable diversity of procedures used in the preparation of its fundamental laws throughout the two previous centuries, had never before been tested. The so-called 1834 Royal Statute was drafted by the government and «granted» by the Queen Regent [7], the Constitutions of 1845 and 1876 were agreed between the Crown and Parliament [8], and although the Constitutions of 1812, 1837, 1869 and the Republican of 1931 –the most progressive ones in our history– were in fact developed and approved by a constituent legislature, they never came to gain the additional popular legitimacy that would have derived from having been referred to citizens in a referendum [9]. In this regard, it seems appropriate to emphasize not only the conclusion but also the beginning of the process of constitution making. If it was significant that the outcome of the constitutional debate in Parliament was submitted to the citizens in a referendum, so it was the fact that the process was initiated and entirely verified within Parliament itself, with the formation of a Con- stitutional Commission and, within it, of a Constitutional Subcommittee responsible for giving birth to the first constitutional draft. By doing this, the first of the formulas envisaged in the Political Reform Act, which allowed the government to take the lead in the process by submitting a bill to Parliament was disregarded, as also was the possibility of the King directly submitting a text to referendum. This prevented the constitutional process to be conditioned by the preferences of the centrist executive at the time, and also ruled out the politically unthinkable –but legally possible– strategy of carrying it out outside the houses of parliament, and gave the legislature the preeminence that most suited the political situation of the time [10]. Additionally, this allowed the constitution-making process to develop under the close surveillance of the leaders of the major political parties of the time, whose preferences and strategies were dutifully seconded by their respective parliamentary groups, composed of mostly inexperienced MPs, with little or no initiative [11]. But it was so, above all, because the driving force behind it throughout its development was one that unfortunately had been conspicuously absent in most –if not all– previous constitutional processes. I am referring, of course, to consensus [12]. It is a widely held view among scholars devoted to the study of Spanish constitutional history [13] that the lack of consensus on the most decisive issues to be addresses on each occasion had undermined the legitimacy –or, at least, had hampered the unanimous acceptance– of virtually all previous constitutional experiments in Spain. The debate on such fundamental issues as who should hold sovereignty, which should the relationship between the Crown and Parliament, or which the scope of rights and liberties in the early years of our constitutional life; that on the model of territorial organization of the country and on the form of state, in more recent times; as well as deeply rooted and highly controversial issues as the role of religion in virtually every constituent processes of the past two centuries [14], led most of the time to the imposition of the criteria of some against the demands of others, and to the subsequent generation of a spiral of revenge that is at the root of our traditional constitutional instability. Only one single constitutional text –the short lived 1837 Constitution, which lasted no more than eight years– is usually classified as a consensual one, the result –in the metaphorical words of Joaquín Tomás– of progressive architects having used materials from moderate quarry [15]. For all others, it would be more accurate to bring up the famous «Law of the Pendulum» [16] with which many scholars have tried to explain –also, metaphorically– Spain’s constitutional history, under which in the absence of a fundamental

222 consensus about how to address the basic problems of political life, a conservative imposition is closely followed by a progressive one, as a reaction is followed by a revolution, and vice versa ... while the country’s problems often remain parked waiting for tempers to warm up and partisan bickering to give way to good governance. If the 1978 Constitution was the result of consensus, it was mainly because its drafting came as part of a process of political change –the Spanish transition to democracy– in which reconciliation and the need to overcome the historical division between the so-called «two Spains» had already been elevated to the status of highest value and final goal of the entire process. In fact, the constitutional debates took place while other initiatives of very different nature intended either to heal old wounds –such as the Amnesty Act or the restoration of the Catalan government–, either to extend the popular support towards the new institutions –such as the Moncloa Pacts, signed in October 1977– were also being addressed. And more specifically, this was the case because the composition of Parliament deriving from the June 15, 1977 general election left no alternative but to make a constitution of this kind. This was not as much because parliamentary arithmetic did not allow for other outcomes, or was not suitable of producing a constitution of a different political orientation –a feasible option, technically– but rather because voters had delivered their representatives an unequivocal mandate for moderation, which parties and leaders had no choice but to acknowledge and transmit to the constitutional process [17]. Indeed, the June 1977 [18] elections had placed the centrist UCD, led by Adolfo Suárez –nominated as President of the Government eleven months earlier, by the sole decision of the King– and the Socialist Party (PSOE) of Felipe González as the two main pillars on which the remainder of the transitional process was to be sustained, putting them in charge of guiding the constitutional process whose opening all analysts predicted. In contrast, forces such as Spanish Communist Party (PCE), on the left, and the Popular Alliance (AP) –on the right– got results far below the expectations that ones had placed in their long history of opposition to Franco, and the others in the long list of illustrious figures of the past regime that had been featured in their ballots. Much has been written trying to explain why two leaders so unknown until just a few months before the election as Suárez and González, got two politicians with such prolonged careers as Santiago Carrillo and Manuel Fraga, but if we had to synthesize all these arguments if would suffice to say that on June 15, 1977 voters made a clear bet for renovation, for moderation, and for reconciliation, three demands that both Suárez and González –younger, more moderate and relatively less identified in the eyes of the electorate with the old dialectic Republic vs. Franco– were in the condition to embody much better than their respective opponents in the struggle for hegemony in the right and the left. Moreover, the UCD and the PSOE had submitted to the voters more moderate programs and strategies for change based more on pragmatism than ideological maximalism, than the PCE and AP, widely perceived as much more dogmatic forces. Furthermore, the fact that none of the competing parties managed to achieve a majority of the seats –the UCD, with 166 deputies stood ten seats short from than figure– made the search for consensus between the majority forces the only feasible strategy, thus ending the dynamics followed hitherto, under which Suarez had been dictating from its privileged position in La Moncloa Palace the terms and tempos of transition.

