The basics of law: education manual. 9786010403710

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Al-FARABI KAZAKH NATIONAL UNIVERSITY

G. B. Kabanbaeva

THE BASICS OF LAW Education manual

Almaty «Kazakh university Press» 2014

UDC 340(075.8) LBC 67.0я73 К12 Recommended by the Scientific Council of the law Faculty and Editorial and Publication Council of Al-Farabi Kazakh National University for publication

Reviewers: Doctor of Law, Professor G.A. Alibayeva Doctor of Law, Professor Z.K. Aiupova Doctor of Law, Professor A.F. Suleimanov

Kabanbaeva G.B. K 12 The basics of law: education manual. – Almaty: Kazakh university Press, 2014. – 226 p. ISBN 978-601-04-0371-0 The tutorial can afford with very accessible and clear main branches of Kazakhstani substantive law, procedural law, also the basics of international law. It clarifies all topics of educational program on the main branches of Kazakhstani law, defines the concept of law thoroughly and comprehensively, its terminology and principle, as well as the entire legal system of Kazakhstan. Author succeed in creating holistic and integrated work that can act as a catalyst for students, in order to gain basic judicial concepts and ideas about Kazakhstani law in English language, moreover it can be effectively used in the educational process by lecturers, researchers and students.

UDC 340(075.8) LBC 67.0я73

ISBN 978-601-04-0371-0

© Kabanbaeva G.B., 2014 © KazNU al-Farabi, 2014

CONTENT

SYLLABUS............................................................................................5 SECTION I. BASIC THEORY OF LAW Theme 1. Law: concept, basic features, place and role in society, sources of law, legal norms .................................................11 Glossary ............................................................................................18 Control questions ..............................................................................19 Theme 2. Legal relations: concept, features, types, participants (subjects), the basics of emergence, modification and termination ..............................................................20 Glossary ............................................................................................23 Control questions ..............................................................................24 Theme 3. Offence and legal liability: concept and types ...................24 Glossary ............................................................................................28 Control questions ..............................................................................29 SECTION II. MAIN BRANCHES OF KAZAKHSTANI SUBSTANTIVE LAW Theme 4. Basics of constitutional law ................................................29 Control questions ..............................................................................47 Theme 5. Basics of administrative law ................................................90 Glossary ............................................................................................95 Control questions ..............................................................................98 Theme 6. Basics of civil law .................................................................98 Glossary ............................................................................................109 Control questions ..............................................................................111 Theme 7. Basics of family law ..............................................................111 Glossary ............................................................................................119 Control questions ..............................................................................121 Theme 8. Basics of criminal law ..........................................................121 Control questions ..............................................................................124 Theme 9. Basics of environmental law ................................................124 Glossary ............................................................................................137 Theme 10. Basics of land law ...............................................................138 Glossary ............................................................................................147 Control questions ..............................................................................149 3

Theme 11. Basics of tax law .................................................................149 Glossary ............................................................................................159 Theme 12. Basics of labor law .............................................................160 Glossary ............................................................................................171 Control questions ..............................................................................174 SECTION III. MAIN BRANCHES OF KAZAKHSTANI PROCEDURAL LAW Theme 13. Basics of civil procedural law ............................................174 Glossary ............................................................................................187 Control questions ..............................................................................188 Theme 14. Basics of criminal procedural law ....................................189 Glossary ............................................................................................210 Control questions ..............................................................................213 SECTION IV. INTERNATIONAL LAW Theme 15. Basics of international law.................................................213 Glossary ............................................................................................223 Control questions ..............................................................................225

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Al-Farabi Kazakh National University Law faculty educational program specialty of «jurisprudence»

Approved at a meeting of Academic council of law faculty Protocol №___ from « ____»_______ 2013 y. Dean of law faculty _____________ SYLLABUS Module № «The basics of law» 2 course, r/g, autumn semester, 3 credits Lecturer: Kabanbaeva Gulbakyt Boribekovna., PhD, telephone number (8 727 3773336 (1261), e-mail: [email protected]. Teacher (seminar): Kabanbaeva Gulbakyt Borybekovna., PhD, telephone number (8 727 3773336 (1261), e-mail: [email protected]. Purpose and objective of discipline: Purpose: the main objective of teaching the subject called «The Basics of law» is clarifications of basic legal categories as concept of law, legal relations, offence, legal liability, legal system. Also, it can provide the basic knowledge about the national law system. Objective: main objective is to raise the legal awareness and legal culture in general. Competencies (results of teaching): at the end of the course students will know their basic rights, structure of the national legal system, basic legal categories. Prerequisites: History of Kazakhstan, economic theory. Post requisite: objects, which depend on the specialty. 5

STRUCTURE AND CONTENT OF DISCIPLINE Weeks 1 1

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Subject title Hours 2 3 Моdule 1 Concept of law and main legal categories. Lecture 1. 2 Law: concept, main features, place and role in society. Sources of law: concept, types and a brief description. Norms of law: concept, types, structure. Practical (laboratory) occupation 1. 1 IWST 1. Theory of state and law. Make a presentation. Lecture 2. The legal relations: concept, features, types, parties, basics of creation, modification and termination. The system of law: concept, internal structure, main branches and institutions of law. Practical (laboratory) occupation 1. IWST 1. The Republic of Kazakhstan – democratic and secular state. Lecture 3 . Offence: concept, basic features, types. Legal liability: concept, types, principles of legal liability. Practical (laboratory) occupation 1.

Max score 4

8 2

1 8 2

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IWST 1. The Republic of Kazakhstan – legal 7 and social state. Моdule 2 The main branches of modern Kazakhstani substantive law 4

5

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Lecture 4. Basics of constitutional law. Practical (laboratory) occupation 1. IWST 1. General description of Constitution of the Republic of Kazakhstan. Lecture 5. Basics of administrative law. Practical (laboratory) occupation 1. IWST 1. Examine the overall part of the Administrative Offences Code of the Republic of Kazakhstan Lecture 6. Basics of civil law. Practical (laboratory) occupation 1. IWST 1. Types of civil law transactions. Make the scheme.

2 1 10

2 1

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10 11

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2 Lecture 7. Basics of family law. Practical (laboratory) occupation 1. IWST 1. Declaration of the child rights. 1 Midterm Examination. Recitation of made topics. Lecture 8. Basics of criminal law. Practical (laboratory) occupation 1. Lecture 9. Basics of environmental law. Practical (laboratory) occupation 1. IWST 1. Actual problems of family law. Lecture 10. Basics of land law. Practical (laboratory) occupation 1. IWST 1. The functions of state in terms of environmental protection. Lecture 11. Basics of tax law. Practical (laboratory) occupation 1. Lecture 12. Basics of labor law. Practical (laboratory) occupation 1. IWST 1. Module 3. International law. Lecture 13. Basics of international law. Practical (laboratory) occupation 1. IWST 1. International organizations Module 4. The main branches of modern Kazakhstani procedural law Lecture 14. Basics of civil procedural law. Practical (laboratory) occupation 1. IWST 1. Сivil suit Lecture 15. Basics of criminal procedural law. Practical (laboratory) occupation 1. IWST 1. Appellate to the court trial

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1 5 5 2 1 2 1 10 2 1 10 2 1 2 1

2 1 10

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2 3 4 2 Midterm Examination. 10 Organize the sketch of judicial trial by the group Exams 100 TOTAL 300 Name The equivalent of score in numbers seminar 7 (weeks) х 6 score = 42 score IWST IWST = 53 балл 1 Midterm Examination 1х5 score = 5 score Total 100 score seminar 7 (weeks) х 6 score = 42 score IWST IWST = 48 score 2 Midterm Examination 1х10 score = 10 score Total 100 Examination 100

LIST OF REFERENCES Main: 1. Fundamentals of State and Law. The tables and diagrams. M., 1997. 2 . Ibrayeva A.S., N.S. Ibraev. Theory of State and Law. Almaty, 2003. 3 . Sidikov W. E., Ospanov K.I. Foundations of Law. Textbook. Almaty: KazNTU, 2004 . 4 . Sapargaliev G.S. Fundamentals of State and Law. Almaty, 2001. 5 . V.V. Lazarev. Basics of Law. Textbook. M, 1998. 6. Atzhanov T. J., Rodney A. M. Theory of State and Law (schemes and comments). Textbook. Kostanay ‒ Chelyabinsk, 2000 . 7. Dulatbekov N.O. Basics of State and Law of modern Kazakhstan. Astana, 2000. 8. Abdrasulov E.B. Interpretation of the law and constitutional norms: theory, experience, procedure. Almaty, 2002. 9. Rams A.A. Administrative law of the Republic of Kazakhstan . Academic course. Almaty, 2003 . 10 . Aitzhan B. E. Family Law. Training manual . Almaty 2003 . 11. Civil Law of the Republic of Kazakhstan . Ans. Ed. Tuleugaliev . G.I., and Maulenov K.S. Almaty: " Daneker " 1999. 12. Tax Law of the RK in the schemes . Almaty, 2002. 13. Dzhansaraeva R.E. Tests in criminal law. Almaty, 2000. 14. Kazakhstan Criminal Law (General Part). Textbook. Under. Ed. I. Rogov S.M. Baymurzin G.I. Almaty , 1998 . 8

15. Baymoldina Z.Kh. Civil Procedural Law of the RK. B‒ 2 vols . Textbook. Almaty, 2001. 16. Sherimova N.Sh. Employment Law questions and answers. Almaty "Daneker", 2001. 17. Kulteleev S.T. Environmental Law of the Republic of Kazakhstan : a tutorial . Almaty 2003 . 18. Hadjiev A.H. Land Law of RK. Almaty, 2002 . Additional: 1. The Constitution of the Republic of Kazakhstan (adopted on August 30 1995 at the republican referendum); 2. Law of the Republic of Kazakhstan dated October 7, 1998 № 284-I «On amendments and additions to the Constitution of the Republic of Kazakhstan» 3. Code of the Republic of Kazakhstan dated January 9, 2007 № 212-III «Environmental Code of the Republic of Kazakhstan" (with alterations and amendments as of 01.17.2014); 4. Code of the Republic of Kazakhstan on Administrative Offences dated January 30, 2001 № 155-II (with alterations and amendments as of 07.03.2014); 5. Code of the Republic of Kazakhstan dated December 10, 2008 № 99IV «On taxes and other obligatory payments to the budget (Tax Code)" (with alterations and amendments as of 03.07.2014); 6. Code of the Republic of Kazakhstan dated December 26, 2011 № 518-IV «On Marriage (Matrimony) and Family" (with alterations and amendments as of 15.01.2014 y; 7. Code of Civil Procedure of the Republic of Kazakhstan dated July 13, 1999 № 411-I (with alterations and amendments as of 03.07.2014); 8. The Civil Code of the Republic of Kazakhstan from July 1, 1999 № 409-I (Special Part) (with amendments as of 03.07.2014 y.); 9. The Civil Code of the Republic of Kazakhstan (General Part), adopted by the Supreme Council of the Republic of Kazakhstan December 27, 1994; 10. The Criminal Code of the Republic of Kazakhstan dated July 16, 1997 № 167-I (with alterations and amendments as of 07.03.2014); 11. Criminal Procedure Code of the Republic of Kazakhstan dated December 13, 1997 № 206-I (with alterations and amendments as of 17.01.2014); 12. Labor Code of the Republic of Kazakhstan dated May 15, 2007 № 251-III (with alterations and amendments as of 01.17.2014); 13. Land Code of the Republic of Kazakhstan dated June 20, 2003 № 442-II (with alterations and amendments as of 01.17.2014); 9

COURSE ACADEMIC POLICY All work must be performed and passed within a specified time. Students who do not pass a regular job, or received for his/her work less than 50% of points; have the opportunity to work on additional specified job schedule. Students can miss the lesson only for valid reason. Students, who fail to meet all types of work, will not be allowed to the examination. The evaluation takes into account the activity and attendance of students during lessons. The students should be tolerant and respect other people's opinions. The plagiarism and other forms of cheating are not allowed. It is unacceptable to cheat in the midterm and final examination, copying solved problems by others, and passing the examination on behalf of another student. The student will be convicted for falsifying any information of the course, any unauthorized access to the Intranet using cheat sheets. For advice, in order to implement individual student works (ISW), their performance and pass, as well as additional information on the covered material and all the other issues that occurred upon reading the course, feel free to contact the lecturer during his\her working hours. Revised at the meeting of the department protocol № __ from « __ » ___________ year. Head of the Chair Zhatkanbayeva A.E. Lecturer

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Kabanbayeva G.B.

SECTION I. BASIC THEORY OF LAW Theme 1. Law: concept, basic features, place and role in society, sources of law, legal norms Theme 1. Law: concept, main features, place and role in society, sources of law, norms of law. 1. What is the concept of law? 2. The main features of law 3. Place and role of law in society 4. What is understood by a source of law? 5. What types of sources of law exist? 6. Normative legal acts and their features 7. Classification of normative legal acts 8. What are the legal norm? 9. Types of norm of law

1. What is the concept of "law"? Responding to these and similar questions we should keep in mind that the law as well as the state, is not only the most important, also the most complex social phenomena. Trying to understand what the law is and what is its role in society, even the Roman lawyers noticed the fact that it is not confined to only one meaning. Surely, one of them wrote (Paul), that the law is used at least in two senses. Firstly, it means that law is always fair and kind, and can be considered as natural law. Secondly, the law ‒ that's how the Roman lawyers noted is "useful to everyone and it is affirmed by the state. Now it is understood as positive law. Due to the development of society and state, of course, the changes can be noticed in the concept of law. Ideas and philosophical thoughts of natural law reflected in the Constitution and current legislation of many states today. For example, the Constitution of the Republic of Kazakhstan expresses: "Human rights and freedoms belong to everyone from their birth, and is recognized as absolute and inalienable, determine the content and application of laws and other regulations" (Section 2, Art. 12). Influence of natural law ideas can be seen in the Japanese Constitution, which proclaims that "people freely use any of the fundamental human rights" and these rights are "guaranteed to the 11

people by this Constitution, provided for present and future generations as eternal and inviolate rights" (Art. 11). Influence of natural law also has taken place in other countries. One of the main factors influencing to the formation of ideas about the concept of law is the social significance of law in society and state. It is recognized that social right couldn’t be abstracted. It always expresses and strengthens the will and interests of the ruling class or classes. There are no rights, which are understood as "in general". It is always concrete and real. In modern domestic and foreign literature there is no single definition of law. However, among the many definitions of law and approaches to this definition can be distinguished regulatory or positive approach. In accordance with this, law is defined as a system of norms or rules which is conducted by the state, expressing the will and interests of the state and guaranteed by them from non-compliance or violations by individuals or legal entities. 2. The main features of law Despite the variety of definitions of law and the absence of a single definition about law, we can see the main features of law in domestic and foreign legal literature which can distinguish the law as a social phenomenon among others. The main features of law: a) consistency; b) normative; c) imperative, imperious character; g) universal validity and general availability; d) formality. Without touching all features characterizing the law as a phenomenon we consider only some of them. Consistency. Regardless of how the law is understood, it is always orderly, coherent and systemic. Law can never act as a simple aggregation. In real life, law, like any other system, is composed of the same order and it has interrelated and interacted elements. This is one of the essential requirements and at the same time one of the features of the real, existing law. Normativity. Normativity of law (from the word "norm", "norm of conduct") is predetermined by the nature and purpose of law as a set of rules of behavioral norms. 12

Imperative, imperious character. The law always has state-willed character. This is reflected in the fact that it has consistently expressed the will of the state as its basis. If we say about world experience law always expressed wills of conquer. Universal validity and general availability. General availability is an important opportunity for the parties of society to receive all necessary information about published or accepted legal acts timely. Universal validity means that law is compliant by all citizens, officials, government agencies and community organizations. Formal definition. Formal definitions of law ‒ specific characteristic of law, which means that the norms of law should always be in written form and fixed (the law, the normative content of the contract, etc.). 3. Place and role of law in society During the study of law, it is very important to identify its main features, also to understand its role and place in the life of every person and the whole society. In other words, its social significance, the nature and extent of its impact on human behavior, society and state. Functions of law are the most important channels of its impact on the reality of public life. Only by them, we can define social value and significance of the various systems of law, its place and role in society and the state. In the scientific legal literature, the functions of law are defined as the main directions of its impact on social relations. Functions of law: Regulator of social relations; It regulates the social, economic, political and other relations. Also establishes the law and social system in one country or another state’s education or training; Educational role of the law is manifested in the fact that it is intended to develop in people as s sense of justice, truth, goodness, humanity. Law enforcement function. It is often referred simply as a protective function. 4. What is understood by a source of law? Throughout the history of state and law, the world has developed many ideas about what is the "source of law". The term "source of law" sometimes understood as a philosophical sense, which indicates philosophical ideas (liberal, conservative, etc.) formed as the basis of legal system. 13

There are other definitions of meaning this term "source of law." But the most common theme is the approach to understand the source of law in the "legal sense". In accordance with this, source of law is understood as an officially recognized form of establishment, consolidation and expression of legal norms (rules of conduct) that exist and operate in a state. ‒ 5. What types of sources of law exist? In the history of state and law there were produced many types of sources, or as they are called, forms of law. The most important and most famous among them are the following: ‒ normative legal acts; ‒ legal customs; ‒ judicial precedents; ‒ legal agreements and etc. For example, important sources of Roman law can be considered as the usual business practices ‒ rules generated during everyday business practices consuls, praetors and other officials. For the Roman ‒ Germanic law characteristic source for a long time (XIIIXIX centuries) was considered as legal doctrine. As the most important forms (sources) of Islamic law is recognized the Quran ‒ holy book of Islam, Sunnah or traditions associated with the messages of Allah, ijma or single agreement Muslim society and qiyas or reasoning by analogy. 6. Normative legal acts and their features In the legal system of Kazakhstan and many other states leading role among the sources of law belongs to normative legal acts. For brevity, they are often called regulations. Under the normative legal acts we understand the set of legal norms which are expressed in written form, established by competent state bodies. In general, all legal acts has public nature. They are issued and sanctioned only by organs of the state and has strong-willed character, they contain and refracts them through state will. Normative legal acts issued by public authorities are: the laws, decrees, orders, regulations of the government, orders of ministers, decisions and resolutions taken by the local authorities. System of normative legal acts in each country is determined by the Constitution. 14

Thus, according the current Constitution of the Republic of Kazakhstan the highest representative and legislative body of the Republic of Kazakhstan is Parliament – it makes the laws. The President is head of state issue decrees and orders. 7. Classification of normative legal acts Traditionally, all legal acts are divided into two types or groups: laws and subordinate legislative acts. Criterion of their classification is legal force, in its turn to the latter depends on the position of authority which is issued one or another normative act. With regards to this criterion in each country or legal system must be established a strict hierarchy of normative legal acts. In the bottom of this hierarchy located regulations which are issued by local authorities. In the top of the hierarchy located the normative legal acts which a reissued by the higher authorities. These acts ‒ laws ‒ have the highest legal authority than subordinate legislative acts. Laws: their characteristics and types. In the system of normative legal acts laws occupy a central place and play a leading role. Being fundamental act in relation to all other sources of law, the laws are distinguished among them as the unique features. Law – this is the normative act which is adopted by the highest state authority (Parliament ‒ in the Republic of Kazakhstan, the Congress ‒ in the United States, the Parliament ‒ in Italy, Japan, etc.) representing the formal legal sense, which are directed by the people through a referendum. Constitutional laws Constitutional laws include legal acts such as the constitution of the state, the laws which make changes and additions to the constitution and laws, the adoption of which is stipulated by the constitution. Of course, the first place among constitutional law belongs to constitution. Constitution (from lat. Conslitutio ‒ setting device) is a fundamental legal act, which establishes the basic human rights and freedoms, the foundations of the state and public system. The Constitution acts as a starting legal beginning in relation to the current, as well as in relation to constitutional laws. Constitutional laws differ from the current laws and all other regulations not only by content, but also form, nature, order, decision, rewiring and additions. Any constitution is not only strictly 15

legal, but also political and ideological document by its nature. It has the highest legal force. The Constitution is generally defined as the Basic law of states that secures its foundations, as well as the basis of social and economic system of the country, customs and freedoms of man and citizen, form of government, organizations and authorities of state power and administration, organization and basic principles of operating electoral system and the administration of justice. Subordinate legislation: concept and features. Subordinate legislation is the legal act which is issued on the basis of laws and in accordance with laws. As well as the laws, they contain rules. They have mandatory character and always should be in written form. Legal custom is a source of law. It is a historically established and included as habit (because of its multiple repetitions) rules of conduct, which is approved and protected by the state. Precedent in the system of sources of law. In the legal systems of some countries precedent as a source of law is very important and play vital role. As the precedent we understood the decisions of judiciary on cases, which is considered as a kind of sample when considering the same or similar cases. There are two kinds of precedents: the court (for example, decisions in civil and criminal cases) and administrative (for example, decisions by the administrative authorities or administrative courts). Currently it is one of the main source of law in the legal systems of Australia, Britain, Canada, the USA and many other countries. In the legal system of the Republic of Kazakhstan precedent as a source of law is not officially recognized. 8. What is the legal norm? Over the entire period of the state and law, has developed many different definitions and concepts about legal norms. Legal norms is an obligatory rule sets which are conducted and enforced by the State on the basis of which there are legal rights and obligations of the parties. The legal norm is always a certain model of public relations, which is provided by the state. It has been always understood as a measure of proper behavior and cell of the whole system of law. 16

