Challenging the legality of regulatory legal acts
Legality is a state of society in which, firstly, there is high–quality, consistent legislation, and secondly, accepted norms of law are respected and enforced by authorities, officials, organizations, and citizens.
In recent years, legislation has been significantly updated, and judicial protection of the rights and legitimate interests of citizens and organizations has been expanded.
From these positions, the study of judicial practice in cases of challenging the legality of regulatory legal acts becomes particularly relevant. In accordance with part 2 of article 13 of the Constitution, every citizen is guaranteed judicial protection of his rights and freedoms. Decisions and actions (or inaction) of state authorities, local self-government bodies, public associations and officials may be appealed to the court.
Cases of challenging normative legal acts are a new category of cases that are considered in courts.
The object of contestation here is a regulatory legal act adopted by a state authority or a local government body.
A normative legal act is a written official document of the prescribed form, adopted at a referendum or by an authorized body or official of the state, establishing legal norms, changing, terminating or suspending their operation, as well as a document in electronic and digital form identical to a written official document and certified by means of an electronic digital signature.
The current regulatory legal acts are binding on all citizens and legal entities. But what can a citizen or an organization do if, in their opinion, an existing act (for example, a minister's order) infringes on their rights or contradicts the Constitution?
Each of the regulatory legal acts of the lower level should not contradict the regulatory legal acts of the higher levels.
If there are contradictions in the norms of regulations of different levels, the norms of a higher-level act apply.
Cases of challenging normative legal acts affect the interests of an indefinite circle of people, that is, they affect common interests.
A citizen or legal entity subject to a regulatory legal act, who believes that a regulatory legal act of a state body or official adopted and published in accordance with the procedure provided for by law violates the rights and legally protected interests of citizens or legal entities guaranteed by the Constitution of the Republic of Kazakhstan, laws and decrees of the President of the Republic of Kazakhstan, has the right to apply to the court, on the recognition of this act as contrary to the law in whole or in a separate part.
Regulatory legal framework
It is necessary to actively apply the articles of the Constitution in the presence of a law or other normative legal act contradicting them, when this inconsistency is obvious and causes no doubt.
The Law "On Normative Legal Acts" establishes a hierarchy of normative acts depending on the ratio of their legal force.
Thus, the ratio of the legal force of normative legal acts, except for the Constitution, is set at the following descending levels:
1) laws introducing amendments and additions to the Constitution;
2) constitutional laws of the Republic of Kazakhstan and decrees of the President of the Republic of Kazakhstan having the force of constitutional law;
3) codes of the Republic of Kazakhstan;
4) laws of the Republic of Kazakhstan, as well as decrees of the President of the Republic of Kazakhstan having the force of law;
5) regulatory resolutions of the Parliament of the Republic of Kazakhstan and its chambers;
6) regulatory decrees of the President of the Republic of Kazakhstan;
7) regulatory resolutions of the Government of the Republic of Kazakhstan;
8) regulatory legal orders of the Ministers of the Government of the Republic of Kazakhstan and other heads of central government bodies, regulatory legal resolutions of central government bodies and regulatory resolutions of the Central Election Commission of the Republic of Kazakhstan;
9) regulatory legal decisions of maslikhats, regulatory legal decisions of akimats, regulatory legal decisions of akims. Outside of this hierarchy are the normative resolutions of the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan.
Each of the regulatory legal acts of the lower level should not contradict the regulatory legal acts of the higher levels.
If there are contradictions in the norms of regulations of different levels, the norms of a higher-level act apply.
The norms of laws in cases of their discrepancy with the norms of the codes of the Republic of Kazakhstan may be applied only after making appropriate amendments to the codes. If there are contradictions in the norms of normative legal acts of the same level, the norms of the act, which were put into effect later, apply.
According to article 62 of the Constitution of the Republic of Kazakhstan, legislative acts in the form of laws of the Republic of Kazakhstan are adopted by the Parliament of the Republic of Kazakhstan, which, in accordance with article 49 of this Constitution, is the highest representative body of the Republic performing legislative functions.