II. THE DYNAMICS OF CONSENSUS The earliest testimony of how consensus was to dominate the Spanish constitution-making process could be found in the composition of the Parliamentary Subcommittee that, within the Committee on Constitutional Affairs and Civil Liberties of the Congress of Deputies, took the responsibility of writing the first draft of the Constitution [19]. After having discarded other formulas that suggested a distribution of seats between the two major parties, the proposal that ultimately ended up being applied, advanced by the Socialist Party, lead to the formation of a Parliamentary Subcommittee of seven members of which three (Miguel Herrero de Miñón, José Pedro Pérez Llorca and Gabriel Cisneros) came from the UCD, one (Gregorio Peces Barba) from the PSOE, another one (Jordi Solé Tura) belonged to the PCE, another (Manuel Fraga Iribarne) spoke for the Popular Alliance and the last one (Miquel Roca i Junyent) represented the Catalan nationalists. Thus, membership in the Constitutional

223 Subcommittee became available for several minority parties represented in the Congress, and it could even have comprised almost all the parties represented in the house had the Basque Nationalist Party (PNV) refrained from declaring that they did not feel themselves represented by the Catalan nationalist spokesman. The composition of the constitutional Subcommittee was in no way a trivial matter, since it was inside this Subcommittee where the basic structure of the Constitution was framed, and where –in the words of Herrero de Miñón [20]– 90% of its content was agreed. Discussions within the Subcommittee –first–, the Constitutional Committee –later–, and the Plenary –finally– discoursed mostly on the path of consensus, although there was no shortage of occasions when it was interrupted, and even a few critical situations in which the main political forces of the houses were on the verge of breaking up [21]. Although perhaps the most famous example of this was the well known «door slamming» of the Socialist rapporteur Gregorio Peces Barba, who retired for ten days of the debates in the Constitutional Subcommittee in protest against the pattern of behavior perceived during the early stages of the debate by UCD and AP representatives, who repeatedly reached compromises among themselves to the detriment of the options sponsored by socialists, communists and nationalists [22], the fact is that in the end only the Popular Alliance and the Basque Nationalist Party –both excluded in the final step of the Congress-Senate Joint Committee– were left out of consensus on aspects of the Constitution relevant for their respective constituencies [23]. Indeed, the debate on certain highly sensitive issues such as the authority of the Church in relation to marriage or education, the role of the Armed Forces, the insertion in the Constitution of the right to strike and trade union pluralism, the electoral system, the economic model of the Constitution and, most especially, the future territorial structure of the State were addressed by the various players in the process from very distant ideological positions and strategic approaches that were not always easily saved. The search for consensus was much more successful this time than in previous constitutional processes, among other reasons because political actors –which, as noted earlier, sustained important differences in a huge range of topics–, did not always give the same value to each of the topics under debate, and so they assessed differently the consequences of imposing their position or yielding to the claims of the adversary in each case. Indeed, while the parties of the center and right were unwilling to compromise on issues as relevant to them and to their constituencies as the monarchy, the national unity, or the religious question, they were more inclined to adopt flexible positions regarding less sensitive issues for them –which, on the contrary, were extremely sensitive for other political forces in Parliament, as was the case with the recognition of social rights or the socioeconomic model of the Constitution in the case of the leftist parties, or the recognition of their historical rights and the consequent development in the construction of the State of Autonomies in the case of nationalist parties–. The final result of this negotiating strategy would be a Constitution with which no party was entirely satisfied, but also a text likely to be accepted by all parties: a Constitution that nobody could call its own, but also a text that no one could justifiably consider unacceptable [24]. Fundamental also in the process of seeking consensus was that the constituent debates were all supervised by the leadership of the major parliamentary parties, who made sure that decisions adopted in the houses counted with the necessary support of other key political actors and institutions. That applied even at the Subcom- mittee stage, where in principle one may assume that only proposals that would serve as aframework for further discussion had to me made. Despite the high level of legal education and the substantive political weight of each and every member of the Subcommittee –all of them Law professors, lawyers or senior Government officials, who also held important positions in the ranks of their respective parties– the fact is that the debates within the Constitutional Subcommittee were regularly interrupted so that its members, especially those from the UCD and the PSOE, could evacuate consultations with the top leadership of their organizations, in order to make sure that the solutions they were about to endorse would be acceptable to their parties. This procedure was so frequently used, that it is generally accepted that much of the responsibility for the final wording of the 1978 Constitution was due to the intermediation –if not to the pen itself– of centrist Fernando Abril Martorell, then Vice-President