Key features of the norm of law: a) a direct connection between the rule of law with the state (issued or authorized by the state); b) expression of public will; c) universal considered as binding law; g) strict form of regulations contained in the law; d) reuse and duration sign of rules of law; e) their strict subordination and hierarchy; g) protection of law by the state; h) the use of state coercion in the case of violations contained in the law decrees. Internal structure of the law The structure of the legal norms is its internal, inner form, and elements. Components of the elements of norm of law: ‒ hypothesis; ‒ dispositions; ‒ sanctions. The hypothesis is a part of the rule of law which shows a specific life circumstances, the conditions, in compliance with this rules comes into effect or can be realized. For example, time of entry into legal force the rule of norm, to achieve a certain age, with regards to citizenship. For example, in the rules of art. 41 (Part 2) of the Constitution of the Republic of Kazakhstan says: "The President of the Republic of Kazakhstan may be a citizen of the Republic of Kazakhstan by birth, not younger than forty years, speak fluently in the official language and has been lived in Kazakhstan for the last fifteen years", hypothesis is the fact of belonging to a particular person to the state ‒ Republic of Kazakhstan, the fact of citizenship. Hypothesis indicates that the data refer only to the law of Kazakhstani citizens, do not relate to all other persons residing in its territory. Disposition acts as a part of the law, which contains the actual behavior of the rule of law and implements the rights and obligations of the parties. Disposition is basis and core of the rule of law. Without disposition the existence of rule of law can be impossible. Sanction is a part of the rule of law, which defines the consequences of its breach or default, provides measures of state influence on its violators. 17

Sanction always expresses the reaction of the state through its judicial, law enforcement and other authorities on the wrongful conduct of individuals or organizations. It gives legal sanction standards around the law obligatory character. Depending on the nature of the measures the state influence sanctions are divided into two types: penalties and recovery. Penalty sanctions are depriving the offender of certain benefits, to punish him\her by imprisonment, exile, and condemning performance by forced labor. Meaning of recovery sanctions is the restoration of violated rights, enforcing unfulfilled obligations or in assigning the person or organization illegally, and is obliged to compensate the caused damage. 9. Types of norm of law. Depending on the nature of their regulatory relations: a) substantive law; b) procedural law. Substantive law governs the economic, political, social, ideological and other material relations, determining the legal status of citizens, their rights and duties of all sorts. Procedural laws, do not regulate any economic, political or any other relations, but reinforce procedural forms (procedural rules and order) of the exercise and protection of substantive law rules. Depending on their belongings to the branches of law: A) norms of constitutional law; B) norms of administrative law; B) norms of civil law; D) norms of environmental law; E) norms of land law; F) norms of tax law; G) norms of insurance law; H) norms of the criminal law and etc. Glossary Law – право Legal custom ‒ правовой обычай Norm of law ‒ правовая норма Sources of law – источник права Legal relations – правоотношения 18

Legal capacity (правоспособность) Active legal capacity (дееспособность) Judicial fact – юридический факт Legal liability ‒ юридическая ответственность Subordinate legislation ‒ подзаконные акты Corpus delicti ‒ состав правонарушения Minor offence ‒ проступок Consistency – системность Normative – нормативность Penalties and recovery – штрафные и правовоствновительные Substantive law ‒ материальное право Procedural law – процессуальное право Hypothesis ‒ гипотеза Dispositions ‒ диспозиция Sanctions ‒ санкция Normative legal acts ‒ нормативные правовые акты Decrees and orders ‒ указы и распоряжения. Legal customs ‒ правовой обычай Judicial precedent – судебный прецедент Legal agreements – правовое соглашение Universal validity and general availability ‒ общеобязательность и общедоступность Control questions to the topic 1 What factors have had an influence to the formation of ideas about the law? What is meant by the "law"? What are the main features of law? What is the meaning of term called "normative character of law"? What is a "source of law "? What are the main types of sources of law? What are the characteristics of normative legal acts? How are they classified? What laws are classified as constitutional? What is meant by the legal contract? What is the internal structure of the rule of law? 19

What is the basis and core of the rule of law? What are the types of norm of law? Theme 2. Legal relations: concept, features, types, Participants (subjects), the basics of emergence, modification and termination 1. What are legal relations? 2. Distinctive features of legal relations 3. Content of legal relations 4. Subjects (participants, parts) of legal relations 5. Objects of legal relations 6. The basics of emergence, modification and termination of legal relations (juridical fact)

1. What are the legal relations? In judicial literature, there are numerous definitions of “legal relations”. However, the most common definition, according to which the legal relations can be considered as regulated by norms of public relations, whose members are bearers of subjective rights and judicial obligations, protected and guaranteed by the state. In reality legal relations represent a special kind of public relations. Mediating economic, political, social and other public relations, the legal relations can be considered as legal form of interaction between the involved people of these relations. 2. Distinctive features of legal relations Describing legal relations, it is necessary first of all to emphasize that they occur on the basis of legal norms, which can express and strengthen the state intent. Legal relations are such kind of social relation, which develop as a result of consciously intended actions of its participants. In contrast to economic, exactly industrial, relations that make the basis of society, and occur independently from intention and consciousness of people, legal relations carry out consciously intended character. 3. Content of legal relations Legal relations can be considered as numerous and multivarious connection of its involved people, which is carried out by their subjective rights and legal liabilities. Essence of legal relations is about the presence of subjective legal rights and legal liabilities, in terms of involved people. 20

What are the subjective legal rights? It is the measure of possible (permissible) conduct of a person to meet their legitimate interests, and also it is provided and protected by the state, in the manner prescribed by objective legal law. In contrast with the objective law, this is an aggregation (accumulation) or system of actually existing legal norms, the subjective law acts as the law, and belongs to certain subject and can be realized only as the sole discretion of person. Legal liability can be considered as statutory need for appropriate behavior of one person – subject of legal relation – in favor of another person, who is legally competent. Legal liability acts as special, required by the law, behavior of one liable person, in relation to other legally competent people with relevant subjective law. 4. Subjects (participants, parties) of legal relations The most important components of any legal relation can be considered as its subjects ‒ participants (involved people) of legal relations. The subject of rights (legal relations) can be defined as person or organization, which has subjective rights and legal liabilities before the state. It is universally acknowledged, that the subjects of rights can be considered as physical (private) entities like citizens, foreign people, stateless people, and legal entities like various bodies, associations, unions, etc. Legal capacity of legal relation subjects. In order to become a participant of legal relations, to the person, body, organization, association or any other institution, it is necessary to have legal capacity and active legal capacity. Legal capacity means the statutory ability of person or organization to be the bearer of subjective rights and liabilities. In legal theory and practice, there are three major types of legal capacity: general, industrial and special. General legal capacity ‒ this is the ability of any person or organization to be subject of rights. It is recognized by the state at birth. Industrial legal capacity – this is the legal ability of person or organization to be the subject of particular industries. In every industry of right, the time of occurrence may be different. Special legal capacity – this is the ability to be legal relations participant, which occur in connection with the occupation of certain positions (president, judge, member of parliament) or if the person is occupying certain categories of right subjects (employees of vehicles 21

(transportation), law enforcement, etc.). The emergence of special legal capacity always requires all significant conditions. Active legal capacity of legal relations subject. Active legal capacity of legal relations subject can be considered as the ability of person, regulated by the law – participant (involved person) of legal relations – in compliance with their direct actions acquire and implement subjective rights and legal liabilities. Character and scope of active legal capacity, as well as legal capacity is defined by the state and confirmed in various normative regulatory acts. 5. Objects of legal relations Issues on objects of legal relations, as well as their subjects, have fundamental importance, because only the presence of object causes the necessity for the emergence and existence of legal relations itself. Absence of the legal relations object invalidates the existence of any legal relations. Publically, there cannot be legal relation not only without subjects, but also without objects. In jurisprudence, there is no single answer to the question: what constitutes an object of legal relations, what can be defined as its meaning and content. However, all of the authors involved in these issue, agree on the fact that in the most general form, objects of legal relations can be considered as: a) something, which is the basis for emergence and existence of legal relations; b) something, which can be influenced by legal relations, and c) something, without which the existence of legal relations is meaningless. Objects of legal relations can be very different as following: 1) wealth in the form of money, property, things, values, immovable property; 2) intangible benefits, including the health, life, honor and dignity of the people, prestige, etc. 3) cultural values and documents; 4) various activities, associated with the production, distribution, exchange and consumption of various products and goods, human behavior, etc. 6. Basis for emergence, modification and termination of legal relations (legal facts) Essential meaning, in order to understand legal relations, can be defined as the study of basis for the emergence, modification and termination of their existence, called legal facts. Because for the emergence, modification and termination of legal relations, there is required not only an interest of subject rights, but 22

also certain life circumstances. The most common criterion for classification is the sign of strong-intention. In compliance with it, all legal facts are divided into actions and casus. Actions can be considered as those legal facts which entirely dependent on the intention of person who is participant of legal relations. Depending on the character of interrelations with right norms, actions are divided into lawful and unlawful. Lawful actions are expressed in human behavior, corresponding legal requirements and permissions. Unlawful actions – this is the actions that are not in conformity with the requirements of the law norms, and violate the legal commands. Casus as legal facts do not depend on the person’s intention, but entail emergence, modification or termination of legal relations, respectively subjective rights and legal liabilities. Not all casus in nature and society can be considered as the legal facts. And only those, which in one way or another affect the social life and relationships that exist in society. For example, natural disasters such as floods or earthquakes, entail the emergence of numerous legal not on its own, because of their emergence, but only because they are the direct cause of injury or loss of life , destruction of or damage to insured property, destroyed buildings, etc. Legal facts ‒ casus ‒ can be birth, illness or death of a person, fires, epidemics, and all others phenomena, which doesn’t depend on the intention and consciousness, and this is considered by legislation as legal relations. Glossary Subjective rights – субъективные права; Judicial obligations – юридические обязанности; Mediating – опосредуя; Consciously intended actions – сознательно волевые действия; Sole discretion of person – усмотрение лица; Statutory need – требуемый законом; General legal capacity – общая правоспособность; Industrial legal capacity – отраслевая правоспособность; Special legal capacity – специальная правоспособность; Emergence – возникновение; Modification – изменение; Termination – прекращение; 23

The sign of strong-intention – волевой признак; Actions – действия; Lawful actions – правомерные действия; Unlawful actions – неправомерные действия; Casus – события; Privateers of legal relations – частники правоотношений. Scheme to the theme 2 Appendix to the topic Control questions 1. What can be considered as the legal relations? 2. What is the difference between legal relations and illegal relations? 3. What is the "subjective rights" and "legal liabilities"? 4. What are the possible reasons (criteria) of legal relations classification? 5. Who can be a subject (participant, party) of legal relations? 6. What requirements can be apply to the subjects of legal relations? 7. What is the legal capacity \ “privateers of legal relations”? 8. What can be considered as legally competent person? 9. What can serve as basis (legal fact) of emergence, modification and termination of legal relations? 10. What criteria can be the basis of legal facts division into actions and casus? Theme 3. Offence and legal liability: concept and types 1. What is an offence? 2. Judicial composition of offence 3. Classification of offence. 4. Misconducts: concept, types. 6. Concept and features of legal liability 7. Types of legal liability

1. What is an offence? Offence can be considered as guilty, illegal, and harmful act to society of person with active legal capacity or with legal liability. Key elements of an offence. It should be noted, that first of all any offence is always a certain act, which is under the constant control of person’s intention and 24

consciousness. And this intention and consciousness is expressed in person’s action or inaction. Integral feature of offence is the illegal act. One of the most important features of offence is the presence of guilty. Guilty expresses the mental state and attitude of a person to illegal act commitment ‒ action or inaction, as well as the consequences of such act. It means the understanding or awareness of action’s illegality (inadmissibility) and its consequences. There are two forms of guilt: intent and negligence. Intent is considered, that person who commits illegal act, has social danger of action or inaction, anticipates their socially dangerous consequences and wishes (or permits) their occurrence. Negligence as a form of guilt has two types: the arrogance and carelessness. Arrogance is considered, that person anticipates socially dangerous consequences of his/her behavior, but lightly counts on avoiding them. Carelessness is considered, that person does not anticipate socially dangerous consequences of his\her actions, however they can and have to anticipate them. Carelessness indicates primarily on irresponsible and dismissive attitude of a person to fulfill his\her obligations, in terms of public interest and other individuals. Offences can be committed by person with delictual dispositive capacity, it means that they are capable to control their intention and behavior, to account for their actions, to be aware of their illegality and be able to take responsibility for their consequences. Delictual dispositive capacity is defined in the laws and other normative legal acts. As person with delictual dispositive capacity can be recognized all sane persons who have reached a certain age. For example, in civil and criminal law of the Republic of Kazakhstan delictual dispositive capacity comes with the full 18 years. At the same time, for certain types of crimes responsibility come with14 years, for administrative offences and violations of labor rights with16 years. The main distinctive feature of offence is the existence of harm to the individual or organization by another individual or organization, and the existence of causal connection between illegal act and inflicted harm. Apart from the above mentioned there are other, less important features of offence. 2. Judicial composition of offence In the concept of judicial composition, or offence composition 25

are generalized and grouped all characteristics and features of any offence by the following scheme: object, subject, objective and subjective party of offence. Object of offence can be those regulated and protected public relations by law, which are causing damage under the influence of illegal actions or inactions. Subject of offence can be recognized as physical and legal entities, which have the ability and opportunity to be legally responsible for their illegal acts (delictual dispositive capacity). Objective party of offence can be concerned as external characteristics, the description of illegal act by a person, who has committed this act. As the elements, which can constitute objective party of offence, are usually considered: a) the illegal action or inaction; b) the harm caused by their action or inaction to public relations; c) cause-and‒ effect relationship between committed illegal act and matured harm d) time, place and other circumstances in which illegal act was committed; e) ways and means of committing the offence. Subjective party of offence can be concerned as a person's mental state at the time of committing an offence. It maintains one of the guilt forms (intent or negligence) of illegal act, which is a prerequisite for holding liable. Guilt – this is the most important part of subjective party of offence. 3. Classification of offences and crimes In compliance with theory and accepted practice all offences are classified according to the characteristic of offence, the degree of harm and danger to public relations, as well as on the characteristic of sanctions for their commitment. As prescribed by the last criterion, all offences divided into crimes and misconduct. The most harmful and dangerous to society, its members and the state is a crime. Crimes can be defined as prohibited by criminal law considerably dangerous and guilty offences, which can cause significant damage to public relations and the established law order in society. By its characteristic, crimes are always considered as criminal offences. 4. Misconducts: concept and types Misconducts can be defined as guilty, illegal acts, which are in comparison with crimes have less social danger and entail the implementation of not criminal and legal sanctions, but measures of administrative, disciplinary or civil affect. Depending on the field of 26

public relations, which is harmed by illegal act and following the applied penalties all misconducts divided into administrative, disciplinary and civil (delicts). The distinctive feature of administrative misconducts can be considered, that they are committed in the field of state executive bodies activity and entail administrative liability. It can be expressed in the prevention, imposing administrative fine, deprivation of the special rights, conceded to physical entity. Disciplinary misconducts can be defined as harmful to social relations the illegal acts of physical entities, aimed at violating the internal regulations of companies, associations and institutions, as well as violation of labor, service, educational, military, and other disciplines. For example, Labor code of the Republic of Kazakhstan stipulates such disciplinary penalties for violation of labor discipline as remark, reprimand, and dismissal on appropriate reasons. Civil misconducts can be considered as offences, which are committed, concerning property and non-property relation with intellectual value for specific individuals, and for society. 5. Сoncept and features of legal liability Speaking about the concept of legal liability, it must be noted, that legal liability is one of the forms or varieties of general social responsibility. The latter one also includes the political, national, historical, party and many other varieties of responsibility. In domestic and foreign judicial literature, the term "legal liability" is defined differently, but describing its features, as a general rule, they are called the same. Unlike other types of social responsibility the legal liability, firstly always associated with state duress, which is expressed in the administration to offender the statutory sanctions. Secondly, it entails both public and state-legal adjudgement of offender. Thirdly, legal liability always accompanied by occurrence of negative consequences for the person who has violated the law, following the form of restrictions of personal or property order. And fourthly, it always occurs in the form of public relations, between the state represented by authorized bodies (bodies of inquiry, the court, prosecutors, and etc.) and offender. The state thus is authorized party and the offender is obliged. 6. Types of legal liability. The main types of legal liability include criminal, administrative, disciplinary, civil liability and material liability for damage caused by employee to employer. In 27

order to hold criminal liability, person has to be accused of crimes. Crimes can be defined as socially dangerous offence, which is prescribed by Criminal Code and laws. Administrative liability can be held for administrative misconduct, which under current law recognizes illegal, guilty action (inaction) of physical or legal entity, and hence for that the Republic of Kazakhstan Code of administrative offence stipulates the administrative liability. Serious practical problem, especially for our country is the development of property and other types of liability. Glossary Offence – правонарушение; Active legal capacity – дееспособность; Legal capacity – правоспособность; Legal liability – юридическая ответственность; Integral feature – неотъемлемый признак; Intent – умысел; Negligence – неосторожность; Anticipate – предвидеть; Arrogance – самонадеянность; Carelessness – небрежность; Lightly count on – легкомысленно рассчитывать на; Delictual dispositive capacity – деликтоспособность; Judicial composition – юридический состав; Object of offence – объект правонарушения; Subject of offence – субъект правонарушения; Objective party of offence – объективная сторона правонарушения; Subjective party of offence – субъективная сторона правонарушения; Prerequisite – необходимое условие; Cause-and-effect relationship – причинно-следственная связь; Matured harm – наступивший вред; Crime – преступление; Misconduct – проступок; Delicts – деликты; Remark – замечание; Reprimand – выговор; Dismissal – увольнение; 28

Latter – последнее (одного из двух) Bodies of inquiry – органы дознания; Hold criminal liability – привлекаться к уголовной ответственности. Control questions to the topic 3 1. What can be defined as offence? 2. What features it has? 3. What is the illegal act – actions or inactions? 4. How guilt can be considered as indication of offence? 5. What criteria can be the basis of offence classification? 6. What are the main features of crime? 7. What differs the offence from misconduct? 8. What types of misconducts are defined? 9. What can be defined as legal liability? 10. What differs legal liability from other types of social responsibility? 11. What are the main types of legal liability? 12. Expand their composition. 13. What are the principles of legal liability? SECTION II. MAIN BRANCHES OF KAZAKHSTANI SUBSTANTIVE LAW Theme 4. Basics of constitutional law 1. Concept of constitutional law 2. Sources of сonstitutional law 3. Constitution ‒ the main source and legal act of Kazakhstani law. 4. Diagram of the main important extracts from the Constitution