The laws come into force after they are signed by the President of the Republic of Kazakhstan. According to subparagraph 2) of paragraph 1 of Article 72 of the Constitution, before being signed by the President, laws adopted by Parliament are reviewed by the Constitutional Council of the Republic of Kazakhstan for their compliance with the Constitution of the Republic.
In accordance with Part 2 of Article 283 of the CPC, applications for challenging the legality of regulatory legal acts, the verification of which falls within the competence of the Constitutional Council of the Republic of Kazakhstan, are not subject to consideration in court.
So, Smadiev E.K., Shakirov B.Zh., Ilyasova I.S., Seisekenov T.A., Ryspaev E.S. appealed to the court to the Mazhilis of the Parliament of the Republic of Kazakhstan, the Senate of the Parliament of the Republic of Kazakhstan to recognize paragraphs 5, paragraph 2, art.33-4 of the Law of the Republic of Kazakhstan "On Advocacy" contrary to the norms of the Constitution of the Republic of Kazakhstan.
By the ruling of the Yesilky District Court of Astana dated 10.07.2015, the proceedings in this civil case were terminated. The plaintiffs raised the issue of recognizing paragraphs 5, paragraphs 2, Articles 33-4 of the Law of the Republic of Kazakhstan "On Advocacy" contrary to the norms of the Constitution of the Republic of Kazakhstan.
By virtue of paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan, Articles 36, 39, 40 of the Law of the Republic of Kazakhstan "On Regulatory Legal Acts", Article 283 of the CPC, the court has the right to verify the legality of only a subordinate regulatory legal act. The Constitutional Council of the Republic of Kazakhstan checks the compliance of laws (paragraphs 2 of Articles 72 and 78 of the Constitution).
According to paragraph 2 of Article 283 of the CPC, applications for challenging the legality of regulatory legal acts, the verification of which falls within the competence of the Constitutional Council of the Republic of Kazakhstan, are not subject to consideration in court.
According to article 18 of the Constitution of the Republic of Kazakhstan, everyone has the right to privacy, personal and family secrets, and the protection of their honor and dignity.
Contrary to the requirements of Article 65 of the CPC, the court has not been provided with factual evidence that the contested act violates the applicant's specific rights, freedoms and legally protected interests, which also does not comply with the provisions of Part 4 of Article 283 of the CPC.
Moreover, the court does not consider that the contested act contradicts the norms of Part 1 of Article 18 of the Constitution of the Republic of Kazakhstan.
1) So, Kozhakhmetova K.M. She filed a court application to the Government of the Republic of Kazakhstan, in which she asks to recognize the Standard of public services "Issuance of information on the presence or absence of information on the records of the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan on the commission of a crime by a person", approved by Government Decree No. 505 dated 05/17/2014, illegal and contrary to the requirements of Part 1 18 of the Constitution of the Republic of Kazakhstan, arguing that in December 2000 a criminal case was initiated against the plaintiff on the grounds of a crime., provided for in Part 1 of Article 223 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), which was terminated on the basis of Part 1 of paragraph 3 of Article 37 of the CPC.
In accordance with the Law of the Republic of Kazakhstan No. 393 dated 18.01.2011, Article 223 of the Criminal Code was decriminalized. However, when applying for a certificate of the presence (absence) of a criminal record, the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan issued information on the existence of a criminal case against the plaintiff, terminated on non-rehabilitating grounds, although by virtue of Article 79 of the Criminal Code the applicant has no criminal record.
Because of this certificate, the plaintiff is experiencing discomfort and stress, which he still remains in. He believes that this information is an obstacle to achieving his goals, career growth, etc. By the decision of the Yessil District Court of Astana dated 04/29/2015, the application of K.M. Kozhakhmetova to the Government of the Republic of Kazakhstan to challenge the legality of the regulatory legal act was denied.
According to subclause 9), clause 1, Article 31 of the Labor Code of the Republic of Kazakhstan, the provision of a certificate of the presence or absence of a criminal record is mandatory only when concluding an employment contract in the field of education, upbringing, recreation and recreation, physical culture and sports, medical care, social services, culture and art involving minors, since in by virtue of paragraph 3 of Article 26 of the Labor Code of the Republic of Kazakhstan, they are not allowed to work in the field of education, upbringing and development, recreation and recreation, physical culture and sports, medical care, provision of social services, culture and art with the participation of minors - persons who have or have had a criminal record, are being or have been subjected to criminal prosecution (with the exception of persons whose criminal prosecution has been terminated on the basis of paragraphs 1), 2) of the first part of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan) for crimes: murder, intentional infliction harm to health, against public health and morals, sexual integrity, for extremist or terrorist crimes, human trafficking, among which Kozhakhmetova K.M. does not apply.