224 of the Government, and socialist Alfonso Guerra, Deputy Secretary of the PSOE, to whom their respective parties had entrusted the ultimate responsibility for the course of the negotiation process [25]. In close connection with this, the key role during the constitution-making process of what many described as discretion, and others labeled as secrecy, should also be underlined [26]. To begin with, the work of the Constitu- tional Subcommittee was carried out between August and December 1977 amid the harshest of secrets regarding the outcome of the discussions. In fact, the first draft of the Constitution –of one portion to be more precise– was not made public until late November 1977, and not through an official statement, but thanks to a controversial leak, immediately echoed by the press [27]. But even after this first phase–in which it could be desirable that debates proceeded in relative tranquility and away from the pressures of public opinion– was over, secrecy remained the most frequent strategy in the search for consensus. So, it became usual throughout the debates in the Commission and in the Plenary that meetings were prolonged for endless hours without reaching a satisfactory agreement, only to be closed with an agreement when the major socialist and centrist leaders managed to meet, sitting face to face around dinner in some reputed Madrid restaurant [28]. The last and final sample of this procedure happened on occasion of the discussions within the Joint Congress-Senate Committee, in October 1978. In theory, this Joint Committee was endowed with the mission to resolve discrepancies between the projects passed by each chamber, but its debates went far beyond the simple resolution of existing discrepancies, or the technical refinement of the text. The Committee acted with discretion bordering secrecy, and resolved most issued by the simple method of suspending their sessions, leaving Fernando Abril and Alfonso Guerra alone, and subsequently endorsing whatever both leaders had agreed in private. The so-called «Overnight consensus» –as it was contemp- tuously known [29]– contributed quite a bit to paving the way for the Constitution, but at the cost of doing away with most of the transparency which at first had been intended to surround this process [30]. In the end, the result of the final vote on the draft Constitution provided the most unequivocal proof that the purpose of making a text suitable to be accepted by all parties had been substantially achieved. In the vote verified on October 31 in Congress, the draft constitution got 325 votes in favor by just six votes against; while that same day in the Senate 226 senators voted in favor and only five against [31]. In either case, the opposition to the Constitution came mainly from the most conservative sectors of the Popular Alliance –whose parliamentar- ians were divided, in any case, between those voting against, abstaining and even backing to the project–, while the bulk abstentions came from the Basque nationalists. Conversely, support for hard-negotiated text was unanimous among the ranks of the UCD and the PSOE, but it also reach other formations, such as the Communist Party and the Catalan nationalists, which lacked the votes to prevent its adoption, but possessed an important social representativeness which was essential to incorporate to the process. Put to a referendum on the historic date of December 6, the draft constitution would receive the support of 87’9% of voters, with a 67’1% turnout –a more than acceptable rate–. The call to reject the draft constitution came from the extreme left and –obviously for very different reasons– from Franco’s right, as well, but only managed to rally 7.8% of the voters [32]. Actually, the only negative note of the day derived not so much from the opposition of these two sectors, whose political representation in national political life was quite marginal, but from Basque nationalist forces, which out of dis- satisfaction with the outcome of the constitutional process, had decided to call for abstention [33]. While their strategy did not stop the «yes» from triumphing in the Basque circumscriptions too, the fact remains that the results there did not sustain much enthusiasm: with a turnout only 44’7% of the census, the affirmative votes ac- counted for 69’7% of the voters, compared to 23.5% of the vote against –three times the national average [34].

III. THE RESULTS OF CONSENSUS The result of all these developments was, as could not be otherwise, a Constitution full of balances and transactions, but also flooded with ambiguities and silences [35], which in the last decades has confronted legal scholars –and, in particular, those at the Constitutional Court– with quite a few interpretive problems. Samples of this are plentiful, and have projected on almost all issues on which the constitutional debate became polarized [36].

225 In regard to the form of government, the Constitution chose to keep the crown in the hands of the person appointed by Franco as his successor, but at the same time introduced a radical transformation of the political basis on which the institution was to be sustained, which had been established by the Fundamental Laws of the previous regime, and had been only slightly modified by the recent Political Reform Act; a change that could be synthesized by the insertion in the third paragraph of Article I of the concept of a «parliamentary monarchy». At this point, the left had no choice but to give up its claim to culminate the process of breaking up with the Francoist legacy with the restoration of the Republic, fallen in 1936. Although this renunciation was carried out reluctantly, and always with the caveat that it should be considered as a proof of pragmatism and compromise, notwithstanding their profession of faith in the Republic, it only happened in exchange of non negligible compensations. The first and most important one was the insertion in the Constitution of an institution devoid of any substantial power, and therefore incapable of becoming an obstacle in achieving substantial political objectives by the left; a system in which the king received no attributions that could make him capable of exercising political leadership, but only to “arbitrate and moderate the regular functioning of institutions”, and which placed him at all times subject to the institution –in most cases, the President of the Government– called to countersign his decisions, and endorse his initiatives. In regard to certain institutions which in the past –and in particular during the Franco dictatorship– had played a key role in legitimizing the political system, which at the moment still enjoyed the support of broad political and social sectors, consensus materialized in granting them a significant recognition in the constitutional text. This mostly a symbolic recognition, which ultimately fell short of deploying the practical consequences expected by those supporting them, was projected, for example, over the Army and the Catholic Church, whose concerns had been repeatedly voiced during the constituent debates by the representatives of the People’s Al- liance and a significant part of those from the UCD. Regarding the first, article 8 of the Constitution –located in such a prominent place as the Preliminary Section, alongside with the major political decisions enshrined in the Constitution– conferred the Armed Forces the triple task of «guaranteeing the sovereignty and independence of Spain, defending its territorial integrity and its constitutional order», while Article 62 placed them under the “supreme command» of His Majesty the King. But both had to be interpreted in close connection with, among others, Article 97, which conferred the government the responsibility for the direction of both domestic and foreign policy, civil and military administration, and national defense, thus dispelling any shadow of doubt as to the effective subordination of the military to civilian institutions, and the purely symbolic nature of the powers attributed of the king. Besides, in two other issues, also sensitive to the military, the consensus dominating the constitutional process became even more apparent: it was the case of Article 15, which abolished the death penalty while contemplating the possibility of keeping it in place for the military in times of war; as well as the case of Article 30, which declared the duty of every Spanish to defend his country, while at the same time admitting the right to conscientious objection. In the case of the Catholic Church, the laborious negotiations that led to the drafting of Article 16.3 ended up both declaring the secular nature of the Spanish state –»no religion shall have a state character»– and expressing the commitment to take into account «the religious beliefs of the Spanish society» and maintain «appropriate cooperation relations with the Catholic Church» –which therefore became explicitly mentioned in the Constitution–, as well as with “other confessions”. In particularly sensitive issues for the Church, the Constitution featured a meticulously crafted ambiguity, whose most representative samples were definitely the «everyone has the right to life» of Article 15, or the reference to «the forms of marriage» in Article 32.2. In the interpretation made by the conservative right, both statements were a clear proof that the Constitution did not endorse abortion, nor divorce. However, both were introduced in the Spanish legislation soon after the Consti- tution was adopted, and even gay marriage was also introduced at a later stage, despite the wording of Article 32.2, stating that “man and woman have the right to marry with full legal equality” –in all three cases, with the opposition of the church, and amid claims of unconstitutionality disregarded by the Constitutional Court.