1. Concept of constitutional law Constitutional law can be considered as a set of legal rules, regulating the most important relations for society, state and individuals. By means of constitutional law norms, basis of state and social system, legal status of person and citizen, structure of state mechanism, form of state and local government are fixed. In the system of the Republic of Kazakhstan, constitutional law 29

occupies a leading position and plays a dominant role. On the one hand, it is determined by the importance of social relations, which are mediated and regulated by the norms of constitutional law, and on the other by their diversity and breadth. 2. Sources of constitutional law As sources of constitutional law can be concerned, the external form of establishing constitutional and legal norms. The sources of constitutional law include all legal acts, which contain the constitutional and legal norms. In the system of modern Kazakhstani law sources, there are two levels of constitutional law sources. First level includes: a) the constitution of the Republic of Kazakhstan; b) the ordinary laws; c) legal acts of chief executive officials, containing constitutional norms; d) individual acts of the executive authorities and other acts, taken due to republican referendum. Second level of Kazakhstani constitutional law sources includes individual acts of local governments. A special group of Kazakhstani constitutional law sources is international (intergovernmental) agreements; one of its parties is the Republic of Kazakhstan, individual acts of international organizations. Central place in the system of constitutional law sources, as well as in the whole system of the Republic of Kazakhstani law, has the Constitution of the Republic of Kazakhstan. It has supreme legal authority throughout the country. On its basis and in strict compliance with the enumerated principles and constitutionally legal norms all Kazakhstani legislations are formed. 3. Constitution ‒ the main source and law of Kazakhstani rights. The Constitution of the Republic of Kazakhstan is the main source of law and modern Kazakhstan. As previously mentioned, it defines and establishes the most important beginnings of the social and political life of Kazakhstan; basic human rights and freedoms of the citizen, form of government and state system, structure of state mechanism, electoral system, procedure for the formation of legislative and other state bodies, 30

also principles of their education and activities. Current Constitution of the Republic of Kazakhstan was adopted in August 30, 1995 by the nation-wide voting ‒ referendum. We would like to show a diagram of the main important extracts from the Constitution, thereby provide the student with a more detailed understanding of its content. 4. Diagram of the main important extracts from the Constitution The Constitution consists of nine chapters: Section I. General Provisions Section II. The Individual and Citizen Section III. The President Section IV. The Parliament Section V. The Government Section VI. The Constitutional Council Section VII. Court and justice Section VIII. Local public administration and self-administration Section IX. Concluding and transitional provisions Section I General Provisions The Republic of Kazakhstan proclaims itself as:  democratic  secular  legal  social state The fundamental principles of the activity of the Republic are:  public concord and political stability;  economic development for the benefit of all nation;  Kazakhstani patriotism;  resolution of the most important issues of the state affairs by democratic methods. The functioning law in the Republic of Kazakhstan:  the provisions of the Constitution  the laws corresponding to the Constitution 31

 other regulatory legal acts  international treaty and other commitments of the Republic as well as regulatory  resolutions of Constitutional Council and the Supreme Court of the Republic The Constitution must have the highest juridical force and direct effect on the entire territory of the Republic of Kazakhstan. The Republic of Kazakhstan has to: 1. recognize ideological and political diversity. 2. recognize the same taken protect state and private property. 3. promote conditions for the study and development of the languages of the Kazakhstani people. 5. respect principles and norms of international law, pursue the policy of cooperation and good-neighborly relations between states, their equality and non-interference in each other’s domestic affairs, peaceful settlement of international disputes and renounce the first use of the military force. 6. have its state symbols — the flag, emblem and anthem. The land and underground resources, waters, flora and fauna, other natural resources is owned by the state. The land may also be privately owned on terms, conditions and within the limits established by the law. Section II The Individual and Citizen 1. Human rights and freedoms in the Republic of Kazakhstan have to be recognized and guaranteed in accordance with the Constitution. 2. Human rights and freedoms have to belong to everyone by virtue of birth, recognized as absolute and inalienable, and define the contents and implementation of laws and other regulatory legal acts. 3. Every citizen of the Republic must have rights and bear responsibilities owing to his\her citizenship. 4. Foreigners and stateless people in the Republic shall enjoy rights and freedoms as well as bear responsibilities. 5. Exercise of a citizen’s human rights and freedoms must not 32

violate rights and freedoms of other people, infringe on the constitutional system and public morals. Еveryone must have: 1. the right to protect his\her rights and freedoms with all means not contradicting the law, including self-defense 2. the right to judicial defense of his\her rights and freedoms 3. the right to take qualified legal assistance 4. the equality before the law and court 5. the right to life 6. the right to personal freedom 7. the right to inviolability of private life, personal or family secrets, protection of honor and dignity 8. the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph and other messages 9. the right to determine and indicate or not to indicate his\her national, party and religious affiliations. 10. the right to use his\her native language and culture, to freely choose the language of communication, education, instruction and creative activities 11. the right to freely receive and disseminate information by any means not prohibited by the law 12. the right to freely move on the territory of the Republic of Kazakhstan and freely choose a place of residence 13. the right to leave the territory of the Republic of Kazakhstan 14. the right to freedom of conscience 15. the right to freedom of forming associations 16. the right to freedom of labor, and the free choice of occupation and profession 17. the right to safe and hygienic working conditions, to remuneration of labor without discrimination, as well as to social protection against unemployment 18. the right to rest 19. the right to freedom of entrepreneurial activity, and free use of his\her property for any legal entrepreneurial activity Nobody: 1. have the right to arbitrarily deprive life of a person. The death 33

penalty must be established by law, as an exceptional punishment for terroristic crimes, resorting to legal force, and also for especially grave crimes, committed in wartime, with granting to a sentenced person a right to appeal for pardon 2. can be subjected 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 3. can be subjected to torture, violence or other treatment and punishment, that is cruel or humiliating the human dignity 4. can be deprived of his\her property A citizen of the Republic of Kazakhstan has to: 1. be guaranteed a minimum wage and pension, and social security in old age, in case of disease, disability or loss of a breadwinner and other legal basics. 2. have the right to protection of health. 3. entitled to free, guaranteed, extensive medical assistance. 4. be guaranteed free secondary education in state educational establishments. Secondary education has to be obligatory. 5. have the right to receive on a competitive basis a higher education in a state higher educational institutions. 6. have the right to pay and receive an education in private educational institutions on the basis and terms, established by law. 7. have the right to peacefully and without arms assemble, hold meetings, rallies and demonstrations, street processions and pickets 8. have the right to participate in the government of the state’s affairs directly and through their representatives, to address personally as well as to direct individual and collective appeals to public and local self-administrative bodies. 9. have the right to elect and be elected into public and local selfadministrations as well as to participate in an all-nation referendum 10. have the equal right to serve in a public office Everyone must: 1. observe the Constitution, legislation of the Republic of Kazakhstan and respect the rights, freedoms, honor and dignity of other people. 2. respect the state symbols of the Republic. 3. pay legally established taxes, fees and other obligatory payments 34

4. defense the Republic of Kazakhstan, and this is the sacred duty and responsibility of its every citizen 5. care for the protection of historical and cultural heritage, and preserve monuments of history and culture 6. preserve nature and protect natural resources. Section III The President The President of the Republic of Kazakhstan is the head of the state, its highest official determining, the main guidelines of the domestic and foreign policy of the state and representing Kazakhstan within the country and in international relations. The President of the Republic of Kazakhstan is the symbol and guarantor of: ‒ unity of the people and state power ‒ inviolability of the Constitution, rights and freedoms of an individual and citizen. One and the same person may not be elected to the President of the Republic more than two times in a row. This restriction not applies to the First President of the Republic of Kazakhstan. The President of the Republic of Kazakhstan does not have the right to be a deputy of representative body, occupy other paid positions and engage in entrepreneurial activities. The President of the Republic of Kazakhstan has to: 1) annually address the people of Kazakhstan with a message on the state of the country and main guidelines of the domestic and foreign policy of the Republic of Kazakhstan; 2) Appoint regular and emergency elections to the Parliament of the Republic of Kazakhstan and its Chambers; 3) after consultations with factions of the political parties, represented in the Mazhilis of the Parliament, submit the candidature of Prime Minister of the Republic of Kazakhstan for approval by Mazhilis; appoint a Prime Minister of the Republic with the consent of the Mazhilis of the Parliament; 4) appoint to the positions of Chairperson of the National Bank, Prosecutor General and Chairperson of the National Security Committee 35

of the Republic with the consent of the Senate of Parliament with the Parliament's agreement; discharge them from office; 5) create, abolish and reorganize national bodies which are directly subordinate and accountable to the President of the Republic; 6) appoint and recall the heads of diplomatic representative offices of the Republic; 7) appoint the Chairperson and two members of the Central Election Commission, the Chairperson and two members of the Estimation Committee for Control over Implementation of the Republican Budget for a five year term; 8) approve national programs of the Republic; 9) approve the unified system of financing and labor payment for all bodies financed by the national budget of the Republic pursuant to the proposal of the Prime Minister of the Republic; 10) adopt a resolution on conduct of the national referendum; 11) conduct negotiations and sign international treaties of the Republic; sign ratification instruments; letters of credentials and recall from diplomatic and other representatives of foreign states accredited to them; 12) act as the Commander-in-Chief of the Armed Forces of the Republic, appoint and discharge from office the highest command of the Armed Forces; 13) award state decorations of the Republic; confer honorary, highest military and other ranks, ranked positions, diplomatic ranks and qualification degrees; 14) resolve issues of citizenship of the Republic, and granting of political asylum; 15) exercise apologize of citizens; 16) in the event of a serious and immediate threat to the democratic institutions of the Republic, its independence and territorial integrity, political stability of the Republic, security of its citizens and disruption of normal functioning of the Constitutional bodies of the state, after official consultations with Prime Minister and Chairpersons of the Parliamentary Chambers of the Republic take measures dictated by the above circumstances including imposition of a state of emergency on the entire territory and in particular areas of Kazakhstan, and immediately inform the Parliament of the use of the Armed Forces of the Republic; 36

17) in the case of aggression against the Republic or immediate external threat to its security, the President may impose martial law on the entire territory of the Republic or in its particular areas, declare a partial or total mobilization and immediately inform the Parliament of the Republic about it; 18) form the Republican Guard and the Presidential Guard subordinated to the President; 19) appoint to and discharge from office the State Secretary of the Republic of Kazakhstan, determine their status and powers; form the Administration of the President of the Republic; 20) form the Security Council and other consultative and advisory bodies as well as the Assembly of people of Kazakhstan and the Supreme Judicial Council; 21) exercise other powers in accordance with the Constitution and the laws of the Republic. Section IV Parliament of the Republic of Kazakhstan is the highest representative body of the Republic performing legislative functions. Parliament has to consist of two Chambers: the Senate and the Mazhilis The Senate has to be composed of deputies: 1. in the procedure stipulated by the Constitutional Law representing by two individuals from each region, city of the Republic, significance and capital of the Republic of Kazakhstan; 2. fifteen deputies of the Senate has to be assigned by the President of the Republic. The term of powers of the Senate’s deputies should be within six years, and the term of the deputies of the Mazhilis should be within five years. The Mazhilis has to consist of:  election of the ninety eight deputies of the Mazhilis, and should be carried out on the basis of the universal, equal and direct suffrage by secret ballot.  nine deputies of the Mazhilis should be elected by the Assembly of the Kazakhstani people. 37

A deputy of the Parliament should be a person:  who is a citizen of the Republic of Kazakhstan  who has been a permanent resident for the last ten years on its territory. A deputy of the Senate may be a person who:  has reached thirty years of age;  has a higher education;  has length of service of not less than five years;  has been a permanent resident for not less than three years on the territory of the main regions, city of the Republic significance or the capital city of the Republic. A deputy of the Mazhilis may be a person:  who has reached twenty-five years of age. The powers of a deputy of the Parliament have to be terminated in cases of:  resignation;  death;  being recognized as incapable, dead or untraceable by valid judgment of the court;  and in other cases stipulated by the Constitution and the Constitutional law. A deputy of the Parliament has to be deprived of his\her mandate in cases of: 1) his\her departure for permanent residence beyond the Republic of Kazakhstan; 2) the entry into force of the court conviction against him\her; 3) loss of citizenship of the Republic of Kazakhstan. A deputy of the Mazhilis of Parliament has to be deprived of his\her mandate in cases of: 1) withdrawal or expulsion of a deputy from a political party, from which, in accordance with constitutional law, he\she has been elected; 2) termination of a political party, from which, in accordance with constitutional law, the deputy elected. 38

Parliament at a joint session of the Chambers shall: 1) introduce amendments and supplements to the Constitution pursuant to the proposal of the President of the Republic of Kazakhstan; 2) approve the reports of the Government and the Estimation Committee for Control over Implementation of Republican Budget on the implementation of the national budget. Disapproval by the Parliament of the Government report on the implementation of the national budget meaning the expression of vote of non-confidence to the Government by Parliament; 3) have the right to delegate him\her legislative powers for a term not exceeding one year by two-thirds of votes from total number of deputies of each Chamber pursuant to the initiative of the President; 4) decide issues of war and peace; 5) make decision to the use of Armed Forces of the Republic pursuant to the proposal of the President of the Republic to fulfill international obligations for the maintenance of peace and security; 6) take a notion of annual messages of the Constitutional Council on the state of the constitutional legality in the Republic; 7) form joint commissions of the Chambers, elect and discharge from office their chairmen, take a notion of reports on the activity of the commissions; 8) Exercise other powers assigned to the Parliament by the Constitution. The Parliament chambers separate session of the Chambers through consecutive consideration of issues first in the Mazhilis and then in the Senate shall adopt constitutional laws and laws as well as: 1) approve of the national budget, introduce it with amendments and supplements; 2) establish and annul state taxes and dues; 3) establish the procedure of resolving the issues of the administrative-territorial division of the Republic of Kazakhstan; 4) institute state awards, honorary, military and other titles, ranked positions, diplomatic ranks of the Republic of Kazakhstan, and determine state symbols of the Republic; 5) decide issues of state loans and rendering of economic and other assistance by the Republic; 6) resolve issues of amnesty; 7) ratify and denounce international treaties of the Republic. 39

The Parliament at a separate session of the Chambers through consecutive consideration of issues first in the Mazhilis and then in the Senate shall: 1) discuss reports on implementation of the national budget; 2) conduct a repeated discussion and voting on the laws or articles of a law caused objections of the President of the Republic within a month term from the day of submission of the objections. Failure to comply with this term shall mean acceptance of the President’s objections. If the Mazhilis or the Senate by two-thirds of the majority vote from total number of the deputies of each Chamber approve the previous decision, the President within a month shall sign the law. If the President's objections are not overcome at least by one of the Chambers, the law shall be considered as not adopted or adopted in the wording proposed by the President. Objections of the Head of State to constitutional laws adopted by the Parliament shall be considered in the procedure stipulated by this sub-item. In this case the President's objections to the constitutional laws shall be overcome by the Parliament at least by three-fourths of votes from total number of the deputies of each Chamber. 3) Initiate assignment of the national referendum. The following shall belong to exclusive jurisdiction of the Senate: 1) election and discharge from office the Chairperson of the Supreme Court and judges of the Supreme Court of the Republic pursuant to the proposal of the President of the Republic of Kazakhstan, and acceptance of their oath; 2) approval of the appointment of the Chairperson of the National Bank, General Prosecutor and the Chairperson of the Committee of National Security by the President of the Republic of Kazakhstan; 3) deprivation of inviolability of the General Prosecutor, the Chairperson and judges of the Supreme Court of the Republic; 4) execution of the functions of Parliament of the Republic on adoption of the constitutional laws and laws within the period of absence of the Mazhilis caused by the early termination of its powers; 5) carrying out of other powers vested to the Senate of the Parliament by the Constitution. 40

The following belongs to exclusive jurisdiction of the Mazhilis: 1) accepting of drafts of the constitutional laws and laws submitted by the Parliament for consideration; 2) giving consent to the President on the appointment of the Prime-Minister of the Republic by majority vote from the total number of deputies; 3) announcing of the regular elections of the president of the Republic; 4) carrying out of other powers vested to the Mazhilis of the Parliament by the Constitution. The Mazhilis shall have the right to pass a vote of noconfidence to the Government by majority vote from total number of deputies of the Mazhilis pursuant to the initiative of no less than onefifths from total number of deputies of the Mazhilis. The right of a legislative initiative shall belong:  to the President of the Republic;  the Deputies of the Parliament;  to the Government and have to be realized exclusively in the Mazhilis. Parliament shall have the right to issue laws that regulate the most important public relations, establish fundamental principles and standards dealing with: 1) legal capacity of individuals and legal entities, civil freedoms and rights, obligations and responsibility of individuals and legal entities; 2) conditions of ownership and other rights of property; 3) foundations of organization and activity of state bodies and bodies of local self-administration, state and military service; 4) taxation, establishment and levying of duties and other obligatory payments; 5) the republican budget; 6) issues of the judicial system and legal proceedings; 7) education, health care and social provision; 8) privatization of enterprises and their property; 9) environmental protection; 10) administrative-territorial structure of the Republic; 41

11) ensuring defense and security of the state. All other relations shall be regulated by legislative acts. The Government The Government shall implement the executive power of the Republic of Kazakhstan, head the system of executive bodies and exercise supervision of their activity. The Government shall be a collegial body and in its entire activity responsible before the President of the Republic, and in the cases provided by the Constitution, before the Mazhilis and the Parliament. Members of the Government shall be accountable to the Chambers of Parliament in the case stipulated. The jurisdiction, the procedure of organization and activity of the Government shall be determined by constitutional law. The Government shall be formed by the President of the Republic of Kazakhstan according to the procedure stipulated by this Constitution. Suggestions about the structure and composition of the Government shall be submitted to the President of the Republic of Kazakhstan by the Prime Minister of the Republic within ten days after his\her appointment. The members of the Government shall take an oath to the people and President of Kazakhstan. The Government shall: 1) develop the main directions of the socio-economic policy of the state, its defense capability, security, guarantee of public order and organize their realization; 2) present to the Parliament the republican budget and a report about its performance, ensure implementation of the budget; 3) introduce draft of laws into the Mazhilis and ensure enforcement of laws; 4) organize management of state property; 5) develop measures for the conduct of the foreign policy of the Republic of Kazakhstan; 6) manage the activity of ministries, state committees, other central and local executive bodies; 7) annul or suspend completely or partially, the effect of acts of ministries, state committees, other central and local executive bodies of the Republic; 42

8) appoint to and release from office heads of central executive bodies not encompassed by the Government; 9) perform other functions assigned to it by this Constitution, laws and acts of the President. The Prime Minister of the Republic of Kazakhstan shall: 1) organize and supervise the work of the Government, personally answer for his\her work; 2) sign resolutions of the Government; 3) report the main directions of the Government’s activity and all of his\her important decisions to the President; 4) perform other functions connected with organization and supervision of the Government’s activity. Members of the Government shall be 1. Independent in making decisions within their competence and bear personal responsibility before the Prime Minister for the activity of bodies subordinated to them. A member of the Government who does not agree with the policy, pursued by the Government, or who does not pursue it shall resign or subjected to release from his office. 2. Members of the Government shall not have right to be deputies of a representative body, hold other paid offices except teaching, scientific and other creative activities, engage in entrepreneurial activity, enter governing body or a supervisory board of a commercial organization, except for cases when it is their job responsibilities according to the legislation. Section VI The Constitutional Council The Constitutional Council of the Republic of Kazakhstan shall consist of seven members whose powers shall last for six years. The ex-Presidents of the Republic shall have the right to be life-long members of the Constitutional Council. The Chairperson of the Constitutional Council shall be appointed by the President of the Republic, and in case the votes are equally divided, his vote shall be decisive. Two members of the Constitutional Council shall be appointed by the President of the Republic, on two members shall be appointed accordingly by the Senate and the Mazhilis. Half of the members of 43

the Constitutional Council shall be renewed every three years. The Constitutional Council by appeal of the President of the Republic of Kazakhstan, the chairperson of the Senate, the Chairperson of Mazhilis, not less than one-fifth of the total number of deputies of Parliament, the Prime Minister shall: 1) 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; 2) consider the laws adopted by Parliament with respect to their compliance with the Constitution of the Republic before they are signed by the President; 3) consider the international treaties of the Republic with respect to their compliance with the constitution, before they are ratified; 4) officially interpret the standards of the Constitution; Section VII Court and justice 1. Justice in the Republic of Kazakhstan shall be exercised only by the court. 2. Judicial power shall be exercised through the constitutional, civil, administrative, criminal and other forms of judicial procedure as established by law. The courts of the Republic shall be:  the Supreme Court of the Republic,  local  other courts of the Republic established by law. In application of law a judge must be guided by the following principles: 1) a person shall be considered to be innocent of committing a crime until his guilt is established by a court’s sentence that has come into force; 2) no one may be subject twice to criminal or administrative prosecution for one and the same offense; 3) no one may have his jurisdiction, as stipulated by law changed without his consent; 4) everyone shall have the right to be heard in court; 44