In addition, in accordance with the norms of Article 79 of the Criminal Code of the Republic of Kazakhstan, the plaintiff is considered to have no criminal record, as a result of which, the availability of information about the criminal case against Kozhakhmetova K.M., which was terminated on 02/21/2001 on the basis of Part 1 of Article37 of the Criminal Procedure Code of the Republic of Kazakhstan, is not an obstacle to employment, including in the field of education, upbringing, recreation and recreation, physical education and sports, medical care, social services, culture and art involving minors.
Contrary to the requirements of Article 65 of the CPC RK, the court has not been provided with factual evidence that the contested act violates the applicant's specific rights, freedoms and legally protected interests, which also does not comply with the provisions of Part 4 of Article 283 of the CPC RK.
Moreover, the court does not consider that the contested act contradicts the norms of Part 1 of Article 18 of the Constitution of the Republic of Kazakhstan.
2) Thus, M.S. Bekbauova applied to the court to the General Prosecutor's Office of the Republic of Kazakhstan for recognition of paragraph 98 of the Rules for Maintaining and Using Certain Types of Special Records, approved by the Order of the Prosecutor General of the Republic of Kazakhstan No. 71 dated 07/10/2014, as illegal and contrary to the requirements of paragraph 3 of Article 33 of the Constitution of the Republic of Kazakhstan and Part 2 of Article 79 of the Criminal Code of the Republic of Kazakhstan, arguing Their demands are based on the fact that on October 09, 2006, the senior investigator of the MUFP in the Zhezgazgan district, senior lieutenant of the financial police, A.A. Sisengaliev, in relation to the plaintiff, M.S. Bekbauova. A criminal case has been opened on the grounds of a crime under Part 2 of Article 223 of the Criminal Code of the Republic of Kazakhstan. By the resolution of the Satpayev City Court of the Karaganda region dated 09.01.2007, the criminal case was terminated on the basis of Part 1 of Article 67 of the Criminal Code of the Republic of Kazakhstan, in connection with the reconciliation of the parties. By the resolution of the Satpayev City Court of the Karaganda region dated 07.11.2014, on the basis of art. 5, Part 1 of the Criminal Code of the Republic of Kazakhstan, Bekbauova Meruert Seitkasimovna was recognized as a person without a criminal record, since Article 223 of the Criminal Code of the Republic of Kazakhstan was decriminalized in accordance with the Law of the Republic of Kazakhstan No. 393 dated 18.01.2011. However, when applying for a certificate of the presence (absence) of a criminal record, the Committee on Legal Statistics and Special Accounts of the General Prosecutor's Office of the Republic of Kazakhstan provided information on the existence of a criminal case against the plaintiff, terminated on non-rehabilitating grounds, although by virtue of 79 of the Criminal Code of the Republic of Kazakhstan the applicant has no criminal record.
By the decision of the Yessil District Court of Astana dated 04/10/2015, the application of M.S. Bekbauova to the General Prosecutor's Office of the Republic of Kazakhstan for recognition of paragraph 98 of the Rules for Maintaining and Using Certain Types of Special Records, approved by the Order of the Prosecutor General No. 71 dated 07/10/2014, was denied.
By Decree of the Government of the Republic of Kazakhstan No. 505 dated 05/17/2014, a new Standard for public services "Issuance of information on the presence or absence of information on the records of the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan on the commission of a crime by a person" was introduced, on the basis of which Rules for maintaining and using certain types of special records were developed, approved by the order of the Prosecutor General of the Republic of Kazakhstan for No. 71 dated 07/10/2014 At the same time, the previously valid Standard of public service "Issuance of a certificate of the presence or absence of a criminal record", approved by the Decree of the Government of the Republic of Kazakhstan No. 1486 dated November 26, 2012, has become invalid.