226 Regarding the electoral system, discrepancies within the Constitutional Committee of Congress were so intense that it was even necessary to alter the order of discussion of some articles to prevent the entrenchment of the debate, and an overall blockade of the entire constitutional process. In essence, both the UCD and AP were in favor of the Constitution remaining silent on the subject, or merely picking up some rather vague principles that would enable the future government to legislate on the issue in the most convenient way for their interests –which, of course, were those of enhancing the majoritarian features of the existing electoral system, and over- representing the rural and interior districts, against those more urban ones located in the periphery. By contrast, the left wanted at any rate that the Constitution sanctioned the principle of proportionality as a central element of any future electoral system, at least in the case of the Congress of Deputies. Compromise was achieved only when the UCD was ready to accept an explicit reference to the principle of proportionality in Article 68, in exchange for the PSOE accepting the provinces becoming electoral constituencies and the Constitution referring to a future election law the minimum number of deputies to be elected in each one. In practice, this formula was simply providing a constitutional coverage to the electoral system already in force: the one provisionally established by the Royal Decree on Election Rules of March 1977, the one that in the subsequent elections had made possible for the UCD to win 47% of the seats in Congress, with just 35% of the popular vote. The system, whose defining features have remained in force up to now, attributed a minimum of two deputies to each province, thus over-representing the least populated areas of the interior of the peninsula, mostly conservative at that time, while underrepresenting the largest constituencies such as Madrid, Barcelona, Valencia and Seville, where the left was particularly strong. In addition, the formula had the consequence that the average district magnitude remained quite low, a feature which effectively went against the alleged proportionality of the system. Regarding the configuration of parliament itself, the bicameral option was vigorously defended by the forces of the center and the right –and especially by AP leader, Manuel Fraga, himself an admirer of the British model–, while the left was hesitant to join in the defense of the Senate, at least while the defining lines and the mission of the institution was not sufficiently defined. The support of AP to keep the Senate in the Constitution was largely explained by the specific configuration given to the upper house in the Law for Political Reform –majority rule for the election of senators, overrepresentation of rural Spain, and appointment by the King of one fifth of their overall number–, which the party hoped to transfer to the articles in the Constitution. But for the left, keeping the upper house was justified only if it was to become a chamber of territorial representation, which meant that the solution to the question of how to regulate the Senate was closely tied to the problem of how to address the regional problem. In the end, the Constitution actually ended up reproducing many of the features that had characterized the upper house in the Political Reform Act, the main differences among them being the fact that in the constitutional Senate the senators by royal appointment disappeared, while others appointed by the Autonomous Communities, similar in number, took their places. However, this compromise was achieved only after a long debate in which institutional inertia –on the one hand–, and uncertainty regarding the future development of the State of Autonomies –on the other side– acted decisively in favor of the maintenance –with the above-mentioned change– of the existing status quo. Along the way, the conflicting goals of different political forces cancelled each other, ruling out one after the other the idea of a Senate representative of the Autonomous Communities, a Senate representative of the local entities which might be established in the future, or a Senate of exclusively provincial extraction. To make matters worse, political indecision on the side of the two major parties has blocked the successive proposals for reform of the institution during the past three decades, despite the fact that the idea of having the Senate substantially reformed appeared almost instantly after the termination of the constituent debates. In the discussions on the economic model of the Constitution the positions of the parliamentary forces were, in principle, strongly polarized around the left–right axis. This forced the socialist and communist representatives to exert strong pressure on the other members of the Subcommittee to make them understand how important it was for them to obtain significant concessions in this area, so sensitive in the eyes of their con-