5) the laws establishing or intensifying liability, imposing new responsibilities on the citizens or deteriorating their conditions shall have no retroactive force. If after the commitment of an offense accountability for it is canceled by law or reduced, the new law shall be applied; 6) the accused shall not be obligated to prove his innocence; 7) no person shall be compelled to give testimony against oneself, one’s spouse and close relatives whose circle is determined by law. The clergy shall not be obligated to testify against those who confided in them with some information at a confession; 8) any doubts of a person’s guilt shall be interpreted in the favor of the accused; 9) evidence obtained by illegal means shall have no juridical force. No person may be sentenced on the basis of his own admission of guilt; 10) application of the criminal law by analogy shall not be allowed. Judges may be:  citizens of the Republic;  who have reached twenty-five years of age;  have a higher juridical education;  length of service of not less than two years in the legal profession;  who have passed a qualification examination. The Chairperson and judges of the Supreme Court of the Republic of Kazakhstan shall be elected by the Senate at the proposal of the President of the Republic, based on a recommendation of the Highest Judicial Council. The Chairpersons and judges of local and other courts shall be appointed by the President of the Republic at the recommendation of the Highest Judicial Court. The Chairperson and judges of the Supreme Court of the Republic of Kazakhstan shall be elected by the Senate at the proposal of the President of the Republic based on a recommendation of the Highest Judicial Council. The Chairpersons and judges of local and other courts shall be appointed by the President of the Republic at the recommendation of the Highest Judicial Court. 45

The procurator’s office on behalf of the state shall exercise:  the highest supervision over exact and uniform application of law, the decrees of the President of the Republic of Kazakhstan and other regulatory legal acts on the territory of the Republic,  legality of preliminary investigation,  inquest and inspection,  administrative and executive legal procedure;  and take measures for exposure and elimination of any violations of the law,  the independence of courts as well as the appeal of laws and other regulatory legal acts contradicting the Constitution and laws of the Republic. The Prosecutor’s office of the Republic shall represent interest of the state in court as well as conduct criminal prosecution in cases using procedures and within the limits, stipulated by law. Section VIII Local public administration and self-administration Local public administration shall be exercised by local representative and executive bodies which are responsible for the state of affairs of the respective territory. Local representative bodies ‒ Maslikhats ‒ shall express the will of the population of respective administrative-territorial units and with regard to the common public interests shall determine the measures needed for its realization, and control their implementation. Maslikhats shall be elected by the population on the basis of universal, equal suffrage under secret ballot for a five-year term. A deputy of Maslikhat may be a citizen of the Republic of Kazakhstan who has reached twenty years of age. A citizen of the Republic may be a deputy of only one maslikhat. The jurisdiction of Maslikhats shall include: 1) approval of plans, economic and social programs for development of the territory, local budget and reports of their performance; 46

2) decision of issues of local administrative-territorial organization in their jurisdiction; 3) consideration of reports by heads of local executive bodies on the issues delegated by law to the jurisdiction of Maslikhat; 4) formation of standing commissions and other working bodies of Maslikhat, nearing reports about their activity, decision of other issues connected with organization of the work of Maslikhat; 5) exercise other authorities for insuring of the rights and legitimate interests of citizens in accordance with the legislation of the Republic. 5. The powers of Maslikhat shall be prematurely terminated by the President of the Republic, and also in the case of adoption of a decision about self-dissolution. 6. The jurisdiction of Maslikhats, procedure of their organization and activity, and legal status of their deputies shall be established by law. The jurisdiction of local executive bodies shall include: 1) development of drafts of plans, economic and social programs for development of the territory, local budget and provision of their realization; 2) management of public property; 3) appointment to and release from office the heads of local executive bodies, resolution of other issues connected with organization of the work of local executive bodies; 4) exercise other powers delegated to local executive bodies by the legislation of the Republic in the interests of local public administration. Control questions 1. What is the role of Constitutional law in the Kazakhstani law system? 2. Adoption method of Constitution of the Republic of Kazakhstan in 1995 and its main features. 3. What is the procedure for modification and revising the current constitution? 4. Give the general characteristics of the Republic of Kazakhstan, and form of government. 47

5. What are the principles of construction and functioning of the Republic of Kazakhstan? 6. What features does the constitutional and legal status of the Republic of Kazakhstan have? 7. What is the role of the Republic of Kazakhstani Parliament in state mechanism? Annex 1 to the topic CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN Adopted on August 30, 1995 at the republican referendum. Entered into force on September 5, 1995 on the day the results of referendum were published. The amendments and additions made by Law of the Republic of Kazakhstan dated on October 7, 1998, Law of the Republic of Kazakhstan dd. May 21, 2007, Law of the Republic of Kazakhstan dated on February 2, 20011. In accordance with the Decree of the President of the Republic of Kazakhstan dated on September 6,1995 № 2454 «Of the Constitution of the Republic of Kazakhstan» SectionI. General Provisions Section II. The Individual and Citizen Section III.The President Section IV.The Parliament Section V. The Government Section VI. The Constitutional Council Section VII.Court and justice Section VIII.Local public administration and self-administration Section IX. Concluding and transitional provisions «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, committed to the ideals of freedom, equality and concord, 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, adopt this Constitution». 48

Section I General Provisions Article 1 1. The Republic of Kazakhstan proclaims itself as a democratic, secular, legal and social state whose highest values are: an individual, his life, rights and freedoms. 2. The fundamental principles of the activity of the Republic are: public concord and political stability; economic development for the benefit of all the nation; Kazakhstan patriotism and resolution of the most important issues of the affairs of state by democratic methods including voting at the republican referendum or in the Parliament. Article 2 1. The Republic of Kazakhstan is a unitary state with a presidential form of government. 2. The sovereignty of the Republic shall cover the whole of its territory. The state shall ensure the integrity, inviolability and inalienability of its territory. 3. The administrative-territorial division of the Republic, the status of its capital shall be determined by the law. The Capital of Kazakhstan is Astana city. 4. The names «Republic of Kazakhstan» and «Kazakhstan» shall be equal. Article 3 1. The people shall be the only source of state power. 2. The people shall exercise power directly through the all-nation referendum and free elections, as well as delegate the execution of their power to state institutions. 3. Nobody shall have the right to arrogate the power in the Republic of Kazakhstan. Arrogation of power shall be persecuted by law. The right to act on behalf of the people and the state shall belong to the President as well as to the Parliament of the Republic within the limits of the constitutional powers. The government and other state bodies shall act on behalf of the state only within the limits of their delegated authorities. 4. The state power in the Republic of Kazakhstan shall be unified and executed on the basis of the Constitution and laws in accordance with the principle of its division into the legislative, executive and 49

judicial branches and a system of checks and balances, which governs their interaction. Article 4 1. The provisions of the Constitution, the laws corresponding to it, other regulatory legal acts, international treaty and other commitments of the Republic as well as regulatory resolutions of Constitutional Council and the Supreme Court of the Republic shall be the functioning law in the Republic of Kazakhstan. 2. The Constitution shall have the highest juridical force and direct effect on the entire territory of the Republic. 3. International treaties ratified by the Republic shall have priority over its laws and be directly implemented except in cases, when the application of an international treaty requires the issuance of law. 4. All laws, international treaties of which the Republic is a party, shall be published. Official publication of regulatory legal acts, dealing with the rights, freedoms and responsibilities of citizens shall be the necessary condition for their application. Article 5 1. The Republic of Kazakhstan shall recognize ideological and political diversity. The formation of political party organizations in state bodies shall not be permitted. 2. Public associations shall be equal before the law. Illegal interference of the state in the affairs of public associations, and of public associations in the affairs of the state, imposing the functions of state institutions on public associations shall not be permitted. 3. Formation and functioning of public associations pursuing the goals or actions directed toward a violent change of the constitutional system, violation of the integrity of the Republic, undermining the security of the state, inciting social, racial, national, religious, class and tribal enmity, as well as formation of unauthorized paramilitary units shall be prohibited. 4. Activities of political parties and trade unions of other states, religious parties as well as financing political parties and trade unions by foreign legal entities and citizens, foreign states and international organizations shall not be permitted in the Republic. 5. Activities of foreign religious associations on the territory of the Republic as well as appointment of heads of religious associations in the Republic by foreign religious centers shall be 50

carried out in coordination with the respective state institutions of the Republic. Article 6 1. The Republic of Kazakhstan shall recognize by the same token protect state and private property. 2. Property shall impose obligations, and its use must simultaneously benefit the society. Subjects and objects of ownership, the scope and limits of the rights of proprietors, and guarantees of their protection shall be determined by law. 3. The land and underground resources, waters, flora and fauna, other natural resources shall be owned by the state. The land may also be privately owned on terms, conditions and within the limits established by legislation. Article 7 1. The state language of the Republic of Kazakhstan shall be the Kazak language. 2. In state institutions and local self-administrative bodies, the Russian language shall be officially used on equal grounds along with the Kazak language. 3. The state shall promote conditions for the study and development of the languages of the people of Kazakhstan. Article 8 The Republic of Kazakhstan shall respect principles and norms of international law, pursue the policy of cooperation and goodneighborly relations between states, their equality and noninterference in each other’s domestic affairs, peaceful settlement of international disputes and renounce the first use of the military force. Article 9 The Republic of Kazakhstan shall have its state symbols — the flag, emblem and anthem. Their description and order of official use shall be established by the constitutional law. Section II The Individual and Citizen

Article 10 1. Citizenship of the Republic of Kazakhstan shall be acquired and terminated, as prescribed by the law, shall be indivisible and equal regardless of the grounds of its acquisition. 2. A citizen of the Republic of Kazakhstan under no circumstances 51

may be deprived of citizenship of the right to change his citizenship, and may not be exiled from the territory of Kazakhstan. 3. Foreign citizenship of a citizen of the Republic shall not be recognized. Article 11 1. A citizen of the Republic of Kazakhstan may not be extradited to a foreign state, unless otherwise stipulated by international treaties of the Republic. 2. The Republic shall guarantee its citizens protection and patronage outside its boundaries. Article 12 1. Human rights and freedoms in the Republic of Kazakhstan shall be recognized and guaranteed in accordance with this Constitution. 2. 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. 3. Every citizen of the Republic shall have rights and bear responsibilities owing to his citizenship. 4. Foreigners and stateless people in the Republic shall enjoy rights and freedoms as well as bear responsibilities, established for the citizens unless otherwise stipulated by the Constitution, laws and international treaties. 5. Exercise of a citizen’s human rights and freedoms must not violate rights and freedoms of other people, infringe on the constitutional system and public morals. Article 13 1. Legal personality of everyone shall be recognized and everyone shall have the right to protect his rights and freedoms with all means not contradicting the law, including self-defense. 2. Everyone shall have the right to judicial defense of his rights and freedoms. 3. Everyone shall have the right to take qualified legal assistance. In cases stipulated by law, legal assistance shall be provided free of charge. Article 14 1. Everyone shall be equal before the law and court. 2. No one shall be subject to any discrimination for reasons of origin, social, property status, occupation, sex, race, nationality, 52

language, attitude towards religion, convictions, place of residence or any other circumstances. Article 15 1. Everyone shall have the right to life. 2. No one shall have the right to arbitrarily deprive life of a person. The death penalty shall be established by law, as an exceptional punishment for terroristic crimes, resorting to lethal force, and also for especially grave crimes, committed in wartime, with granting to a sentenced person a right to appeal for pardon. Article 16 1. Everyone shall have the right to personal freedom. 2. Arrest and detention shall be allowed only in cases stipulated by law and with the sanction of a court with right of appeal of an arrested person. Without the sanction of a court, a person maybe detained for a term no more than seventy-two hours. 3. Every person detained, arrested and accused of committing a crime shall have the right to the assistance of a defense lawyer (defender) from the moment of detention, arrest or accusation. Article 17 1. A person’s dignity shall be inviolable. 2. No one must be subject to torture, violence or other treatment and punishment, that is cruel or humiliating to human dignity. Article 18 1. Everyone shall have the right to inviolability of private life, personal or family secrets, protection of honor and dignity. 2. Everyone shall have the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph and other messages. Limitation of this right shall be permitted only in the cases and according to the procedure directly established by law. 3. State bodies, public associations, officials, and the mass media must provide every citizen with the possibility to become familiar with the documents, decisions and other sources of information concerning his rights and interests. Article 19 1. Everyone shall have the right to determine and indicate or not to indicate his national, party and religious affiliation. 2. Everyone shall have the right to use his native language and culture, to freely choose the language of communication, education, instruction and creative activities. 53

Article 20 1. The freedom of speech and creative activities shall be guaranteed. Censorship shall be prohibited. 2. Everyone shall have the right to freely receive and disseminate information by any means not prohibited by law. The list of items constituting state secrets of the Republic of Kazakhstan shall be determined by law. 3. Propaganda or agitation for the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, class and clannish superiority as well as the cult of cruelty and violence, shall not be allowed. Article 21 1. Everyone who has a legal right to stay on the territory of the Republic of Kazakhstan shall have the right to freely move about its territory and freely choose a place of residence, except in cases stipulated by law. 2. Everyone shall have the right to leave the territory of the Republic. Citizens of the Republic shall have the right to freely return to the Republic. Article 22 1. Everyone shall have the right to freedom of conscience. 2. The right to freedom of conscience must not specify or limit universal human and civil rights and responsibilities before the state. Article 23 1. Citizens of the Republic of Kazakhstan shall have the right to freedom of forming associations. The activities of public associations shall be regulated by law. 2. The military, employees of national security, law-enforcement bodies and judges must abstain from membership in political parties, trade unions, and actions in support of any political party. Article 24 1. Everyone shall have the right to freedom of labor, and the free choice of occupation and profession. Involuntary labor shall be permitted only on a sentence of court or in the conditions of a state of emergency or martial law. 2. Everyone shall have the right to safe and hygienic working conditions, to just remuneration for labor without discrimination, as well as to social protection against unemployment. 54

3. The right to individual and collective labor disputes with the use of methods for resolving them, stipulated by law including the right to strike, and shall be recognized. 4. Everyone shall have the right to rest. Working labor agreements stipulating the length of working time, days-off and holidays, and paid annual leave shall be guaranteed by law. Article 25 1. Housing shall be inviolable. Deprivation of housing shall not be permitted unless otherwise stipulated by a court decision. Penetration into housing, its inspection and search shall be permitted only in cases and according to the procedure stipulated by law. 2. Conditions shall be created in the Republic of Kazakhstan to provide citizens with housing. Citizens in need of housing shall be categorized in a manner, to be prescribed by law and provided with housing at an affordable price from the state housing funds in accordance with the norms stipulated by law. Article 26 1. Citizens of the Republic of Kazakhstan may privately own any legally acquired property. 2. Property, including the right of inheritance, shall be guaranteed by law. 3. No one may be deprived of his property, unless otherwise stipulated by a court decision. Forcible alienation of property for the public use in extraordinary cases stipulated by law, may be exercised on condition of its equivalent compensation. 4. Everyone shall have the right to freedom of entrepreneurial activity, and free use of his property for any legal entrepreneurial activity. Monopolistic activity shall be regulated and limited by law. Unfair competition shall be prohibited. Article 27 1. Marriage and family, motherhood, fatherhood and childhood shall be under the protection of the state. 2. Care of children and their upbringing shall be a natural right and responsibility of parents. 3. Able-bodied children of age must take care of their disabled parents. Article 28 1. A citizen of the Republic of Kazakhstan shall be guaranteed a minimum wage and pension, and guaranteed social security in old 55

age, in case of disease, disability or loss of a breadwinner and other legal grounds. 2. Voluntary social insurance, creation of additional forms of social security, and charity shall be encouraged. Article 29 1. Citizens of the Republic of Kazakhstan shall have the right to protection of health. 2. Citizens of the Republic shall be entitled to free, guaranteed, extensive medical assistance established by law. 3. Paid medical treatment shall be provided by state and private medical institutions, as well as by people engaged in private medical practice on the terms and according to the procedures, stipulated by law. Article 30 1. The citizens shall be guaranteed free secondary education in state educational establishments. Secondary education shall be obligatory. 2. A citizen shall have the right to receive on a competitive basis a higher education in a state higher educational establishment. 3. The citizens shall have the right to pay and receive an education in private educational establishments on the basis and terms, established by law. 4. The state shall set uniform compulsory standards in education. The activity of any educational establishment must comply with these standards. Article 31 1. The state shall set an objective to protect the environment, favorable for the life and health of the person. 2. Officials shall be held accountable for the concealment of facts and circumstances endangering the life and health of the people in accordance with law. Article 32 Citizens of the Republic of Kazakhstan shall have the right to peacefully and without arms assemble, hold meetings, rallies and demonstrations, street processions and pickets. The use of this right may be restricted by law in the interests of state security, public order, and protection of health, rights and freedoms of other persons. Article 33 1. Citizens of the Republic of Kazakhstan shall have the right to participate in the government of the state’s affairs directly and through 56

their representatives, to address personally as well as to direct individual and collective appeals to public and local self-administrative bodies. 2. Citizens of the Republic shall have the right to elect and be elected into public and local self-administrations as well as to participate in an all-nation referendum. 3. The right to elect and be elected, to participate in the all-nation referendum shall not extend to the citizens judged incapable by a court as well as those held in places of confinement on a court’s sentence. 4. Citizens of the Republic shall have the equal right to serve in a public office. The requirements for candidates for public offices shall be conditioned only by the character of the office duties and shall be established by law. Article 34 1. Everyone must observe the Constitution, legislation of the Republic of Kazakhstan and respect the rights, freedoms, honor and dignity of other persons. 2. Everyone must respect the state symbols of the Republic. Article 35 Payment of legally established taxes, fees and other obligatory payments shall be a duty and responsibility of everyone. Article 36 1. Defense of the Republic of Kazakhstan shall be a sacred duty and responsibility of its every citizen. 2. Citizens of the Republic shall perform military service according to the procedure and in the forms established by law. Article 37 Citizens of the Republic of Kazakhstan must care for the protection of historical and cultural heritage, and preserve monuments of history and culture. Article 38 Citizens of the Republic of Kazakhstan must preserve nature and protect natural resources. Article 39 1. 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, defense of the public order, human rights and freedoms, health and morality of the population. 2. Any actions capable of upsetting interethnic concord shall be deemed unconstitutional. 57

