LEGAL ALERT: On the New Constitutional Court of Kazakhstan: Main Facts
Dear Ladies and Gentlemen,
In March this year President Tokayev announced amendments to the Constitution of Kazakhstan. One of the amendments concerned with the establishment of the Constitutional Court (effectively instead of the Constitutional Council).
As we received many queries on the Constitutional Court and its features, we decided to address the Court’s main features in this note - shortly after we had the chance to look at the draft Constitutional Law “On the Constitutional Court of the Republic of Kazakhstan”.
1. The total number of judges at the Constitutional Court is 11 people (including its Chairman and the Deputy Chairman). The President appoints the Chairman with the consent of the Senate of the Parliament, and directly appoints four judges. Further, each of the Houses of Parliament (Majilis and Senate) appoints three judges.
2. Judges of the Constitutional Court are appointed for a term of six years. They are not allowed to serve more than two terms in a row.
3. The competence of the Constitutional Court is similar to the abolished Constitutional Council, namely:
(1) Resolution of disputes over the validity of: elections of the President, elections of members of Parliament, and the conduct of a republican referendum;
(2) Review of laws prior to President’s signature and resolutions of the Parliament subject to compliance with the Constitution, as well as review of international treaties prior to ratification;
(3) Official interpretation of the Constitution;
(4) Recognition of laws and other acts as unconstitutional, etc.
4. What is the difference between the Constitutional Court and the Constitutional Council?
The difference is the following: citizens and the Ombudsman from now on may directly request the Constitutional Court to decide on the compliance of legal acts with the Constitution. This right may be invoked on conditions stated in section 5 below.
5. As we understand the draft Constitutional Law, citizens may apply to the Constitutional Court in the following cases:
(1) If a court (for example, a court of general jurisdiction) applied a law or other legal acts in a specific dispute involving such a person;
(2) All judicial remedies are exhausted within the judicial system of Kazakhstan; and
(3) The motion is filed not later than one year after such exhaustion of remedies in the Kazakh court system;
Thus, the jurisdiction of the Constitutional Court appears to be very narrow: it effectively relates to supervision over compliance of laws or other acts to the Constitution and provided that citizens have exhausted all available judicial relief.
Contrary to expectations, the Constitutional Court will not hear appeals to ordinary cases even when they concern with human rights abuses (e.g. after the Supreme Court of Kazakhstan).
6. The Constitutional Court will admit motions in a two-stage procedure: (1) preliminary consideration and (2) resolution on merits.
As part of the preliminary consideration, the Constitutional Court might refuse to commence proceedings in the following cases:
(1) The motion is not within the competence of the Court;
(2) The motion is contrary to law in terms of form and content;
(3) The matter raised in the motion has already been reviewed, and there is a resolution of the Constitutional Court on this issue;
(4) The matter is not covered by the Constitution, and
(5) A legal act the constitutionality of which is being checked has been abolished.
7. The Constitutional Court considers motions within three months, but it may extend the term for a reasonable period of time.
8. Following its review, the Constitutional Court issues a resolution or an opinion. Resolutions of the Constitutional Court form part of the laws of Kazakhstan.