227 stituents. The solution finally adopted was built on the basis of an explicit recognition of «free enterprise within the framework of a market economy» in Article 38, and the insertion in Title VII of the Constitution of formulas specially amenable to the left, like the subordination of the country’s wealth to “the general interest», the constitutionalization of «public initiative in economic activity», the possibility of granting the public sector control on «essential resources or services» (Article 128), the participation of workers in businesses, and of citizens in «public bodies whose operation directly affects the quality of life or general welfare» (Article 129), or economic planning by the state for the purpose, among others, to «encourage the growth of income and wealth and its more equitable distribution» (Article 131). Other compromise solutions also related to the economic model of the Constitution, can be found in Article 33, which recognizes the right to private property and inheritance, but subordinates its content to its social function and, finally, on the highly controversial regulation of the right to strike, an issue in which speakers from the UCD acted as referees of the debate, eliminating the reference to the lockout in the first draft had supported the request of AP, but keeping several precautions (the reference to defending the interests of workers as an object of law and the maintenance of minimum services) that so aroused suspicion on the left. However, the most heated debates during the constitutional process –and therefore the most complex consensus-seeking processes– were those related with the key issue of the territorial distribution of power. The debate was raised in two successive stages: one when the principles which should govern the system, whose formulation belonged to the Preliminary Title, had to be defined; and the second, when the time came to have those principles developed in order to lay the foundation for building what eventually would be known as the «State of Autonomies», a new formula intended to be equidistant from the radical unitarianism existing under Franco; from federalism, as claimed by the left; and from secessionism, supported by some radical nationalist forces. As regards the first aspect of the issue, the most conservative sectors were not willing to accept the insertion in the Constitution of the «right to autonomy of nationalities and regions», claimed from the left and from the nationalist parties, unless at the same point where it was recognized it was also declared that the «unity of the Spanish nation» was the foundation of the Constitution itself. Moreover, these same sectors pressed –it is said that on behalf of the military– for this principle to become embedded in the Constitution with due so- lemnity, the consequence of which being Articles 2 pompously proclaiming the Spanish nation as «the common and indivisible homeland of all Spaniards», and its national unity being declared «unbreakable». But the best example of this ability of the constituents to accommodate different and conflicting demands was undoubtedly the introduction in the text of the aforementioned Article 2 of the term «nationalities». While Catalan and Basque nationalist parties aspired to have the Constitution endorse their thesis that Spain was nothing but a «nation of nations», as a departing point for the recognition of their right to self-government or eventually self-determination, for UCD and the Popular Alliance both the concept and the word were totally unacceptable. Furthermore, while Catalan and Basque nationalist parties wanted their respective territories be treated differently, as a result of their cultural uniqueness –the so-called «differential fact»– right-wing parties were rather in favor of giving the same treatment to all territories of the country in the Constitution, whether or not they had a language of their own, previous experience of self-government, or nationalist parties representing them in Par- liament. In the end, consensus was achieved around the expression «nationalities and regions». This dichotomy satisfied –if only partially– nationalist parties, who managed to introduce into the Constitution a term which, while not the mostly desired one, one that was conceptually close to it, while some standing was given to the proposed differentiation between territories, who would from now on being either “nationalities” or “regions”. And it also satisfied –in part, as well– parties of the right, which avoided the problems that could arise from the Constitution acknowledging the «nation of nations” thesis. In any case, the solution of Article 2 revealed as little more than a smokescreen behind which to hide momentarily the problem of the territorial articulation of Spain, since neither at the that point nor in any other section of the Constitution was identified which territories would deserve the name of «nationalities» and which ones would be no more than «regions», and no legal con-

228 sequences whatsoever were linked to such self-identification of an autonomous community. Again, consensus and ambiguity went hand in hand. Finally, and still regarding the debate on the Title VIII of the Constitution, the goal of finding widely acceptable formulas was severely hampered by the existence of very heterogeneous and highly confronted positions among the various forces represented in Parliament. While in most of the issues previously addressed the positions of the parties had been polarized around the relatively manageable left-right axis, with nationalist forces either staying out of the question, or adding effortlessly to one or another faction, when addressing the challenge of shaping the future territorial structure of the Spanish State, positions were much complex. Alianza Popular did not stay on the same grounds as the UCD, whose position differed from that of the parties in the left, while at the same time the demands of the nationalist parties in Catalonia and the Basque Country were neither in the line of those supported by the Government, nor coincided with those in the opposition, nor were in fact entirely coincident with each other. In essence, what the Popular Alliance wanted was to maintain a decentralized unitary state in which a sort of commonwealth among some provincial administrations could be accommodated; UCD was inclined to recognize, in the best possible scenario, some form of political autonomy for Catalonia, Galicia and the Basque Country provided that it did not involve a radical transformation of the mode of organization of the state as a whole, although some of their regional leaders had made clear their opposition to being left behind if roads for access to regional self-government became open; Socialists and Communists defended a federal model: mostly an homogeneous one, although the Catalan Socialists had positioned at this point close to their nationalist opponents; and these, along with the nationalist from the PNV, demanded, first, the constitutional recognition of their historical rights and the restoration of autonomy lost with the advent of Franco and, only secondarily, the generalization of an autonomic system in whose design it would be essential to have an specific recognition of their peculiarities, that differentiated them from the rest of the territories. In the end, consensus was achieved only after the effective marginalization in the decision making process of both the Popular Alliance and the PNV, in whom the triple condition concurred of being the proponents of the more radical alternatives, those who were less likely to compromise, and those whose parliamentary support was less irreplaceable for the building of a majority. Once this exclusion revealed unavoidable –a decision that obviously had a price: AP proposed for years the reform of Title VIII, and the PNV still maintains that «the Basques did not vote the Constitution»– the search for a triangular compromise between the UCD, the PSOE-PCE tandem, and Catalan nationalists was greatly facilitated inter alia by the internal disunity of the center, the pragmatism of the left, and flexibility of the nationalists. In fact, the formula finally inserted in Title VIII ended up containing elements intended to satisfy all parties involved, although at the cost of introducing an even more remarkable dose of ambiguity: thus, the existing provincial structure became inserted in the Constitution, as required by UCD; the possibility was opened for all territories to accede to self-government, with the conditions, limits and procedures foreseen in the Constitution, laying the groundwork for the establishment of a model suitable to operate in a manner very similar to that of a federal state, as wanted by the parties of the left; and qualified paths to self-government exclusively reserved for the so-called «historical nationalities» were established, as demanded by the nationalists.

IV. THE DRAWBACKS OF CONSENSUS There is no doubt that the evaluation by both the Spanish society and its ruling elite of the 1977-78 constitutional process and its fruits has been –and still is–, clearly favorable; and so it is among the academic community, even if among academics the critical component is somehow stronger. And there is no doubt that the main argument on which this positive judgment has been sustained over the past decades is that the Spanish Constitution of 1978 was a consensual constitution or –as it is frequently said– a Constitution «for everyone». Although the argument is true, it should not be exaggerated. The constitutional agreement resolved for several generations some of the problems which –also for generations–, had been deeply dividing the Spaniards. And