3. Any form of restrictions to the rights and freedoms of the citizens on political grounds shall not be permitted. Rights and freedoms stipulated by articles 10-11; 13-15 paragraph 1 of article 16; article 17; article 19; article 22; paragraph 2 of article 26 of the Constitution shall not be restricted in any event. Section III The President Article 40 1. The President of the Republic of Kazakhstan shall be the head of the state, its highest official determining the main guidelines of the domestic and foreign policy of the state and representing Kazakhstan within the country and in international relations. 2. The President of the Republic shall be the symbol and guarantor of the unity of the people and the state power, inviolability of the Constitution, rights and freedoms of an individual and citizen. 3. The President of the Republic shall ensure by his arbitration, concerted functioning of all branches of state power and responsibility of the institutions of power before the people. Article 41 1. The President of the Republic shall be elected by universal, equal and direct suffrage under a secret ballot for a five-year term in accordance with the Constitutional Law by the citizens of the Republic, who have come of age. 2. A citizen of the Republic shall be eligible for the office of the President of the Republic of Kazakhstan if he is by birth not younger, than thirty-five and not older, than sixty-five, and has a perfect command of the state language and has lived in Kazakhstan for not less than fifteen years. 3. Regular elections of the President of the Republic shall be held on the first Sunday of December and shall not coincide with the election of a new Parliament of the Republic. 3-1. extraordinary presidential elections shall be assigned by the decision of the President of the Republic and shall be held in the procedure and terms, established by the Constitutional Law. 4. The candidate, who receives more than 50 percent of the votes of the constituents, who have taken part in the election shall be deemed 58

elected. If none of the candidates receives the above number of votes, the second round of elections shall be held between the two candidates, who have obtained the largest number of votes. The candidate who receives the larger number of votes of the constituents, who have taken part in the second round of elections shall be deemed elected. Article 42 1. The President of the Republic of Kazakhstan shall take office from the moment of swearing to the people the following oath: «I solemnly swear that I will faithfully serve the people of Kazakhstan, strictly observe the Constitution and the laws of the Republic of Kazakhstan, guarantee the rights and freedoms of the citizens, honestly perform the high duties of the President of the Republic of Kazakhstan entrusted to me» 2. The oath shall be taken on the second Wednesday of January in a ceremonial atmosphere in the presence of the deputies of Parliament, the members of the Constitutional Council, the judges of the Supreme Court, as well as all former Presidents of the Republic. In the case, stipulated by article 48 of the Constitution, the person who assumes the powers of the President of the Republic of Kazakhstan shall take the oath within one month from the day of assumption of the powers of the President of the Republic. 3. The powers of the President of the Republic shall terminate from the moment, the newly elected President of the Republic takes office as well as in the case of early discharge from office, resignation or death. All former Presidents of the Republic, except those who were discharged from office shall have the title of exPresident of the Republic of Kazakhstan. 4. One and the same person may not be elected to the President of the Republic more than two times in a row. This restriction shall not apply to the First President of the Republic of Kazakhstan. Article 43 The President of the Republic of Kazakhstan shall not have the right to be a deputy of a representative body, occupy other paid positions and engage in entrepreneurial activity. Article 44 1. The President of the Republic of Kazakhstan shall: 1) Annually address the people of Kazakhstan with a message on 59

the state of the country and main guidelines of the domestic and foreign policy of the Republic of Kazakhstan; 2) Appoint regular and extraordinary elections to the Parliament of the Republic and its Chambers; convene the first session of Parliament and accept the oath of its members to the people of Kazakhstan; call extraordinary joint sessions of the Chambers of Parliament; sign laws submitted by the Senate of Parliament within a month, promulgate the law or return the law or its separate articles for a second discussion and vote; 3) after consultations with factions of the political parties, represented in the Mazhilis of the Parliament submit the candidature of Prime Minister of the Republic of Kazakhstan for approval by Mazhilis; appoint a Prime Minister of the Republic with the consent of the Mazhilis of the Parliament; discharge him from office; pursuant to the proposal of the Prime Minister determine the structure of the Government of the Republic, form, abolish and reorganize central executive bodies of the Republic which are not included into the Government, appoint to positions of the members of the Republic’s Government; appoint to the positions of Ministers of Foreign Affairs, Defense, Interior Affairs, Justice; discharge from office members of the Government; accept the oath of the members of the Government; chair the sessions of the Government on especially important issues; charge the Government with bringing a bill into the Mazhilis of Parliament; repeal or suspend completely or partially the effect of the acts of the Government and Prime Minister of the Republic, akims of the regions, cities of the Republic significance and the capital; 4) Appoint to the positions of the Chairperson of the National Bank, Prosecutor General and Chairperson of the Committee of National Security of the Republic with the consent of the Senate of Parliament with the Parliament's consent; discharge them from office; 5) Create, abolish and reorganize national bodies which are directly subordinate and accountable to the President of the Republic, 6) Appoint and recall the heads of diplomatic representative offices of the Republic; 7) Appoint the Chairperson and two members of the Central Election Commission, the Chairperson and two members of the Estimation Committee for Control over Implementation of the Republican Budget for a five year term; 60

8) Approve national programs of the Republic; 9) approve the unified system of financing and labor payment for all bodies financed by the national budget of the Republic pursuant to the proposal of the Prime Minister of the Republic; 10) Adopt a resolution on conduct of the national referendum; 11) Conduct negotiations and sign international treaties of the Republic; sign ratification instruments; letters of credentials and recall from diplomatic and other representatives of foreign states accredited to him; 12) Act as the Commander-in-Chief of the Armed Forces of the Republic, appoint and discharge from office the highest command of the Armed Forces; 13) Award state decorations of the Republic; confer honorary, highest military and other ranks, ranked positions, diplomatic ranks and qualification degrees; 14) Resolve issues of citizenship of the Republic, and granting of political asylum; 15) Exercise pardon of citizens; 16) in the event of a serious and immediate threat to the democratic institutions of the Republic, its independence and territorial integrity, political stability of the Republic, security of its citizens and the disruption of normal functioning of the Constitutional bodies of the state, after official consultations with Prime Minister and Chairpersons of the Parliamentary Chambers of the Republic take measures dictated by the above circumstances includingimposition of a state of emergency on the entire territory and in particular areas of Kazakhstan, and immediately inform the Parliament of the use of the Armed Forces of the Republic; 17) In the case of aggression against the Republic or immediate external threat to its security, the President shall impose martial law on the entire territory of the Republic or in its particular areas, declare a partial or total mobilization and immediately inform the Parliament of the Republic about it; 18) Form the Republican Guard and the Presidential Guard subordinated to the President; 19) Appoint to and discharge from office the State Secretary of the Republic of Kazakhstan, determine his status and powers; form the Administration of the President of the Republic; 61

20) Form the Security Council and other consultative and advisory bodies as well as the Assembly of People of Kazakhstan and the Supreme Judicial Council; 21) Exercise other powers in accordance with the Constitution and the laws of the Republic. Article 45 1. The President of the Republic of Kazakhstan, on the basis of and for the exercise of the Constitution and the laws, shall issue decrees and resolutions which are binding on the entire territory of the Republic. 2. In the case stipulated by subparagraph 4) of the Article 53 of the Constitution the President of the Republic shall issue laws, and in the case stipulated by subparagraph 2) of the Article 61 of the Constitution, the President of the Republic shall issue decrees having the force of laws of the Republic. 3. The acts of Parliament signed by the President of the Republic as well as the acts of the President issued on the initiative of the Government shall be preliminary signed respectively by the Chairperson of each Parliament's Chambers or the Prime Minister who shall be juridical responsible for the legality of these acts. Article 46 1. The President of the Republic of Kazakhstan, his honor and dignity shall be inviolable. 2. Provision, service, and guard of the President of the Republic and his family shall be carried out at the state's expense. 3. The provisions of this article shall apply to ex-Presidents of the Republic. 4. Status and powers of the First President of Kazakhstan shall be determined by the Constitution of the Republic and Constitutional Law. Article 47 1. The President of the Republic of Kazakhstan may be prematurely discharged from office in the case of continued incapacity to carry out his duties due to illness. In this case, the Parliament shall form a commission consisting of equal numbers of deputies from each Chamber and specialists in the corresponding areas of medicine. The decision on early discharge shall be adopted at a joint sitting of the Parliament's Chambers by the majority of no less than three-fourths 62

from the total number of deputies of each Chamber on the grounds of opinion of the commission and the Constitutional Council on compliance with the established constitutional procedures. 2. The President of the Republic shall bear responsibility for the actions performed, while carrying out his duties and only in the case of high treason may be discharged from office by Parliament. The decision to bring an accusation and conduct its investigation may be adopted by the majority of the deputies of the Mazhilis at the initiative of no less, than one-third of the total number of its deputies. Investigation of the accusation shall be organized by the Senate and its results shall be transferred for consideration by the majority of votes of the total number of the deputies of the Senate at a joint session of the Parliament's Chambers. The final decision of this issue shall be adopted at the joint session of the Parliament's Chambers by the majority of no less than three-fourths of the total number of the deputies of each Chamber if there isopinion of the Supreme Court on the validity of the accusation and conclusion of the Constitutional Council on compliance with the established constitutional procedures. The failure to make a final decision within two months from the moment of the accusation shall result in the recognition of rejection of the accusation against the President of the Republic. Rejection of the accusation of the President of the Republic in commission of high treason at any stage shall result in early termination of the powers of the deputies of the Mazhilis, who initiated the consideration of this issue. 3. The issue of discharge of the President of the Republic from office may not be initiated within the period of considering by him the issue on early termination of the powers of the Parliament of the Republic or the Mazhilis of the Parliament. Article 48 1. In case of early discharge or impeachment of the President of the Republic of Kazakhstan from office as well as in case of his death the powers of the President of the Republic shall be transmitted for the remaining period to the Chairperson of the Senate of Parliament; if the Chairperson of the Senate is unable to assume the powers of the President, they shall pass to the Chairperson of the Mazhilis of Parliament; if the Chairperson of the Mazhilis is unable to assume the powers of the President, they shall pass to the Prime 63

Minister of the Republic. The person who assumes the powers of the President of the Republic shall resign his powers respectively of the Chairperson of the Senate, the Chairperson of the Mazhilis, the Prime Minister. In that case substitution of vacant state offices shall be performed in accordance with the procedure stipulated by the Constitution. 2. The person who assumes the powers of the President of the Republic of Kazakhstan, by terms and in accordance with the procedure stipulated by paragraph 1 of this article shall not have the right to initiate amendments and supplements to the Constitution of the Republic of Kazakhstan. Section IV PARLIAMENT Article 49 1. Parliament of the Republic of Kazakhstan is the highest representative body of the Republic performing legislative functions. 2. Parliament's powers shall begin from the opening of its first session and terminate with the first session of the Parliament of a new convocation. 3. The powers of Parliament may be terminated early in cases and procedure stipulated by the Constitution. 4. The organization and activity of Parliament, the legal status of its deputies shall be determined by Constitutional Law. Article 50 1. Parliament shall consist of two Chambers: the Senate and the Mazhilis, which act on the permanent basis. 2. The Senate shall be composed of deputies in the procedure stipulated by Constitutional Law representing by two individuals from each region, city of the Republic, significance and capital of the Republic of Kazakhstan. Fifteen deputies of the Senate shall be assigned by the President of the Republic, accounting the need of provision of the representation of national cultural and other significant interests of the society in the Senate 3. The Mazhilis shall consist of one hundred and seven deputies elected in the procedure established by the Constitutional Law. 4. A deputy of Parliament may not be a member of both Chambers at the same time. 64

5. The term of powers of the Senate’s deputies shall be six years, and the term of the deputies of the Mazhilis shall be five years. Article 51 1. Election of the ninety eight deputies of the Mazhilis shall be carried out on the basis of the universal, equal and direct suffrage by secret ballot. Nine deputies of the Mazhilis shall be elected by the Assembly of the People of Kazakhstan. Regular elections of the deputies of the Mazhilis shall be held no later than two months before the expiry of term of powers of the current Parliament convocation. 2. The election of deputies of the Senate shall be carried out on the basis of indirect suffrage by secret ballot. Half of the elected deputies of the Senate shall be re-elected every three years. In this case, their regular elections shall be held no later than two months before the expiry of their term of office. 3. Extraordinary elections of the deputies of Parliament or the Mazhilis of Parliament shall be held within two months from the day of early termination of the powers of the Parliament or the Mazhilis of the Parliament respectively. 4. A deputy of the Parliament may be a person who is a citizen of the Republic of Kazakhstan and who has been a permanent resident for the last ten years on its territory. A deputy of the Senate may be a person who has reached thirty years of age, has a higher education and length of service of not less than five years, and has been a permanent resident for not less than three years on the territory of the respective region, city of the Republic significance or the capital of the Republic. A deputy of the Mazhilis may be a person who has reached twenty-five years of age. 5. Elections of the deputies of the Parliament of the Republic shall be regulated by the Constitutional Law. 6. A deputy of the Parliament shall take an oath to the people of Kazakhstan. Article 52 1. The deputies of Parliament must take part in its work. Voting in the Parliament shall be carried out by a deputy only in person. Absence of a deputy at sessions of the Chambers and their bodies without good reasons for more than three times as well as transferring the right to vote shall entail application of penalty measures established by law to the deputy. 65

2. A deputy of Parliament shall have no right to be a deputy of another representative body, occupy other paid positions, except teaching, research and creative activities, engage in entrepreneurial activity, be a member of a governing body or a supervisory board of a commercial organization. Violation of this rule shall entail the termination of a deputy's powers. 3. A deputy of Parliament during the term of his office may not be arrested, subject to detention, measures of administrative punishment imposed judicially, charged with criminal liability without the consent of a respective Chamber except for the cases of being detained at the scene of a crime or commission of serious crimes. 4. The powers of a deputy of the Parliament shall be terminated in cases of resignation, his death, being recognized as incapable, dead or untraceable by valid judgment of the court, and in other cases stipulated by the Constitution and the Constitutional Law. A deputy of the Parliament shall be deprived of his mandate in cases of: 1) His departure for permanent residence beyond the Republic of Kazakhstan; 2) The entry into force of the conviction of a court against him; 3) Loss of citizenship of the Republic of Kazakhstan. A deputy of the Mazhilis of Parliament shall be deprived of his mandate in cases of: 1) Withdrawal or expulsion of a deputy from a political party, from which, in accordance with constitutional law, he has been elected; 2) Termination of a political party, from which, in accordance with constitutional law, the deputy elected. The powers of appointed deputies of the Senate of Parliament may be early terminated by the decision of the President of the Republic. The powers of the deputies of the Parliament and the Majilis of Parliament shall be early terminated in cases of dissolution of the Parliament and the Majilis of Parliament respectively. 6. Preparation of issues concerning the application of penalty measuresto the deputies, their compliance with the requirements of item 3 of this article, rules of the deputy ethics, as well as termination of the deputies' powers and deprivation of their powers and deputy 66

inviolability, shall be imposed to the Central Election Commission of the Republic of Kazakhstan. Article 53 Parliament at a joint session of the Chambers shall: 1) Introduce amendments and supplements to the Constitution pursuant to the proposal of the President of the Republic of Kazakhstan; 2) Approve the reports of the Government and the Estimation Committee for Control over Implementation of Republican Budget on the implementation of the national budget. Disapproval by the Parliament of the Government report on the implementation of the national budget meaning the expression of vote of non-confidence to the Government by Parliament; 3) Have the right to delegate him legislative powers for a term not exceeding one year by two-thirds of votes from total number of deputies of each Chamber pursuant to the initiative of the President; 4) Decide issues of war and peace; 5) Make decision to use the Armed Forces of the Republic pursuant to the proposal of the President of the Republic to fulfill international obligations for the maintenance of peace and security; 6) Hear annual messages of the Constitutional Council on the state of the constitutional legality in the Republic; 7) Form joint commissions of the Chambers, elect and discharge from office their chairmen, hear reports on the activity of the commissions; 8) Exercise other powers assigned to the Parliament by the Constitution. Article 54 1. The Parliament at a separate session of the Chambers through consecutive consideration of issues first in the Mazhilis and then in the Senate shall adopt constitutional laws and laws as well as: 1) Approve the national budget; introduce it with amendments and supplements; 2) Establish and annul state taxes and dues; 3) Establish the procedure of resolving the issues of the administrative-territorial division of the Republic of Kazakhstan; 4) Institute state awards, honorary, military and other titles, ranked positions, diplomatic ranks of the Republic of Kazakhstan, and determine state symbols of the Republic; 67

5) Decide issues of state loans and rendering of economic and other assistance by the Republic; 6) Resolve issues of amnesty; 7) Ratify and denounce international treaties of the Republic. 2. The Parliament at a separate session of the Chambers through consecutive consideration of issues first in the Mazhilis and then in the Senate shall: 1) Discuss reports on implementation of the national budget; 2) Conduct a repeated discussion and voting on the laws or articles of a law caused objections of the President of the Republic within a month term from the day of submission of the objections. Failure to comply with this term shall mean acceptance of the President’s objections. If the Mazhilis or the Senate by two-thirds of the majority vote from total number of the deputies of each Chamber approve the previous decision the President within a month shall sign the law. If the President's objections are not overcome at least by one of the Chambers, the law shall be considered as not adopted or adopted in the wording proposed by the President. Objections of the Head of State to constitutional laws adopted by the Parliament shall be considered in the procedure stipulated by this sub-item. In this case the President's objections to the constitutional laws shall be overcome by the Parliament at least by three-fourths of votes from total number of the deputies of each Chamber. 3) Initiate assignment of the national referendum. Article 55 The following shall belong to exclusive jurisdiction of the Senate: 1) Election and discharge from office the Chairperson of the Supreme Court and judges of the Supreme Court of the Republic pursuant to the proposal of the President of the Republic of Kazakhstan, and acceptance of their oath; 2) Approval of the appointment of the Chairperson of the National Bank, Procurator General and the Chairperson of the Committee of National Security by the President of the Republic of Kazakhstan; 3) Deprivation of inviolability of the Procurator General, the Chairperson and judges of the Supreme Court of the Republic; 4) Execution of the functions of Parliament of the Republic on adoption of the constitutional laws and laws within the period of absence of the Mazhilis caused by the early termination of its powers; 68

5) carrying out of other powers vested to the Senate of the Parliament by the Constitution. Article 56 1. The following belongs to exclusive jurisdiction of the Mazhilis: 1) Accepting of drafts of the constitutional laws and laws submitted by the Parliament for consideration and consideration of these drafts; 2) Giving consent to the President on the appointment of the Prime-Minister of the Republic by majority vote from the total number of deputies; 3) Announcing of the regular elections of the president of the Republic; 4) Carrying out of other powers vested to the Mazhilis of the Parliament by the Constitution. 2. The Mazhilis shall have the right to pass a vote of noconfidence to the Government by majority vote from total number of deputies of the Mazhilis pursuant to the initiative of no less than onefifths from total number of deputies of the Mazhilis. Article 57 Each Chamber of the Parliament independently, without participation of the other Chamber shall: 1) Appoint to office two members of the Constitutional Council; appoint to the positions of two members of the Central Election Commission for a five-year term, three members of the Estimation Committee for control over implementation of the national budget; 2) Delegate half of the members of the commission formed by Parliament; 3) Elect half of the members of joint commissions of the Chambers; 4) Terminate powers of the deputies of the Chambers, as well as resolve the issues of depriving deputies of their deputy inviolability pursuant to the proposal of the Procurator General of the Republic of Kazakhstan; 5) Conduct Parliamentary hearings on the issues of its jurisdiction; 6) Have the right to hear reports of the members of the Government of the Republic on the issues of their activity, pursuant to the initiative of no less than one-third from the total number of the deputies of the 69

Chamber; to adopt an appeal to the President of the Republic of Kazakhstan to discharge a member of the Government from office by majority vote from the total number of the deputies of the Chamber in the case of non-compliance with the laws of the Republic. If the President of the Republic rejects such an appeal, the deputies by the majority vote from the total number of deputies of the Chamber shall have the right repeatedly raise the issue on discharge of a member of the Government from office on the expiry of six months from the day of the first appeal. In this case the President of the Republic shall discharge the member of the Government from office; 7) Form coordinating and working bodies of the Chambers; 8) Adopt regulation of their activities and other decisions on the issues connected with organization and the internal routine of the Chambers. Article 58 1. The Chambers shall be headed by their chairpersons who are elected by the Senate and the Mazhilis from total number of the deputies who have a perfect command of the state language, by secret ballot of majority vote from the total number of the deputies of the Chambers. The candidacy for the position of the Chairperson of the Senate shall be nominated by the President of the Republic of Kazakhstan. The candidacies for the Chairperson of the Mazhilis shall be nominated by the deputies of the Chamber. 2. The Chairpersons of the Chambers may be recalled from office as well as have the right to submit their resignation if the majority from the total number of the deputies of the Chambers have voted for it. 3. The Chairpersons of Parliament's Chambers shall: 1) Convene sessions of the Chambers and chair them; 2) Exercise general supervision of the preparation of the issues submitted for Chamber’s’ consideration; 3) Nominate to the Chambers the candidacies for election to the positions of Deputies of the Chambers’ Chairpersons; 4) Ensure the compliance with the regulation in the activity of the Chambers; 5) Supervise the activity of the coordinating bodies of the Chambers; 6) Sign acts issued by the Chambers; 7) Nominate to the Chambers the candidacies for appointment to the positions of members of the Constitutional Council, the Central 70