It should be noted that the previous standard of public services provided for the possibility of issuing a certificate stating that an individual does not have a criminal record if the criminal record has been expunged or withdrawn in accordance with the procedure established by law.
However, the current standard of public services obliges to reflect all available information about the commission of a crime by a person, regardless of the cancellation or removal of a criminal record, as well as the recognition of a person without a criminal record.
In addition, by virtue of Part 9 of Article 79 of the Criminal Code of the Republic of Kazakhstan and paragraph 7) of paragraph 4 of Article 10 of the Law of the Republic of Kazakhstan "On Civil Service", the cancellation or removal of a criminal record cancels all legal consequences and is not an obstacle to admission to public service.
Consequently, the rule of the subordinate regulatory legal act provided for in paragraph 98 of the Rules for Maintaining and Using Certain Types of Special Records does not contradict the provisions of Part 4 of Article 33 of the Constitution, which enshrine the equal right to access to public service.
According to Article 7 of the Law of the Republic of Kazakhstan "On Local Public Administration and Self-Government in the Republic of Kazakhstan", the maslikhat acts that it issues on issues of its competence are decisions of the maslikhat.
In accordance with Article 10 of the same Law, local representative bodies may additionally regulate the procedure for holding meetings, rallies, marches, pickets and demonstrations, taking into account local conditions.
Thus, by the decision of the Pavlodar City Court dated 05/27/2015, in satisfaction of the application of Semenova E.A., with the involvement of interested parties, the Pavlodar city Maslikhat, the State Institution "Department of Justice of the Pavlodar region", the Akimat of Pavlodar on invalidation of the decision of the Pavlodar city Maslikhat No.88/18 dated 10/23. 2005 "On additional regulation of the procedure for holding rallies, marches pickets, peaceful gatherings and demonstrations" - refused.
At the hearing, the applicant and her representative, having supported the stated demands, asked to satisfy the application, they believe that the decision is discriminatory, since state bodies and officials of the state, the region and the city maslikhat have been granted the right to hold events in the city center.
The territory adjacent to the Avtomobilist sports complex on the outskirts of the city, which is not suitable for holding public events, has been designated for non-governmental events.
In turn, the representatives of the interested parties did not agree with the application, asking to be denied, since the decision was made lawfully and reasonably in accordance with the requirements of the law.
According to paragraph 2 of Article 88 of the Constitution of the Republic of Kazakhstan, Maslikhats make decisions on matters within their competence, and akims make decisions and orders that are binding on the territory of the relevant administrative–territorial unit.
According to Article 7 of the Law of the Republic of Kazakhstan "On Local Public Administration and Self-Government in the Republic of Kazakhstan", the maslikhat acts that it issues on issues of its competence are decisions of the maslikhat. The court finds the applicant's arguments that the contested decision does not comply with the requirements of the Constitution of the Republic of Kazakhstan, the Law, and the norms of the International Covenant on Civil and Political Rights untenable, since in accordance with art. According to Article 10 of the Law, local representative bodies may additionally regulate the procedure for holding meetings, rallies, marches, pickets and demonstrations, taking into account local conditions and in accordance with the requirements of this Law, the decision was made by the city maslikhat within its competence.
The contested decision was made in order to rationalize the use of urban infrastructure facilities in the interests of residents and guests of Pavlodar, to ensure security and law and order during mass socio–political, cultural and entertainment events, taking into account the wishes of the city's population.
Thus, the court considers that Semenova's statement is unfounded, the decision of the city maslikhat of 23.10.2005 No. 88/18 was adopted in accordance with the Constitution of the Republic of Kazakhstan, the Law and the norms of the International Covenant on Civil and Political Rights.
Grounds for refusal to accept the application
According to article 78 of the Constitution of the Republic of Kazakhstan, the courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of man and citizen enshrined in the Constitution.
If the court finds that a law or other normative legal act subject to its application infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional.
Subparagraph 2 of article 72 of the Constitution states that the Constitutional Council considers court appeals in cases established by article 78 of the Constitution.
Subparagraph 1 of paragraph 4 of Article 17 of the Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan" provides that the Constitutional Council, in accordance with paragraph 2 of Article 72 of the Constitution, considers appeals from courts to declare an act unconstitutional if the court, in accordance with article 78 of the Constitution, considers that the law or other normative legal act to be applied infringes on the provisions of the Constitution. human and civil rights and freedoms.