229 it did so thanks to a consensus, so broad, so deep, and so immediately assumed by ordinary citizens that virtually solved –or at least kept away from the daily political debate– some of the most controversial issues of other times, as was the case with the form of government, the powers of the king, the subordination of the military to civilian power, the independence of justice, or the supremacy of the Constitution. However, on other issues the main actors of the constituent process were unable to bring their agreement beyond the formulation of some broad, general principles intended to be developed by effective policies in the future. This strategy effectively neutralized those issues as potential obstacles in the moment of the adoption of the Constitution, but at the cost of postponing the discussion –and the ensuing confrontation– until the time came to provide a legal framework and effective political measures to apply those constitutional provisions. Thus, issues that the Constitution considered as settled thanks to the broad parliamentary consensus around them –issues as church-state relations, the electoral system, the economic model, the regulation of the Senate or the autonomic system– resurfaced again soon after the text had been adopted, forcing the parliamentary parties either to forge a new consensus, to maintain an unsatisfac- tory status quo due to the lacking of better alternatives, or to impose their position on political or social forces who from the constituent moment had been gradually losing social representation and political influence [37]. Yet the most serious problem, and the most recurrent one, is the one affecting those issues on which the constituents were not able to close a worthy agreement, issues among which at least two emerge with absolute clarity: the Basque and the Catalan problems. In the case of the Basque Country, it has already been mentioned that the central demand of Basque nationalism that the Constitution «recognized» –it was not enough that it promised to “protect” and “respect”– the historical rights of those territories, failed to find satisfactory accommodation in the Constitution. The idea of self-government being a sort of natural right, a given fact that parties and voters had no choice but to assume and reflect in the Constitution was not easy to accept in a moment in which almost everything was been subject to debate and negotiation. On the basis of this disagreement, Basque nationalism immediately began to build a whole string of new and old affronts that the adoption of the Statute of Autonomy in 1979 failed to dismount, but only differed over time. Strengthened by the recurrent threat of terrorism the demands of Basque nationalism were for decades the clearest demonstration that the constitutional consensus was not achieved without shortcomings. Regarding the Catalan case, if the origins of the problem could be considered similar, the dynamics followed in their demand for more self-government and a differentiated status within the Spanish “State of the Autonomies”, have been entirely different. During the decades in which Basque nationalism chose the path of confrontation, Catalans opted for negotiation, providing parliamentary support to governments of the PSOE and the Popular Party as well, in exchange for substantial improvements in competencies and funding. But after cur- tailing of the statutory reform of 2006 by the Parliament and the Constitutional Court, the strategy of dialogue gave way to that of confrontation –albeit a peaceful one– which has had its culmination in the new fiasco of the independence referendum of November 2014 [38]. Although the end of this confrontation as far from been evident, and it is risky to attribute responsibilities for the current situation, it is undeniable that if we were to hold an opinion based on the radicalism of the demands sustained by the latest Basque an the Catalan governments, it would honestly be unrealistic to say that an additional dose of flexibility on the side of the makers of the Constitution might have left this issue solved for decades to come.

V. ANY TEACHINGS FOR KAZAKHSTAN? Scholars devoted to the study of comparative politics have the innate habit of seeking parallels between the processes of change, the political systems, and the institutional settings that present themselves for examination, to the extent that they rarely accept a «no» for an answer, even if this involves carrying the terms of the comparison to an entirely unsustainable point, and formulating practically useless conclusions. However, in the present case, finding in the Spanish political transition and constitutional process developed in the seventies experiences that could have served as a guide to the process of political restructuring

230 experienced by Kazakhstan two decades later appears to be completely useless; as it is useless to try to find in the political solutions of that time lessons applicable to the political reality of XXI century Kazakhstan. To the obvious geographical distance between the two countries, and the equally obvious temporal distance between the two processes, other less evident but equally decisive differences have to be added: neither the political culture of the Spaniards and the Kazakhs is comparable, nor are their political traditions, nor consequently were their processes of change, nor are the institutions adopted, nor the political dynamics created from them. If in the Spain of the seventies the main problem was to create a framework of coexistence within which political forces of very distinct orientation, and communities who wished to see their differences recognized, could feel comfortable, in Kazakhstan during the nineties priority was given to changing an obsolete economic model, and forging a national identity still waiting to be fully consolidated. This explains why in the Spanish case the solution came in the form of a parliamentary system of government and a highly decentralized model of territorial organization, while the formula endorsed by the Kazakh Constitution of 1995 was exactly the opposite: a highly presidential system, on a substantially unitary administrative structure. Now, this does not mean that the Spanish experience is to be entirely irrelevant to Kazakhstan. For two countries called to steadily increase their diplomatic and commercial exchanges –in other times nonexistent–, to get to know each other is essential, and the results of the transition to democracy in the seventies remain largely the most defining element of how the Spanish society is structured and governed nowadays. But above all, in a changing world, plunged as well into an irreversible process of globalization, it is not possible to believe that the solutions adopted in the past are to be useful forever. Immersed in a spectacular economic growth, and inserted into the world economy, the society of Kazakhstan is bound to become gradually transformed to become a more complex, more diverse, and more plural one. And it will be in the not so distant future, when a new social context requires more elaborate solutions, more complex balances, and more flexibility for the accommodation of conflicting interests when perhaps the Spanish experience of dialogue with diversity will prove really useful. Provided, of course, we do not lose sight nor of its successes, nor of its failures, since both experiences can be useful: the successes, to be followed, and the failures, to be discarded. And in the Spanish case, if there were many of the former, they were also a few of the latter.