Election Commission, and the Estimation Committee for Control over implementation of the national budget; 8) Carry out other duties assigned to them by the Regulation of Parliament. 4. The Chairperson of the Mazhilis shall: 1) Open sessions of Parliament; 2) Convene regular joint sessions of the Chambers, chair regular and extraordinary joint sessions of the Chambers. 5. The chairpersons of the Chambers shall issue instructions on the issues of their jurisdiction. Article 59 1. Parliament’s sessions shall proceed in the form of joint and separate sessions of its (chambers). 2. The first session of Parliament shall be convened by the President of the Republic of Kazakhstan no later than thirty days from the day of publishing of the election results. 3. Regular sessions of the Parliament shall be held once a year from the first working day of September to the last working day of June. 4. Session of Parliament, as a rule, shall be opened by the President of the Republic and closed at joint sessions of the Senate and Mazhilis. In the period between Parliament’s sessions, the President of the Republic of Kazakhstan may call an extraordinary session of the Parliament on his own initiative, at the suggestion of the Chair ‒ person’s of the Chambers or no less than one-thirds from the total number of the deputies of the Parliament. Only the issues that were the reason for convocation shall be reviewed at this session. 5. Joint and separate sessions of the Chambers shall be held on condition that no less than two-thirds from the total number of the deputies of each Chamber are present. 6. Joint and separate sessions of the Chambers shall be open. In cases stipulated by the procedural orders, sessions may be closed. The President of the Republic, the Prime Minister and members of the Government, the Chairperson of National Bank, the Prosecutor General, and the Chair-person of the Committee of National Security shall have the right to be present at any session and be heard. Article 60 1. The Chambers shall form standing committees, the number of which shall not exceed seven in each Chamber. 71

2. The Senate and Mazhilis shall have the right to form joint commissions on a parity basis for solution of issues dealing with the joint activity of the Chambers. 3. The committees and commissions shall issue resolutions on items of their jurisdictions. 4. The procedure of formation, the powers and organization of the activities of the committees and commissions shall be determined by law. Article 61 1. The right of a legislative initiative shall belong to the President of the Republic, the Deputies of the Parliament, to the Government and shall be realized exclusively in the Mazhilis. 2. The President of the Republic of Kazakhstan shall have the right to determine priority consideration of draft of laws as well as to declare consideration of a draft of law urgent signifying that Parliament must consider this draft within a month from the day of its submission. If the Parliament does not meet this requirement, the President of the Republic shall have the right to issue a decree having the force of law which shall be. in effect until Parliament adopts a new law as established by the Constitution. 3. Parliament shall have the right to issue laws that regulate the most important public relations, establish fundamental principles and standards dealing with: 1) legal capacity of individuals and legal entities, civil freedoms and rights, obligations and responsibility of individuals and legal entities; 2) conditions of ownership and other rights of property; 3) foundations of organization and activity of state bodies and bodies of local self-administration, state and military service; 4) taxation, establishment and levying of duties and other obligatory payments; 5) the republican budget; 6) issues of the judicial system and legal proceedings; 7) education, health care and social provision; 8) privatization of enterprises and their property; 9) environmental protection; 10) administrative-territorial structure of the Republic; 11) ensuring defense and security of the state. All other relations shall be regulated by legislative acts. 72

4. A draft of law considered and approved by the majority of votes from the total number of the deputies of the Mazhilis shall be transmitted to the Senate where it shall be considered for no more than sixty days. A draft of law approved by the majority of votes of the total number of deputies of the Senate shall become the law and shall be submitted to the President to be signed within ten days. A draft of law rejected as a whole by the majority of votes from the total number of the Senate’s deputies shall be returned to the Mazhilis. If the Mazhilis approves the draft of law again by the majority of two-thirds of votes from the total number of its deputies, it shall be transferred to the Senate for a second discussion and voting. A twice -rejected draft may not be submitted again during the same session. 5. Amendments and supplements to a draft of law proposed by the majority of votes from the total number of the Senate’s deputies shall be sent to the Mazhilis. If the Mazhilis by the majority of votes from the total number of its deputies agrees with the proposed amendments and supplements, the law shall be deemed to be adopted. If the Mazhilis by the same majority of votes objects to the amendments and supplements proposed by the Senate, the disagreement between the Chambers shall be resolved through conciliatory procedures. 5-1. the draft of the constitutional law considered and approved not less than two-thirds of votes from the total number of the deputies of the Mazhilis shall be transmitted to the Senate where it shall be considered for no more than sixty days. Adopted not less than two-thirds of votes of total number of deputies of the Senate the draft shall become the constitutional law and within ten days shall be submitted to the President of the Republic for the signature. The rejecting the whole draft of the constitutional law shall be carried out by Mazhilis or the Senate by the majority of votes from total number of the deputies of the Chamber. Brought by the Senate not less than two thirds of votes of its deputies, changes and supplements in the draft of the constitutional law shall direct to Mazhilis. If the Mazhilis not less than two-thirds of votes of its deputies shall agree with the changes brought by the Senate and supplements, the constitutional law shall be considered accepted. If the Mazhilis, at voting by the changes brought by the Senate and supplements shall be disagreed with them, not less than two-thirds of votes of deputies’ disagreements between Chambers, shall be resolved by conciliation procedures. 73

6. Drafts of law envisioning reduction of state revenues or increase in state expenditures may be submitted only when supplied with the positive resolution of the Government of the Republic. For drafts of the acts brought in Mazhilis of the Parliament as the legislative initiative of the President of the Republic, presence of such conclusion shall not required. 7. In the case when of a draft of law submitted by the Government is not adopted, the Prime-Minister shall have the right to raise an issue of confidence in the Government at a joint session of the Chambers. Voting on this issue shall be held not earlier than within forty-eight hours from the moment of calling for a vote of confidence. If the call for a vote of no confidence does not receive the majority of votes from total number of deputies of each of Chambers, a draft of law shall be deemed adopted without voting. However, the Government may not use this right more than twice a year. Article 62 1. The Parliament shall adopt legislative acts in the form of laws of the Republic of Kazakhstan, resolutions of the Parliament, resolutions of the Senate and the Mazhilis having obligatory force over the whole territory of the Republic. 2. Laws of the Republic shall come into effect after they are signed by the President of the Republic. 3. Amendments and supplements to the Constitution shall be introduced by the majority of no less than three-fourths of votes from the total number of the deputies of each chamber. 4. Constitutional laws shall be adopted on the issues stipulated by the Constitution by the majority of no less than two-thirds of votes from the total number of the deputies of each Chamber. 5. Legislative acts of the Parliament and its Chambers shall be adopted by the majority of votes from the total number of the deputies of the Chambers unless otherwise stipulated by the Constitution. 6. No less than two readings introducing amendments and supplements to the Constitution of the Republic of Kazakhstan shall be obligatory. 7. Laws of the Republic, resolutions of the Parliament and its Chambers must not contradict the Constitution. Resolutions of the Parliament and its Chambers must not contradict laws. 74

8. The procedure for development, submission, discussion, bringing into effect and promulgation of legislative and other regulatory legal acts of the Republic shall be regulated by a special law and the procedural orders of Parliament and its Chambers. Article 63 1. The President of the Republic of Kazakhstan after consultations of the Chairpersons of the Chambers of the Parliament and the Prime Minister may dissolve the Parliament or the Mazhilis of the Parliament. 2. The Parliament and the Mazhilis of the Parliament may not be dissolved in the period of a state of emergency or martial law, during the last six months of the President’s term, as well as within a year after a previous dissolution26  The Government Article 64 1. The Government shall implement the executive power of the Republic of Kazakhstan, head the system of executive bodies and exercise supervision of their activity. 2. The Government shall be a collegial body and in its entire activity responsible before the President of the Republic, and in the cases provided by the Constitution, before the Mazhilis of the Parliament and the Parliament. 3. Members of the Government shall be accountable to the Chambers of Parliament. 4. The jurisdiction, the procedure of organization and activity of the Government shall be determined by constitutional law. Article 65 1. The Government shall be formed by the President of the Republic of Kazakhstan according to the procedure stipulated by this Constitution. 2. Suggestions about the structure and composition of the Government shall be submitted to the President of the Republic of Kazakhstan by the Prime Minister of the Republic within ten days after his appointment. 3. The members of the Government shall take an oath to the people and President of Kazakhstan. 75

Article 66 The Government shall: 1) develop the main directions of the socio-economic policy of the state, its defense capability, security, guarantee of public order and organize their realization; 2) present to the Parliament the republican budget and a report about its performance, ensure implementation of the budget; 3) introduce draft of laws into the Mazhilis and ensure enforcement of laws; 4) organize management of state property; 5) develop measures for the conduct of the foreign policy of the Republic of Kazakhstan; 6) manage the activity of ministries, state committees, other central and local executive bodies; 7) annul or suspend completely or partially, the effect of acts of ministries, state committees, other central and local executive bodies of the Republic; 8) appoint to and release from office heads of central executive bodies not encompassed by the Government; 9) perform other functions assigned to it by this Constitution, laws and acts of the President. Article 67 The Prime Minister of the Republic of Kazakhstan shall: 1) organize and supervise the work of the Government, personally answer for its work; 2) sign resolutions of the Government; 3) report the main directions of the Government’s activity and all of its important decisions to the President; 4) perform other functions connected with organization and supervision of the Government’s activity Article 68 1. Members of the Government shall be independent in making decisions within their competence and bear personal responsibility before the Prime Minister for the activity of bodies subordinated to them. A member of the Government who does not agree with the policy, pursued by the Government, or who does not pursue it shall resign or subjected to release from his office. 2. Members of the Government shall not have right to be deputies of a representative body, hold other paid offices except teaching, scientific and 76

other creative activities, engage in entrepreneurial activity, enter governing body or a supervisory board of a commercial organization, except for cases when it is their job responsibilities according to the legislation. Article 69 1. The Government of the Republic of Kazakhstan shall issue resolutions on the items of its jurisdiction having obligatory force on the entire territory of the Republic. 2. The Prime Minister of the Republic shall issue directions having mandatory force on the entire territory of the Republic. 3. Resolutions of the Government and directions of the Prime Minister must not contradict the Constitution, legislative acts, decrees and resolutions of the President of the Republic. Article 70 1. The Government shall resign its powers to the newly elected President of the Republic of Kazakhstan. Before again selected Mazhilis of the Parliament the Prime Minister of the Republic have the right to raise an issue of confidence in the Government. In case of expression by Mazhilis of confidence, the Government shall continue to fulfill the responsibilities, if other is not solved by the President of the Republic. 2. The Government and any of its members shall have the right to submit a resignation to the President of the Republic of Kazakhstan if they consider further performance of the functions assigned to them to be impossible. 3. The Government shall submit its resignation to the President of the Republic of Kazakhstan in the event that Mazhilis of the Parliament or the Parliament pass a vote of no confidence in the Government. 4. The President of the Republic within a period of ten days shall consider the issue of accepting or declining the resignation. 5. Acceptance of the resignation shall denote the termination of the powers of the Government or a respective member. Acceptance of the resignation of the Prime Minister shall denote the termination of the powers of the entire Government. 6. In the event that the resignation of the Government or its member is declined, the President shall charge the Government or its member with continued performance of their responsibilities. 7. The President of the Republic shall have the right on his own initiative to adopt a decision to terminate the powers of the 77

Government and to release any of its members from their offices. The release of the Prime Minister from office shall denote the termination of the powers of the entire Government. Section VI The Constitutional Council Article 71 1. The Constitutional Council of the Republic of Kazakhstan shall consist of seven members whose powers shall last for six years. The ex-Presidents of the Republic shall have the right to be life-long members of the Constitutional Council 2. The Chairperson of the Constitutional Council shall be appointed by the President of the Republic, and in case the votes are equally divided, his vote shall be decisive. 3. Two members of the Constitutional Council shall be appointed by the President of the Republic, on two members shall be appointed accordingly by the Senate and the Mazhilis. Half of the members of the Constitutional Council shall be renewed every three years. 4. The Chairperson and members of the Constitutional Council shall not be deputies, hold paid offices except teaching, scientific or other creative activities, engage in entrepreneurial activity, enter a governing body or a supervisory board of a commercial organization. 5. The Chairperson and members of the Constitutional Council during their term in office may not be arrested, subject to detention, measures of administrative punishment imposed by a court of law, arraigned on a criminal charge without the consent of Parliament, except in cases of being apprehended on the scene of a crime or committing grave crimes. 6. Organization and activity of the Constitutional Council shall be regulated by Constitutional Law. Article 72 1. The Constitutional Council by appeal of the President of the Republic of Kazakhstan, the chairperson of the Senate, the Chairperson of Mazhilis, not less than one-fifth of the total number of deputies of Parliament, the Prime Minister shall: 1) 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; 78

2) consider the laws adopted by Parliament with respect to their compliance with the Constitution of the Republic before they are signed by the President; 2-1) consider the decisions adopted by the Parliament and its Chambers to their compliance with the Constitution of the Republic; 3) consider the international treaties of the Republic with respect to their compliance with the constitution, before they are ratified; 4) officially interpret the standards of the Constitution; 2. The Constitutional Council shall consider the appeals of courts of law. Article 73 1. The inauguration of the President, registration of the elected deputies of Parliament or results of all-nation referendum snail is suspended 2. The term of signing or ratifying of the corresponding acts shall be suspended 3. The Constitutional Council shall pass a resolution within one month from the day of appeal. This period of time, at the demand of the President or the Republic, may be shortened by 10 days if the issue is urgent. 4. The President of the Republic may object, in whole or in part to the resolutions of the Constitutional Council. These objections shall be overruled by two-thirds of the votes of the total number of the members of the Constitutional Council. If the objections of the President are not overruled, the resolution of the Constitutional Council shall be considered not adopted. Article 74 1. Laws and international treaties recognized not to be in compliance with the Constitution of the Republic of Kazakhstan, may not be signed or, accordingly, ratified and brought into effect. 2. Laws and other normative legal acts, recognized unconstitutional, as infringing on the rights and freedoms of an individual and citizen secured by the Constitution, shall be canceled and shall not be in effect. 3. Constitutional Council shall come into effect from the day they are adopted, shall be binding on the entire territory of the Republic, final and not subject to appeal. 79

Section VII Court and justice

Article 75 1. Justice in the Republic of Kazakhstan shall be exercised only by the court. 2. Judicial power shall be exercised through the constitutional, civil, administrative, criminal and other forms of judicial procedure as established by law. In cases, stipulated by law, criminal procedure shall be carried out with participation of jurymen. 3. The courts of the Republic shall be the Supreme Court of the Republic, local and other courts of the Republic established by law. 4. The judicial system of the Republic shall be established by the Constitution of the Republic and the constitutional law. The establishment of special and extraordinary courts under any name shall not be allowed. Article 76 1. Judicial power shall be exercised on behalf of the Republic of Kazakhstan and shall be intended to protect the rights, freedoms, and legal interests of the citizens and organizations for ensuring the observance of the Constitution, laws, other regulatory legal acts, and shall ensure international treaties of the Republic. 2. Judicial power shall be extended to all cases and disputes arising on the basis of this Constitution, laws, other regulatory legal acts, international treaties of the Republic. 3. Decisions, sentences and other judgments of courts shall have an obligatory force on the entire territory of the Republic. Article 77 1. A judge when executing justice shall be independent and subordinate only to the Constitution and the law. 2. Any interference in the activity of the court in the exercise of justice shall be inadmissible and accountable by the law. Judges shall not be held accountable with regard to specific cases. 3. In application of law a judge must be guided by the following principles: 1) a person shall be considered to be innocent of committing a crime until his guilt is established by a court’s sentence that has come into force; 2) no one may be subject twice to criminal or administrative prosecution for one and the same offense; 80

3) no one may have his jurisdiction, as stipulated by law changed without his consent; 4) everyone shall have the right to be heard in court; 5) the laws establishing or intensifying liability, imposing new responsibilities on the citizens or deteriorating their conditions shall have no retroactive force. If after the commitment of an offense accountability for it is canceled by law or reduced, the new law shall be applied; 6) the accused shall not be obligated to prove his innocence; 7) no person shall be compelled to give testimony against oneself, one’s spouse and close relatives whose circle is determined by law. The clergy shall not be obligated to testify against those who confided in them with some information at a confession; 8) any doubts of a person’s guilt shall be interpreted in the favor of the accused; 9) evidence obtained by illegal means shall have no juridical force. No person may be sentenced on the basis of his own admission of guilt; 10) application of the criminal law by analogy shall not be allowed. 4. The principles of justice established by the Constitution shall be common and uniform for all courts and judges in the Republic. Article 78 1. The courts shall have no right to apply laws and other regulatory legal acts infringing on the rights and liberties 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 liberties of an individual and a citizen it shall suspend legal proceedings and address the Constitutional Council with a proposal to declare that law unconstitutional. Article 79 1. Courts shall consist of permanent judges whose independence shall be protected by the Constitution and law. A judge’s powers may be terminated or suspended exclusively on the grounds established by law. 2. A judge may not be arrested, subject to detention, measures of administrative punishment, imposed by a court of law, arraigned on a criminal charge without the consent of the President of the Republic 81

of Kazakhstan based on a conclusion of the Highest Judicial Council of the Republic; without the consent of Senate except for the cases of being apprehended on the scene of a crime or committing grave crimes. 3. Judges may be citizens of the Republic, who have reached twenty-five years of age, have a higher juridical education, length of service of not less than two years in the legal profession and who have passed a qualification examination. Additional requirements to the judges of the courts of the Republic may be established by law. 4. The office of a judge shall be incompatible with a deputy’s mandate, holding other paid offices except teaching, research or other creative activity engaging in other entrepreneurial activity, or being a member of a managing body or supervisory board of a commercial enterprise. Article 81 The Supreme Court of the Republic of Kazakhstan shall be the highest judicial body for civil, criminal and other cases which are under local and other courts, exercises the supervision over their activities in the forms of juridical procedure stipulated by law, and provide interpretation on the issues of judicial practice. Article 82 1. The Chairperson and judges of the Supreme Court of the Republic of Kazakhstan shall be elected by the Senate at the proposal of the President of the Republic, based on a recommendation of the Highest Judicial Council. 2. The Chairpersons and judges of local and other courts shall be appointed by the President of the Republic at the recommendation of the Highest Judicial Court. 3. In courts according to the constitutional law judicial boards can be created. The order of investment with powers of chairperson of judicial boards shall be defined by the constitutional law. 4. The Highest Judicial Council shall consist of the Chairperson and two other persons, who are appointed by the President of the Republic. 5. The status the organization of work of the Highest Judicial Council shall be determined by law. Article 82 1. The Chairperson and judges of the Supreme Court of the Republic of Kazakhstan shall be elected by the Senate at the proposal 82

of the President of the Republic based on a recommendation of the Highest Judicial Council. 2. The Chairpersons and judges of local and other courts shall be appointed by the President of the Republic at the recommendation of the Highest Judicial Court. 3. In courts according to the constitutional law judicial boards can be created. The order of investment with powers of chairperson of judicial boards shall be defined by the constitutional law. 4. The Highest Judicial Council shall consist of the Chairperson and two other persons, who are appointed by the President of the Republic. 5. The status the organization of work of the Highest Judicial Council shall be determined by law. Article 83 1. The prosecutor’s office on behalf of the state shall exercise the highest supervision over exact and uniform application of law, the decrees of the President of the Republic of Kazakhstan and other regulatory legal acts on the territory of the Republic, legality of preliminary investigation, inquest and inspection, administrative and executive legal procedure; and take measures for exposure and elimination of any violations of the law, the independence of courts as well as the appeal of laws and other regulatory legal acts contradicting the Constitution and laws of the Republic. The Prosecutor’s office of the Republic shall represent interest of the state in court as well as conduct criminal prosecution in cases using procedures and within the limits, stipulated by law. 2. The procurator’s office of the Republic shall be a unified centralized system with subordination of junior procurators to their seniors and the Prosecutor General of the Republic. It shall exercise its authorities independently of other state bodies and officials and be accountable only to the President of the Republic. 3. The Prosecutor General of the Republic during the term of his office may not be arrested, subject to detention, measures of administrative punishment imposed by a court of law, arraigned on a criminal charge without the consent of the Senate except for the cases of being apprehended on the scene of a crime or committing grave crimes. The term of the Prosecutor General shall be five years. 4. The jurisdiction, organization and procedure of the activity of the procurator’s office of the Republic shall be determined by law. 83