Similar requirements are stipulated in Article 6 of the CPC.
Thus, by the ruling of the Ust-Kamenogorsk City Court of the East Kazakhstan region dated 07/10/2015 in accepting the application of Svetlana Anatolyevna Romanova to the Ministry of Finance of the Republic of Kazakhstan, the Department of State Revenue for the East Kazakhstan region on invalidation in part of subparagraph 1) of paragraph 5 of Article 1 of the Law of the Republic of Kazakhstan No. 254-V "On Amendments and Additions to Certain legislative acts of the Republic of Kazakhstan on further simplification of the administration of justice, reduction of bureaucratic procedures" - refused on the following grounds.
Romanova S.A. appealed to the court with an application to the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the Ministry), the Department of State Revenue for the East Kazakhstan region (hereinafter referred to as the Department) for invalidation in part of subparagraph 1) of paragraph 5 of Article 1 of Law No. 254-V "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on issues of further simplification of the administration of justice and reduction of bureaucratic procedures."
In support of this, on November 17, 2014, the above-mentioned law was adopted, which was drafted with the participation of the Ministry and the Department.
He believes that the above paragraph contradicts the purpose of the law itself, which was adopted with the aim of further simplifying the administration of justice and reducing bureaucratic procedures.
This law has created additional procedures for filing appeals, cassation complaints, and supervisory petitions.
Accordingly, in the applicant's opinion, the procedure for the administration of justice has not been simplified, but on the contrary has created bureaucratic procedures, due to which she has lost the opportunity to exercise her inviolable and untouchable right of unhindered access to justice, since due to her property status she cannot pay a State fee, the amount of which exceeds her financial capabilities.
By the ruling of the Cassation Judicial Board of April 13, 2015, her cassation appeal against the decision of the Court of Appeal of September 25, 2014 was returned due to non-payment of the state fee.
She asked the court to invalidate the part of subparagraph 1) of paragraph 5 of Article 1 of Law No. 254-V "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on further simplification of the administration of justice and reduction of bureaucratic procedures."
In accordance with article 153 of the Code of Civil Procedure (hereinafter CPC), a judge refuses to accept a statement of claim if the application is not subject to consideration and resolution in civil proceedings.
Consequently, the recognition of an act as unconstitutional by virtue of the above is attributed to the competence of the Constitutional Council, which considers court appeals in cases pending before them, during the consideration of which the court will consider that the law or other normative legal act infringes on the rights and freedoms of persons participating in the case enshrined in the Constitution.
In such circumstances, the court of first instance concluded that it refused to accept the application, since it was not subject to consideration in civil proceedings.
Grounds for returning the application
In accordance with the requirements of the procedural legislation, a copy of the contested act or part of it must be attached to the application, indicating which media body and when the regulatory legal act was published.
So, E.E. Narymbaeva filed a court application to the Parliament of the Republic of Kazakhstan to appeal the regulatory legal act.
By a court ruling dated 16.03.2015, Narymbaev Ye.E.'s application was left without motion as not complying with the requirements of Articles 150, 151 of the CPC. The applicant should have clarified in which order the complaint was filed: in the order of Chapter 27 of the CPC RK or in the order of Chapter 28 of the CPC RK.
It was explained to the applicant that, in accordance with the requirements of the procedural legislation, a copy of the contested act or part of it must be attached to the application, indicating which media outlet and when the regulatory legal act was published. The applicant has not eliminated this point.
According to Part 2 of Article 155 of the CPC, if the plaintiff, in accordance with the instructions of the judge and within the time limit set by him, does not fulfill the requirements listed in the definition, the application is considered not filed and the judge's definition is returned to the plaintiff with all the documents attached to it.
The return of the application does not prevent the applicant from re-applying to the court with a claim or statement on the same subject, on the same grounds, if they eliminate the violation.
By the ruling of the Yessil District Court of Astana dated 04/03/2015, the application of E.E. Narymbaev to the Parliament of the Republic of Kazakhstan on appealing the regulatory legal act was returned with the documents attached to it.
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