REFERENCES: 1. These are the terms used by Jorge de Esteban –who, by the way, is not shy to use the term “irregular”, as well– in “El proceso constituyente español, 1977-1978”, in José F. Tezanos, Ramón Cotarelo & Andrés de Blas (eds.): La transición democrática española, Sistema, Madrid, 1989, pp. 275 a 315, at pp. 276-278. Similarly, Pablo Lucas Verdú, in “La singularidad del proceso constituyente español”, Revista de Estudios Políticos No. 1 (1978), talks about a “singular and sui generis” process. 2. On the issue, see Chapter XIV –quite tellingly entitled “The 1977 self-constituent legislature” in Emilio At- tard Alonso: La Constitución por dentro. Evocaciones del proceso constituyente. Valores, derechos y libertades, Argos Vergara, Barcelona, 1983, pp. 183-196, the reflections of Joaquín Tomás Villarroya in “Proceso constituyente y nueva Constitución. Un análisis crítico”, in VV.AA.: Estudios sobre la Constitución española de 1978, Universidad de Valen- cia, Valencia, 1980, pp. 9-36, in pp. 10-13; and the entirely opposite argumentation of Eustaquio Galán y Gutiérrez in Estudio crítico del anteproyecto de Constitución española y otras lecciones de Filosofía del Estado, Madrid, 1978. 3. Jorge de Esteban: “El proceso constituyente español, 1977-1978”, cit. supra, pp. 277-278. 4. Álvaro Soto: La transición a la democracia. España 1975-1982, Alianza Editorial, Madrid, 1998, p. 65. 5. Gregorio Peces Barba: La elaboración de la Constitución de 1978, Centro de Estudios Constitucionales, Ma- drid, 1988, pp. 15-30. 6. Francisco Rubio Llorente: “The Making of the Spanish Constitution”, in AA.VV. Constitution Makers on Consti- tution Making, American Enterprise Institute, Washington DC, 1988, pp. 238-265, at p. 250.

231 7. Joaquín Tomás Villarroya: El sistema político del Estatuto Real, 1834-1836, Instituto de Estudios Políticos, Madrid, 1968, pp. 53 ss. 8. Francisco. Fernández Segado: Las constituciones históricas españolas, Civitas, Madrid, 1986, pp. 225-226, and 369-378. 9. .Francisco Fernández Segado: Las constituciones históricas…, cit. supra, pp. 74-77, 186-199, 287-289 and 474-534. 10. Jorge de Esteban: “El proceso constituyente español, 1977-1978”, cit. supra, pp. 290-291. 11. Francisco Rubio Llorente: “The Making of the Spanish Constitution”, cit. supra, pp. 250-251. 12. On the meaning and purpose of consensus in the Spanish Constitution see Gregorio Peces Barba: La Consti- tución de 1978, Un estudio de Derecho y política, Fernando Torres, Valencia, 1981, pp. 13-20 and Miguel Herrero de Miñón: “Falsas y verdaderas vías del consenso constitucional”, Revista de Estudios Políticos No 9 (1979), pp. 73-99. In order to put the concept of consensus in due perspective, see the detailed analysis by Pablo Oñate Rubalcaba in Consenso e ideología en la transición política española, CEPC, Madrid, 1998, pp. 177-272. 13. See, for all, Joaquín Tomás Villarroya: Breve historia del constitucionalismo español (2nd. ed.), Centro de Estudios Constitucionales, Madrid, 1982, pp. 9-10; Manuel Fraile Clivillés: Introducción al Derecho Constitucional español, Rivadeneyra, Madrid, 1975, p. 201 and Jorge de Esteban: Esquemas del constitucionalismo español, 1808- 1976, Universidad Complutense, Madrid, 1976, p. 25. 14. Luis Sánchez Agesta: Historia del constitucionalismo español, Madrid, 1964. 15. Joaquín Tomás Villarroya: Breve historia…, cit. supra,pp. 51-52. 16. Juan Ferrando Badía: La Primera República Española, Edicusa, Madrid, 1973, pp. 19-20. 17. Jorge de Esteban: “El proceso constituyente español, 1977-1978”, cit. supra, p. 286. An overall analysis of the evolution of Spanish public opinion at that time, can be found at Rafael López Pintor: La opinión pública espa- ñola. Del franquismo a la democracia, CIS, Madrid, 1982. 18. For a global analysis of this first elections, see Mario Caciagli: Elecciones y partidos en la transición españo- la, CIS-Siglo XXI, Madrid, 1976, and Richard Günther, Giacomo Sani & Goldie Shabad: El sistema de partidos políticos en España. Génesis y evolución, CIS-Siglo XXI, Madrid, 1976. 19. About this key event the opinions of two of its main protagonists –and that of one who fell short of becoming one– can be found in Gregorio Peces Barba: La elaboración de la Constitución de 1978, cit. supra, pp. 19 ss.; Manuel Fraga Iribarne: En busca del tiempo servido, Planeta, Barcelona, 1987, pp. 90 ss. and Emilio Attard Alonso: La Constitución por dentro…, cit. supra, pp. 17 a 20. The testimony of the drafters about their work, quite likely to be influenced by the years passed, can be found at 20 años después. La Constitución cara al siglo XXI, Taurus, Madrid, 1998; in Reflexiones de los ponentes de la Constitución Española, 1978-2003, Senado de España/Thomson-Aranzadi, Pamplona, 2003, as well as in Julio Samoano Rodríguez: ¿Qué ha pasado con la Constitución?: 25 Aniversario, hablan los padres de la Carta Magna, Maeva, Madrid, 2003. 20. Quoted by Álvaro Soto: La transición a la democracia, cit. supra. 21. .On this issue, it can be useful the periodification proposed by Alexandra Bonime-Blanc in Spain’s Transition to Democracy. The Politics of Constitution-Making, Westview Press, Boulder, Co., 1987, p. 55. The author identifies the period from March to May 1978 as the only one in which the consensus was broken and in which the dynamics of accommodation and multilateralism gave way to those of confrontation and unilateralism. 22. See his own recolection in Gregorio Peces Barba: La elaboración de la Constitución de 1978, cit., pp. 123-133. 23. In this respect, and even though this is a detail that analysts routinely prefer to ignore, it would not be pointless to underline that the dynamics of consensus also marginalized senators belonging to the Independent Group –the one comprising those freely appointed by the King–, who despite their undisputed intellectual prestige could barely see their contributions reflected in the final text of the Constitution. See, as a most qualified testimony of this, the bitter complain by Carlos Ollero in Derecho yteoría política en el proceso constituyente español, CEC, Madrid, 1986, pp. 203-211. 24. .This is the central thesis in the analysis by Josep María Colomer in La transición a la democracia. El modelo español, Anagrama, Barcelona, 1998, pp. 114-116.