Section VIII Local public administration and self-administration Article 85 Local public administration shall be exercised by local representative and executive bodies which are responsible for the state of affairs of the respective territory. Article 86 1. Local representative bodies — Maslikhats — shall express the will of the population of respective administrative-territorial units and with regard to the common public interests shall determine the measures needed for its realization, and control their implementation. 2. Maslikhats shall be elected by the population on the basis of universal, equal suffrage under secret ballot for a five-year term. 3. A deputy of Maslikhat may be a citizen of the Republic of Kazakhstan who has reached twenty years of age. A citizen of the Republic may be a deputy of only one maslikhat. 4. The jurisdiction of Maslikhats shall include: 1) approval of plans, economic and social programs for development of the territory, local budget and reports of their performance; 2) decision of issues of local administrative-territorial organization in their jurisdiction; 3) consideration of reports by heads of local executive bodies on the issues delegated by law to the jurisdiction of Maslikhat; 4) formation of standing commissions and other working bodies of Maslikhat, nearing reports about their activity, decision of other issues connected with organization of the work of Maslikhat; 5) exercise other authorities for insuring of the rights and legitimate interests of citizens in accordance with the legislation of the Republic. 5. The powers of Maslikhat shall be prematurely terminated by the President of the Republic, and also in the case of adoption of a decision about self-dissolution. 6. The jurisdiction ofMaslikhats, procedure of their organization and activity, and legal status of their deputies shall be established by law. Article 87 1. Local executive bodies shall be a part of a unified system of the executive bodies of the Republic of Kazakhstan, and ensure 84

conduct of the general state policy of the executive power in conjunction with the interests and development needs of the respective territory. 2. The jurisdiction of local executive bodies shall include: 1) development of drafts of plans, economic and social programs for development of the territory, local budget and provision of their realization; 2) management of public property; 3) appointment to and release from office the heads of local executive bodies, resolution of other issues connected with organization of the work of local executive bodies; 4) exercise other powers delegated to local executive bodies by the legislation of the Republic in the interests of local public administration. 3. A local executive body shall be headed by an akim of the respective administrative-territorial unit who is a representative of the President and the Government of the Republic. 4. Akims of the regions, major cities and the capital shall be appointed to office by the President of the Republic from the consent Maslikhats accordingly regions, major cities and the capital. Akims of other administrative-territorial units shall be appointed or elected to office in the order, determined by the President of the Republic of Kazakhstan. The President of the Republic shall have the right to release Akims from office at his own discretion. 5. At the initiative of not less than one-fifth from total number of deputies of Maslikhat can be brought to the question on expression of a vote of no confidence in the Akim. In this case maslikhat by a majority of votes from total number of its deputies have the right to express non-confidence in the akim and raise the issue of his release from office respectively before the President of the Republic or a senior Akim. The powers of Akims of the oblasts, the major cities and the capital shall terminate when a newly elected President assumes office. 6. The jurisdiction of local executive bodies, organization and procedure of their activity shall be established by law. Article 88 1. Maslikhats shall adopt decisions on the issues of their jurisdiction,akims shall adopt decisions and resolutions which are 85

binding on the territory of the respective administrative-territorial unit. 2. Drafts of decisions of Maslikhats envisioning a reduction of local budgetary revenues or an increase of local budgetary expenditures may be submitted for consideration only with a positive resolution of the akim. 3. Decisions of Maslikhats not corresponding to the Constitution and the laws of the Republic of Kazakhstan may be annulled by a legal process. 4. Decisions and resolutions of Akims may be respectively annulled by the President, the Government of the Republic of Kazakhstan or a senior Akim, as well as by a legal process. Article 89 1. In the Republic of Kazakhstan, local self-administration which ensures that the issues of local significance shall be resolved independently by the population shall be recognized. 2. Local self-administration shall be exercised by the population directly as well as through Maslikhats and other bodies of local selfadministration in local communities, covering the territories, on which groups of the population live compactly. The realization of state functions shall be delegated to local self-administration according to the law. 3. The organization and the activity of local self-administration shall be regulated by the law. 4. The independence of the bodies of local self-administration shall be guaranteed within the limits of their powers established by law. Section IX Concluding and transitional provisions Article 90 1. The Constitution of the Republic of Kazakhstan adopted at an all-nation referendum shall come into effect from the day of official publication of the results of the referendum with the simultaneous termination of the functioning of the previously adopted Constitution of the Republic of Kazakhstan. 2. The day of adoption of the Constitution at the all-nation referendum shall be proclaimed a national holiday -the Constitution Day of the Republic of Kazakhstan. 86

Article 91 1. Amendments and supplements to the Constitution of the Republic of Kazakhstan may be introduced only by an all-nation referendum held by the decision of the President of the Republic made on his own initiative, at the recommendation of Parliament or the Government. The draft of amendments and supplements to the Constitution shall not be submitted to an all-nation referendum if the President decides to pass it to the consideration of Parliament. In this case, Parliament’s decision shall be adopted according to the procedure established by this Constitution. In case the President of the Republic refuses the proposal of the Parliament on submission of amendments and supplements to the Constitution for the consideration of the Republican referendum, the Parliament has the right by majority of not less than four-fifths of votes of the total number of deputies of each Chamber of the Parliament to adopt the law on making of these amendments and supplements to the Constitution. In such case the President of the Republic shall sign this law or submit it for the consideration of the Republican referendum which shall be deemed valid if more than half of the Republican citizens, possessing the right to participate in the Republican referendum, take part in it. Amendments and supplements to the Constitution, which are submitted for the consideration of the Republican referendum, shall be deemed adopted, if more than half of citizens, taking part in it, vote for it, not less than in two-thirds of the oblasts, major cities and the capital. 2. The unitary status and territorial integrity of the Republic, the forms of government may not be changed. Article 92 1. The constitutional laws must be adopted within a year from the day of enactment of the Constitution. If the laws called constitutional in the Constitution or the acts having the force thereof have been adopted by the moment of enactment of the Constitution, they are brought into accordance with the Constitution and deemed to be the constitutional laws of the Republic of Kazakhstan. 2. Other laws named in the Constitution must be adopted according to the procedure and within the terms determined by the Parliament but no later than two years after the enactment of the Constitution. 87

3. The decrees of the President of the Republic published within the term of his exercise of additional powers in accordance with the law of the Republic of Kazakhstan from December 10, 1993 «On Temporary Delegation of Additional Powers to the President of the Republic of Kazakhstan and Heads of Local Administration» and having the force of law shall attain the force of law and may be altered, amended or annulled. 4. The legislation of the Republic of Kazakhstan functioning at the moment of enactment of this Constitution shall be applied in the part that does not contradict it and within two years from the day of the adoption of the Constitution must be brought into accordance with it. Article 93 The government, local representative and executive bodies must create all necessary organizational, material and technical conditions for fluent and free-of-charge mastery of the state language by all citizens of the Republic of Kazakhstan in accordance with a special law. Article 94 The President of the Republic of Kazakhstan elected in accordance with the legislation of the Republic of Kazakhstan functioning at the moment of enactment of this Constitution shall acquire the powers of the President of the Republic of Kazakhstan stipulated by it and exercise them during the term established by the decision adopted at the allnation referendum of April 29, 1995. By consent of the President of the Republic of Kazakhstan the present term of the powers of the President of the Republic may be reduced by resolution of the Parliament of the Republic, adopted at the joint session of its Chambers by the majority of votes of the total number of deputies of each Chamber. In such case the Mazhilis of the Parliament within one month shall order elections of the President of the Republic of Kazakhstan. The President of the Republic, elected according to the results of these elections, shall take the oath within one month since the day of publication of the results of elections and exercise his duties before taking office of the President of the Republic, elected in regular Presidential elections, which shall be held after the expiration of a seven-year term on the first Sunday of December. 2. The Vice-President of the Republic of Kazakhstan elected in accordance with the legislation of the Republic of Kazakhstan 88

functioning at the moment of enactment of this Constitution shall preserve his powers until the expiration of the term for which he was elected. Article 94-1 Defining a term of powers of the President of the Republic, shall be applied to the person who will be elected by the President of the Republic following the results of presidential election spent in connection with the expiration of a seven-year term of powers of the President of the Republic, elected in the elections on December 4th 2005. Article 95 1. One half of the deputies of the Senate of the first convocation shall be elected for a four-year term, the other half of the deputies shall be elected for a two-year term in the procedure, established by Constitutional Law. 2. Provisions of the Constitution of the Republic of Kazakhstan on elections of deputies of the Mazhilis of the Parliament on the basis of Party Lists shall be applied from the beginning of elections of deputies of the Mazhilis of the Parliament of the second convocation. Article 96 The Cabinet of Ministers of the Republic of Kazakhstan from the day of enactment of this Constitution shall acquire the rights, obligations and responsibility of the Government of the Republic of Kazakhstan. Article 97 The first composition of the Constitutional Council of the Republic of Kazakhstan shall be formed in the following manner: the President of the Republic, the Chairperson of the Senate of Parliament, the Chairperson of the Mazhilis of Parliament shall each appoint one member to the Constitutional Council for a three-year term and shall each appoint one member to the Constitutional Council for a six-year term. The Chairperson of the Constitutional Council shall be appointed by the President of the Republic for a six-year term. Article 98 1. The justice and investigation bodies stipulated by this Constitution shall be formed according to the procedure and within the terms stipulated by the respective laws. The functioning juridical 89

and inquiry bodies shall retain their powers until new bodies are formed. 2. Judges of the Supreme Court and the Highest Arbitration Court and local courts of the Republic of Kazakhstan shall retain their powers until the formation of courts, as stipulated by the constitution. Vacant offices of judges shall be filled according to the procedure, established by the Constitution. Theme 5. Basics of administrative law 1. Subject and method of administrative law 2. Principles of legislation on administrative offence 3. Administrative offence 4. Administrative liability 5. Concept and purpose of administrative penalty. 6. Administrative liability of minors

1. Subject and method of administrative law Subject of administrative law can be concerned as a special group of public relations, which occurs in connection with functioning of executive authority’s all levels. Administrative and legal norms set out the rules of proper or potential behavior of administrative law subjects. At the same time, administrative and legal norms differ significantly from the norms of other law branches. They are characterized by a special subject of regulation ‒ public relations, which are the executive and administrative spheres of state activity. 2. Principles of legislation on administrative offence: 1. Legality; 2. Exclusive competence of the court; 3. Equality of individuals before the law; 4. Presumption of innocence; 5. Principle of guilt; 6. Inadmissibility of repeated administrative liability; 7. Principle of humanity; 8. Inviolability of person; 9. Respect the honor and dignity of individual; 10. Integrity of private life; 11. Inviolability of property; 12. Independence of judges; 90

13. Language production; 14. Acquittance from the testimony obligation; 15. Ensuring the rights to have qualified legal assistance; 16. Publicity of procedures on administrative offence; 17. Provision of safety during the production; 18. Freedom appeal of legal procedures and decisions; 19. Judicial protection of rights, freedoms and legitimate interests of individuals. 3. Administrative offence. Definition of an administrative offence ‒ wrongful, culpable (intentional or negligent) action or inaction of an individual or legal entity, incurring administrative liability is considered as an administrative offence. Types of administrative offence: 1. Intentionally committing of an administrative offence Administrative offence deemed to be committed intentionally if the individual who committed it, knew the illegality of his or her action (inaction), foresaw its harmful consequences, and was willing to commit it or consciously allowed these consequences or treated them indifferently. 2. Committing an administrative offence by negligence Administrative offence deemed to be committed by negligence, if the individual who committed it foresaw the possibility of harmful consequences of his or her action (inaction), but without sufficient reason lightly counted on to prevent them, or did not foresee the possibility of such consequences, although with proper care and foresight should have and could have foreseen them. 4.Administrative liability Administrative liability is subjected to: 1) physically sane person, who has reached the age of 16; 2) legal entity. Physically insane person is considered as a person who at the time of wrongful act was insane, which means that he or she was unable to understand the actual damage and danger of his or her action (inaction) or direct them, due to chronic mental illness, temporary mental disorder, dementia or other mental disease. Insanity – is not subjected to administrative liability. Circumstances, excluding administrative liability: 1. Necessary defense; 91

2. Detention of a person, who has committed an infringement; 3. Extreme necessity; 4. Reasonable risk; 5. Physical or psychological coercion; 6. Execution of an order or disposition. 5. Concept and purpose of administrative penalty Administrative penalty is a measure of state coercion, used by law authorized judges and officials for administrative offence commitment, in order to deprive or restrict the rights and freedom of offender. Administrative penalty is applied in order to: 1. recover the social justice; 2. educate the offender; 3. prevent the commission of further offences by the offender, and other individuals as well. Administrative penalty is not intended to: 1. cause physical suffering for person, who has committed an administrative offence; 2. humiliate human dignity; 3. damage reputation of legal entity. Administrative penalty – is not a means of property damage compensation. Types of administrative penalties: For the commitment of administrative offences, individual person may have the following administrative penalties: 1) warning; 2) administrative fine; 3) compensatory seizure of items, which was a tool or subject of administrative offence; 4) confiscation of the object, which was a tool or subject of administrative offence, as well as properties, obtained as a result of an administrative offence; 5) deprivation of a special right; 6) deprivation of license, special permit, qualification certificate or a suspension of her (his) actions on a particular activity or implementation of certain actions, including the exclusion from register; 7) suspension or prohibition of an individual entrepreneur activities; 92

8) forced demolition of illegally constructed or erected buildings; 9) administrative arrest; 10) administrative deportation from the Republic of Kazakhstan of an alien or a stateless person. Legal entities, for the commitment of administrative offences may apply the following: 1. administrative penalties; 2. suspension or prohibition of activities or particular activity types of a legal entity. Additional measures of administrative penalties: 1. compensated seizure of the subject, which was a tool or subject of an administrative offence; 2. confiscation; 3. forced demolition of erected buildings. Mitigating circumstances for an administrative offence: 1) repentance of guilty; 2) prevention of harmful consequences of the offence, voluntary compensation and removal of caused harm, by the person who committed an administrative offence; 3) committing an administrative offence under the influence of strong emotion or at the confluence of difficult personal or family circumstances; 4) committing an administrative offence by a minor; 5) committing an administrative offence by a pregnant woman or woman with a child under the age of 3 years; 6) committing an administrative offence as a result of physical or psychological coercion; 7) committing an administrative offence in violation of the selfdefense validity conditions, the detention of a person who committed unlawful encroachment, execution of order or disposition; 8) committing an administrative offence for the first time by negligence. 8. Aggravating circumstances for administrative offence: 1) continuation of unlawful commitment, despite the clarification of the law by the prosecutor (or) requirement made by authorized people to terminate it; 2) repeated commitment during one year of homogeneous administrative offence, for which the person has been incurred to administrative penalties, and they have not expired yet; 93

3) involvement of minors in administrative offence; 4) involvement of the people into an administrative offence commission, who are known to be suffering from a severe mental disorder, or people under the age from which the administrative liability comes; 5) committing an administrative offence by reasons of national, racial or religious hatred or enmity, revenge for lawful actions of others, as well as to conceal another offence or its alleviation; 6) committing an administrative offence related to person or his/her relatives in connection with the implementation of that person's official, professional or social duty; 7) committing of an administrative offence related to woman in a state of pregnancy, also a minor, or other defenseless or helpless person, or a person who is dependent on the perpetrator; 8) committing of an administrative offence by a group of people; 9) committing of an administrative offence in a natural disaster or other emergency situations; 10) committing of an administrative offence in a state of alcoholic, narcotic or for abuse of intoxication. Acquittance from administrative liability and administrative penalty: 1. Acquittance from administrative liability in connection with active repentance 2. Acquittance from administrative liability, in the case of offences minority 3. Acquittance from administrative liability in connection with the lapse of time 4. Acquittance from administrative liability and administrative penalties through amnesty 5. Acquittance from administrative liability in connection with the change of conditions as diseases 6. Acquittance from administrative liability in connection with the reconciliation of the parties 6. Administrative liability of minors. Minors can be individuals, who at the time of committing an administrative offence were 16 years of age, but less than 18 years. Minor who has committed an administrative offence may be imposed on administrative penalty with measures of compulsory education. 94

Application features of administrative penalties for minors. The amount of administrative fine imposed on a minor, cannot be less than one in a fifth of the monthly calculation index, and cannot exceed ten monthly calculation indexes regardless to fine amount. Fine is paid by the existing property of a minor. If there is the absence of sufficient amount of property to pay the fine, hence the fine will be imposed on the parents or other legal representatives. Deprivation of a special right can be imposed on minors for a period not exceeding one year. Other types of administrative penalties (except for administrative arrest), as well as measures of administrative and legal effects are applied to minors, who are guilt for an administrative offence, on the general basis. Acquittance of minors from administrative liability and administrative penalty Minor who has committed an administrative offence for the first time may be released by the court or official person, who is law authorized to consider cases on administrative offences, from administrative liability or from the execution of that administrative penalty using education measures, required by law. Education measures. Minors can be assigned to the following education measures: 1) clarification of the law; 2) pass under the supervision of parents, alternative individuals instead of parents, or a specialized state body; 3) obligation to make amends for caused harm; 4) restriction of leisure and special requirements in terms of the minor’s behavior. Glossary Administrative offence – административное правонарушение; Legality – законность; Exclusive competence – исключительная компетенция; Presumption of innocence – презумпция невиновности; Inadmissibility – недопустимость; Administrative liability – административная ответственность; Inviolability of person – неприкосновенность личности; The honor and dignity – честь и достоинство; 95

Integrity – неприкосновенность; Language production – язык производства; Acquittance – освобождение; Testimony obligation – обязанность давать свидетельские показания; Provision of safety – обеспечение безопасности The production – производство; Freedom appeal – свобода обжалования; Legitimate interests – законные интересы; Culpable – виновное; Intentional – умышленное; Negligent – неосторожное; Action or inaction – действие или бездействие; Incurring – принимать на себя, нести (ответственность); Committing – совершение (правонарушения); Deemed to be – признается; Foresaw – предвидеть; Harmful consequences – вредные последствия; Indifferently – безразлично; Sufficient reason – обоснованная причина; Lightly counted on – легкомысленно рассчитывать на; Proper care and foresight – должная внимательность и предусмотрительность; Physically sane person (or insane) – физически вменяемое лицо (или невменяемое); Chronic mental illness – хроническое психическое заболевание; Detention – задержание; Infringement – посягательство; Coercion – принуждение; Order – приказ; Disposition – распоряжение; Administrative penalty – административное взыскание; Administrative and legal exposure – административно-правовое воздействие; Deprive – лишение; Restrict – ограничение; Offender – правонарушитель; Recover the social justice – восстановление социальной справедливости; 96

Educate the perpetrator – воспитание правонарушителя; Humiliate – унижение; Administrative fine – административный штраф; Compensatory seizure – возмездное изъятие; Exclusion – исключение; Suspension – приостановление; Erected buildings – возведенное строение; Alien – иностранец; Forced demolition – принудительный снос; Mitigating circumstances – смягчающие обстоятельства; Repentance of guilty – раскаяние виновного; Confluence – стечение (тяжелых обстоятельств); Violation – нарушение; Self-defense validity – необходимая самооборона; Unlawful encroachment – противоправное посягательство; Aggravating circumstances – отягчающие обстоятельства; Homogenous – однородное (правонарушение); Severe mental disorder – тяжелое психическое расстройство; Conceal – скрыть; Alleviation – облегчить; Acquittance from – освобождение от; Offences minority – малозначительность правонарушений; Lapse of time – истечение срока давности; Reconciliation – примирение; Impose on – налагать; Compulsory education – воспитательное воздействие; Monthly calculation index – месячный расчетный показатель (МРП) Legal representatives – законный представитель; Release – освободить; Make amends – загладить причиненный вред. Control questions 1. What is the subject of administrative law? 2. What is the distinctive feature of administrative and legal norms? 3. How are they classified? 4. Tell about the subjects of administrative law. 97

5. What features do they possess? 6. What are the rights and obligations of citizens in state administration? 7. Give the concept of administrative liability. 8. What is its base? 9. List the main types of administrative penalties. Theme 6. Basics of civil law 1. Concept of civil law 2. Civil law relation: concept, features, content 3. Basic principles of civil law 4. Basis of civil rights and obligations emergence 5. Subjects of civil relations. 6. Legal entities as members of civil relations 7. Objects of civil legal relations 8. Transactions 9. Rights of ownership