232 25. On this issue, see the exhaustive analysis by Manuel Ramírez in Partidos políticos y Constitución. Un estudio de las actitudes parlamentarios durante el proceso de creación constitucional, Madrid, 1978. 26. On this issue, see Chapter I (quite tellingly, entitled “The secrecy in the Constitutional Subcommittee”) in Emilio Attard Alonso: La Constitución por dentro…, cit.,pp. 17-31. 27. See the recollection by Gregorio Peces Barba –erroneously taken as the responsible of the leak– in La elabo- ración de la Constitución de 1978, cit., pp. 86-88. 28. Some highly critical opinions on this dynamics coming from MPs from different political persuasions, having basically in common their condition of being excluded from it, managed to be heard in the plenary. See, for example, the speeches by the leader of Alianza Popular Manuel Fraga, by Hipólito Gómez de las Roces (regionalist from Aragón), by Heribert Barrera (Catalan republican) and by Francisco Letamendia (Basque Nationalist) in the Plenary session of the Congress of Deputies of July 4, 1978 (as reflected in Fernando Sáinz Moreno [ed.]: Constitución espa- ñola. Trabajos parlamentarios, Cortes Generales, Madrid, 1989, vol. II, pp. 1.860, 1.871, 1.874 and 1.878. 29. .This is precisely the title given to the chapter devoted to the constituent process in Josep María Colomer: La transición a la democracia…, cit.,pp. 114-145. 30. Francisco Rubio Llorente: “The Making of the Spanish Constitution”, cit., pp. 255 and 256. 31. Cortes.Diario de Sesiones del Congreso de los Diputados No. 130, of 31.10.1978, pp. 5.182-5.185; Cortes. Diario de Sesiones del Senado No. 68, of 31.10.1978, pp. 53.427-3.430 (reflected in Fernando Sáinz Moreno [ed.]: Constitución española. Trabajos parlamentarios, cit. supra, vol. IV, pp. 4.911-4.917 and 4.975-4.978). 32. El País, 22.12.1978, using data from the Central Electoral Board. See also José Ignacio Cases Méndez: “Re- sultados y abstención en el referéndum español de 1978”, Revista de Estudios Políticos No. 6 (1978), pp. 175-204. 33. A summary of their arguments can be found at the speech by Javier Arzallus explaining their vote on occasion of the passing of the Draft Constitution by the plenary of the Congress of Deputies, available in Cortes.Diario de Sesiones del Congreso de los Diputados No. 130, de 31.10.1978, pp. 5.185-5.187 (reflected in Fernando Sáinz Moreno [ed.]: Constitución española. Trabajos parlamentarios, cit. supra, vol. IV, pp. 4.917-4.919). 34. Ibidem. See also Andrés de Blas: “El referéndum constitucional en el País Vasco”, Revista de Estudios Políti- cos No. 6 (1978), pp. 205-215. 35. In a similar sense to the one here sustained, Jorge de Esteban, in “El proceso constituyente español, 1977- 1978”, cit. supra, pp. 303-305, talks about an “imprecise” and “unfinished” Constitution, adding the justifiable disqualification of being “hardly original”, and the not-so-realistic of being “excessively long”. 36. As is well known, the preparatory documents of the constitutional text and the transcript of the parliamentary debates which were verified in both houses were collected in a thorough and voluminous work –already mentioned in these pages– coordinated by Fernando Sáinz Moreno and published in four volumes by the Cortes Generales under the title Constitución española. Trabajos parlamentarios, which is the most relevant reference work in this regard. Therefore, and not wanting to push the limits of a reasonably set of bibliographical notes, references to the abundant literature that has addressed each of the six topics addressed below will be omitted hereinafter. 37. Regarding this issue, the tripartite classification proposed by Richard Gunther may be useful. In his opinion the Spanish constitutional process was closed, depending on the issue, drawing upon three different manners of solving conflicts: «total resolution of conflicts», «satisfactory regulation of conflicts» and «lack of an adequate agreement.» The only case included in this final section is precisely the Basque problem. See Richard Günther: “El proceso constituyente español”, Revista de Estudios Políticos No. 49 (1986), pp. 33-61, in pp. 48-50 (there is an English language version: “Constitution Making in Contemporary Spain”, in Keith Banting & Richard Simeon [eds.]: The Politics of Constitution Making: Varieties of National Experience, Mac- millan, London, 1984). 38. See, for all, Carlos Flores Juberías: “The Autonomy of Catalonia: the unending search for a place within pluralist Spain”, in Yash Ghai and Sophia Woodman, eds.: Practising Self-Government: A Comparative Study of Au- tonomous Regions, Cambridge University Press, Cambridge, 2013. pp. 228-257.

233 From Totalitarianism to Democratic and Legal State (View from the Outside)

Editorial Board:

V. Malinovskiy – Member of the Constitutional Council of the Republic of Kazakhstan A. Temerbekov – General Secretary of the Constitutional Council of the Republic of Kazakhstan B. Nurmukhanov – Head of Legal Department of the Constitutional Council of the Republic of Kazakhstan Z. Sharipova – Head of Analytical Department of the Constitutional Council of the Republic of Kazakhstan M. Murtazin – Advisor of the Chairman of the Constitutional Council of the Republic of Kazakhstan

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