1. Concept of civil law Speaking about the concept of civil law, it should be mentioned, that it is very difficult, multifaceted, and multivalued. As a branch of law, civil law can be considered as aggregation of legal norms, aimed primarily at regulation of property relations, which occurs in the field of commodity production. What is the subject of civil law? The subject of civil law has two types of property relations: a) property relations, i.e. relations, which occurs regarding different types of material goods ‒ services, implementation of certain types of work, items; b) private non-property relations, which are directly connected, as a general rule, with property relations. Sources of civil law. Constitution of the Republic of Kazakhstan contains in itself, fundamental principles and norms of various branches of the law, as relevant principles and norms of civil law. Among them, for example, the basic provisions, concerning the rights to private property and inheritance, which are protected and guaranteed by the law; ownership rights, use and disposal of lands and other resources, etc. Important role in the system of civil law sources, play current laws. Central place among them takes Civil Code of the Republic of Kazakhstan. 98

Along with Constitution of the Republic of Kazakhstan and the ordinary laws, also important role takes bylaws as the source of civil law. 2. Civil-law relation: concept, features, content Civil-law relations can be considered as a form of legal relations. It represents regulation of civil law and attitude, which occurs from civil law norms base. Distinctive feature of subjects of civil-law relations, and hence the importance of relations can be concerned, firstly subject ‒ parts of these relations in the property and organizational plan are completely independent from each other. Secondly, they are legally equal. And, thirdly, the legal guarantees of each party subjective right are peculiar only to civil law methods for their protection and appropriate measures for non-performance or improper performance of obligations by the parties. Relations, which are regulated by civil legislation can be as following: 1. goods and money relations; 2. property relations; 3. personal non-property relations, but linked to property relations. People, who are involved in civil legislation, can be as following: 1. citizens; 2. legal entities; 3. government; 4. administrative and territorial units. 3. Basic principles of civil law: 1. recognition of all involved people’s equality between each other; 2. inviolability of property; 3. contract freedom; 4. inadmissibility of arbitrary interference in private affairs; 5. need for the smooth implementation of civil rights; 6. provision of violated right’s redress, and their judicial protection. 4. Basis of civil rights and obligations emergence: 1) from agreements and other transactions, provided by the legislation, also from transactions which are not specified in the legislation, but do not contradict the legislation anyway; 2) from administrative acts which give force to the emergence of civil rights, and their consequences; 99

3) from court decisions, which can establish civil rights and obligations; 4) as a result of creating or acquiring property, which are not prohibited by legislative acts; 5) as a result of inventions, industrial samples, science works, literature and art, also any other results of intellectual activities; 6) as a result of causing harm to any other person, which can be in terms of unjustified property acquisition or preservation at the detriment of another person (unjustified enrichment); 7) as a result of any other acts of citizens and legal entities; 8) as a result of events, which have caused contradictions to the civil legislation. Civil rights are protected by: 1. court 2. arbitration 3. court of referees Protection of civil rights is implemented by: 1. recognition of rights; 2. recovery of situation that existed before violation of right; 3. suppression of actions that violate the law or threatening to violate; 4. enforcement, in order to execute the obligations; 5. compensation of losses and damages; 6. recognition of the invalid transaction; 7. compensation of moral losses; 8. termination or alteration of legal relations; 9. recognition of an act, which is invalid, cannot be applied or does not comply with legislation of the state administration, local representative or executive body; 10. fine foreclosure from the state body or official entity for impeding a citizen or legal entity to acquire or implement a right. 5. Subjects of civil rights. Conception of physical entity. Citizens of the Republic of Kazakhstan, citizens of other states, as well as stateless people can be understood as physical entities. Legal capacity of citizens. The capability to have civil rights and bear obligations (the legal capacity of citizens) is recognized equally to all citizens. 100

The legal capacity of a citizen emerges at the moment of his\her birth and ceased by the death. The main principles of citizen’s legal capacity: 1. citizen has rights to own properties, including foreign currency; 2. inherit and bequeath property; 3. move freely in the territory of the republic and choose the place of residence; 4. freely leave the boundaries of the republic and return to its territory; 5. engage in any activities which are not prohibited by legislative acts; 6. create legal entities; 7. make any transactions which are not prohibited by legislative acts; 8. have rights to the intellectual property with regards to inventions, science works, literature, art and any other results of intellectual activity; 9. claim for compensation of financial and moral damage; 10. have any other property and private rights. Active legal capacity of citizens. The capacity of citizen to acquire and realize civil rights, making for him (her) civil obligations and execute them (active legal capacity of citizens) emerges fully when the citizen reaches the adult age, which is 18 years. In the case, if legislative acts allow marrying before the reach of 18 years, a citizen who has not reached 18 years of age, fully acquire the active legal capacity since marriage. All citizens have equal rights for active legal capacity, unless it is not stipulated by legislative acts in another way. Active legal capacity of minors at the ages from 14 to 18. Minors at the age from 14 to 18 can make transactions or deals with the consent of their legal representatives. Minors at the age from 14 to 18 years have the rights to independently dispose of their wages, scholarships and any other incomes and the intellectual property rights, also to make small household deals and agreements. 101

Minors at the age from 14 to 18 independently bear responsibility with regards to the deals or agreements, also for damage caused by their actions. Active legal capacity of minors under 14 (children). For minors who have not reached 14 years of age agreements or deal are committed by their legal representatives on their behalf, unless it is not stipulated by legislative acts in another way. Minors under the age of 14 years have the rights to make only appropriate to their age small household deals, which are executed on their behalf. Rights of minors to make bank deposits and dispose of them. Minors have the rights to make bank deposits and to independently dispose them. Bank deposits, which are made by somebody else on behalf of minors, who have not reached 14 years of age, are managed by their parents or any other legal representatives, while minors who have reached 14 years of age may dispose of bank deposits on their behalf. Acquiescence of a citizen as legally incapable. 1. A citizen who, as a result of psychiatric disease or mental disability, cannot understand the meaning of his (her) acts or direct them, may be recognized by the court as incapable, and with regards to this fact, guardianship is established over him (her). 2. On the behalf of citizens, who is recognized as incapable, the transactions and deals are carried out by his (her) guardian. 3. In the case of recovery or significant improvement of the incapable citizen’s health, hence the court will recognize him (her) as capable, after which guardianship is removed over him (her). Restriction of citizen’s active legal capacity – a citizen who consequential to the abuse of alcoholic drinks or drug substances puts his (her) family into a difficult financial situation, may be restricted by the court with regards to his (her) active legal capacity. Acquiescence of a citizen as whereabouts unknown ‒ if within one year in his (her) place of residence, there is no information about him (her). Announcement of a citizen as deceased: 1. If there is no information about him (her) in the place of usual residence within three years; 2. If he (she) disappeared under circumstances which threatened 102

death or which can give reasons to assume his death in an accident, for six months. 3. A military man, or any other person who is whereabouts unknown due to military actions, may be announced as deceased not earlier than upon the expiry of two years from the date of the military actions terminate. 6. Legal entities as members of civil relations Legal entity is an organization that has the rights of ownership, economic management or operational management, solitary property and responsibility for that property in compliance with their obligations, on its own behalf to acquire and implement property and personal non-property rights and obligations, and also to be plaintiff and defendant before the court. Types and forms of legal entity: 1. Commercial organization (enterprise) – organization, which pursues the profiting income as the primary purpose of their activities. 2. Non-commercial organization – organization, which doesn’t pursue the profiting income and doesn’t distribute the earned income between involved people in it. Legal entity, which is a commercial organization (enterprise) may be implemented solely in the form of: 1. state-owned enterprise; 2. business partnership; 3. joint-stock company; 4. production co-operative. A legal entity, which is a non-commercial organization, may be implemented in the form of: 1. institution; 2. public association; 3. joint-stock company; 4. consumer co-operative; 5. fund; 6. religious association. Legal capacity of legal entity. Legal entity may have civil rights and bear obligations in compliance with its activity. 103

Legal entity may be engaged in certain types of activities, the list of which is defined by legislative acts, only on the basis of a license. Legal capacity of legal entity emerges at the moment of its implementation and is ceased at the time of liquidation end. Legal capacity of legal entity in the sphere of activities, which requires a license, is emerged from the acquisition of such license and ceased at the moment of its revocation, expiry of the validity term or recognition of its as invalid in the manner prescribed by legislative acts. 7. Objects of civil legal relations. The property and private non-property’s privileges and rights can be objects of civil rights. The property’s privileges and rights include: 1. personal stuff; 2. money, including foreign currency and financial tools; 3. jobs; 4. services; 5. objectified results of creative and intellectual activities; 6. commercial names; 7. trademarks and any other means of products individualization; 8. and other assets. The private and non-property privileges and rights include: 1. life; 2. health; 3. the dignity of an individual; 4. honor; 5. reputation; 6. business reputation; 7. inviolability of private life; 8. personal and family secrets; 9. right on name; 10. right to be an author; 11. right to inviolability of production and any other intangible privileges and rights. Immovable and movable property. Immovable property (immovable assets, real estate) includes: 1. land plots; 2. buildings; 3. construction; 104

4. perennial plantations, and other property, which is closely linked to land; 5. air and sea vessels; 6. inland navigation vessels; 7. navigation vessels in the form of “river-sea”; 8. cosmic facilities; 9. linear part of the trunk pipelines. Divisible and indivisible property Property can be divisible and indivisible. Divisible property – the property, part of which, do not lose its purpose (functions) as a result of division or section. Indivisible property – the property, which cannot be divided without changing its economic designation (function), or which is cannot to be subdivided in the manner prescribed by legislative act. Compound items. When heterogeneous items form a single unit, which permits its use with a purpose, distinguished by their combination, can be considered as a single object (compound item). The effect of a transaction or deal, which is concluded with regards to compound items, has to be applied to all its constituent parts, unless an agreement is specified in another way. Main item and its appurtenances An appurtenance, that is, an item designed to serve main item and which is tightly connected with it by common economic designations; it follows the purpose of the main item, unless legislation or agreement is stipulated in another way. Benefits, production and income. Income, which is obtained as a result of using assets (benefits, production, income), belongs to the person who uses those assets on a legal basis, unless legislation or agreement is stipulated in another way, in terms of these assets use. Animals. General rules concerning objects can be appropriately applied to animals, as far as legislation is not stipulated in another way. Intellectual property The rights of citizen or legal entity, in terms of the intellectual creative activities and means of legal entity’s individualization, product of physical or legal entity, execution of their works and services (trade name, trademark, service mark, etc.) 105

Official and commercial secrets. Civil legislation protects the information, which constitutes official or commercial secret, in a case, when the information has actual or potential commercial value in order to be unknown for third people, if there is no access on a legitimate basis and the possessor of information makes an effort to protect its confidentiality. Money (currency); Currency value; Financial tools. 8.Transactions Definition of transaction. The actions of citizens and legal entities, which are aimed at establishing, changing or terminating civil rights and obligations, can be recognized as transactions. Unilateral transactions and agreements. Transactions may be unilateral, bilateral or multilateral (agreements). The transaction, where the expression of one part can be required and that is sufficient, in accordance with the part’s legislation or agreement, can be considered as unilateral transaction. If there is a need of two part’s expression in order to make an agreement is called bilateral transaction, and three or more part’s is called multilateral transaction as well. Forms of transactions Transactions can be made in oral or in written form (simple or notary). Reasons of invalid transactions: 1. A transaction is considered as invalid, without obtaining the required license or after expiry of the license term. 2. A transaction is considered as invalid, which pursues the goals of unfair competition or which violates the business ethic requirements. 3. A transaction is considered as invalid, which is implemented by the person who is under 14 years of age (children). 4. A transaction, which is implemented by the person under 14 years, without consent of his (her) legal representatives can be considered as invalid. 5. A transaction is considered as invalid, which is implemented by the person who is recognized as incapable, from the results of a mental disease or mental weakness. 106

6. Upon the requirements of guardian, court may recognize the transaction as invalid, which is implemented by the person whose active legal capacity is restricted by the court. 7. A transaction, which is implemented by citizen who, although capable, but at the moment of its commitment was in a state that he (she) could not realize the meaning of his actions or direct them, may be recognized by the court as invalid in compliance with the action of that citizen, but when the citizen did not have an opportunity to claim during his life, ‒ after the citizen’s death upon the claim of any other interested persons. 8. A transaction, which is implemented, as a result of significant error may be recognized by the court as invalid upon claim by the part which acted under the influence of misguidance. 9. A transaction, which is implemented under the influence of fraud, violence, or threat, and also transaction that the person was compelled to implement as a result of difficult circumstances and on conditions extremely unprofitable for himself (herself), and it was exploited by the other part (onerous transaction), may be recognized by the court as invalid upon claim of the victim. 10. A transaction, which is implemented as a result of malicious collusion between the representatives of one part with another part, may be recognized by the court as invalid upon claim of the victimized part. 11. A transaction, which is implemented by a legal entity, in contradiction to objects of the activity. 9. Rights of ownership. Definition and content of the right to own. The right to own is recognized and protected by legislative acts, in terms of the subject’s right at his (her) discretion to own, use and dispose of the property which belongs to him (her). The owner has the rights to possess, use and dispose of his (her) property. Rights of ownership are represented as the legally-enforced opportunity to implement the actual possession of properties. Rights of use are represented as the legally-enforced opportunity to extract from properties, their useful natural features and also benefits from them. The profit may be in the form of income, revenue increment, and in other forms. 107

Rights of dispose are represented as the legally-enforced opportunity to determine the legal destiny of property. Conception and types of private property. Private property is recognized as the property of citizens and stateless legal entities and their associations. Any property can be private, except for certain types of property which cannot belong to citizens or legal entities in the manner prescribed by legislative acts. The quantity and cost of property which are in private ownership is not limited. Rights of state property. State property is recognized in the form of the republic and communal property. Republic property consists of the state treasury and property, allocated to state owned republic's legal entities in accordance with legislative acts. Funds of the republic budget, objects of the state property, and other state property which is not attached to state-owned legal entities, can compose State Treasury of the Republic of Kazakhstan. Communal property consists of the local treasury and properties, which are entrusted to the communal legal entities in accordance with legislative acts. Basis for the acquisition of ownership:  Emergence of ownership rights on the newly created immovable property; Conversion;  Emergence of consumer’s ownership rights under the contract;  Transfer of things;  Prescription of consumption;  Appeal to the public assets property of collection or production;  Ownerless things;  Movable property, from which the owner refused;  Unauthorized building;  Finding;  Neglected animals;  Treasure; 108

 Acquisition of seized property from the owner. Termination of property and other rights. Basis for termination of property rights:  Refusal of ownership;  Foreclosure on the property of owner;  Termination of individuals ownership rights who cannot be the owner of this property according to legislative acts;  Requisition;  Confiscation;  Termination of the ownership rights on immovable property in connection with the seizure of land plot and other natural resources;  Seizure of thriftless historical and cultural monuments, also cultural values. Glossary Civil Legislation – гражданско-правовые отношения; Goods and money relations – товарно-денежные отношения; Violated right’s redress – восстановление нарушенных прав; Judicial protection – судебная защита; Transactions – сделки; Contradict – противоречить; Industrial samples – промышленные образцы; Intellectual activity – интеллектуальная деятельность; Acquisition – приобретение; At the detriment of another person – за счет другого лица; Arbitration – арбитраж; Court of referees – третейский суд; Suppression – пресечение; Enforcement – присуждение; Invalid – недействительная; Termination – прекращение; Alteration – изменение; Fine foreclosure – взыскание штрафа; Impeding – воспрепятствование; Civil rights – гражданские права; Physical entity – физическое лицо; Legal entity – юридическое лицо; 109

Legal capacity – правоспособность; To bear obligations – нести обязанность; Foreign currency – иностранная валюта; Inherit – унаследовать; Bequeath – завещать; Active legal capacity – дееспособность; Dispose of – распоряжаться; Small household deals – мелкие бытовые сделки; On the behalf of – от имени Acquiescence – признание; Legally incapable – недееспособный; Guardianship – опека; Deceased – умерший; Economic management – хозяйственное ведение; Plaintiff – истец; Defendant – ответчик; Ceased – прекращается; Revocation – аннулирование; Expiry of the validity term – истечение срока действия; Property’s privileges and rights – имущественное благо и право; Commercial name – фирменное наименование; Intangible – неприкосновенность; Perennial plantations – многолетние насаждения; Air and sea vessels – воздушные и морские суда; Inland navigation vessels – суда внутреннего водного плавания; Navigation vessels in the form of “river-sea” – суда плавания “река-море”; Linear part of the trunk pipelines – линейная часть магистральных трубопроводов; Heterogeneous items – разнородные вещи; Constituent parts – составные части; Appurtenances – принадлежность; Legitimate basis – законное основание; Possessor – обладатель; Unilateral, bilateral, and multilateral transactions – односторонние, двух или многосторонние сделки; Violate – нарушать; Fraud – обман; Compelled – вынужденно; 110

Exploited by – воспользоваться; Onerous transaction – кабальная сделка; Victim – потерпевший; Malicious collusion – злонамеренное соглашение; Discretion – усмотрение, благоразумие; Legally-enforced – юридически обеспеченная; Extract from – извлекать; Revenue increment – приращение; State property – государственная собственность; Republic property – республиканская собственность; Communal property – коммунальная собственность; Entrusted to – закрепленная за; Conversion – переработка; Transfer – передача; Prescription of consumption – приобретательная давность; Seized property – изъятое имущество; Thriftless – бесхозяйственный, бесполезный. Control questions 1. What is meant by civil law as a branch of law? 2. What is the subject of this law? 3. Types of civil law principles. 4. What legal documents can be concerned as sources of law? 5. What are the elements of civil law system? 6. What is the content of civil-law relations? 7. Who and under what conditions may be involved in civil-law relations? Theme 7. Basics of family law 1. Concept of family law 2. Basis of marriage and family legislation of the RK 3. Termination of marriage 4. Individual rights and obligations of spouses 5. Rights of the child 6. Alimony obligations of spouses and former spouses

1. The concept of family law Family law ‒ this is the branch of law, consisting of legal norms, 111

which regulate social relations that occur between people in the process of creation and existence of family, as well as termination of marriage. Relations regulated by marriage and family legislation of the Republic of Kazakhstan 1) sets out the rights and obligations, proprietary and personal relationships between family members: spouses, parents and children, and within the limits prescribed by marriage and family legislation of the Republic of Kazakhstan, among other relatives and individuals; 2) implements the conditions and procedure of marriage (matrimonial state), its termination and invalidation; 3) determines the form and manner of orphans and children entering to family, who were left without parental care; 4) governs the procedure of state registration, in terms of civil state acts; 5) defines the functions of state bodies, which implement the state registration of civil state acts. 2. Basis of marriage and family legislation of the Republic of Kazakhstan Marriage (matrimonial state) and family, motherhood, fatherhood and childhood are under state protection. Marriage and family legislation of the Republic of Kazakhstan is based on the principles of: 1) voluntary marriage (matrimonial state) of man and woman; 2) equal rights of spouses in the family; 3) inadmissibility of arbitrary interference in family matters; 4) solution of issues by mutual agreement; 5) priority of family upbringing, care about their growth and well-being; 6) priority to protect the rights and interests of minors, elderly and disabled family members; 7) ensure of smooth implementation, in terms of family member’s rights, as well as the possibilities of those rights judicial protection; 8) maintenance of all family member’s healthy lifestyle. Marriage (matrimonial state) can be admitted only by state authorities. Marriage (matrimonial state), which was admitted by religious rites and ceremonies, is not equal to the registered marriage (matrimonial 112

state) by state authorities, and it doesn’t generate appropriate legal consequences. Actual cohabiting of man and woman, also individuals of the same sex cannot be admitted as marriage (matrimonial state). Terms and conditions of marriage (matrimonial state): There is a requirement of full and free consent of the man and woman for marriage (matrimonial state). They should reach the marriageable (spousal) age. Marriageable (spousal) age. 1. Marriageable (spousal) age sets for men and women at age of 18. 2. Registration authorities at the place of marriage state registration can reduce the marriageable (spousal) age for a period not exceeding two years if they have following valid reasons as: 1) pregnancy; 2) birth of a common child. Individuals, who are not allowed to the marriage (matrimonial state): 1) individuals of the same sex; 2) if at least one person is already in another registered marriage (matrimonial state); 3) close relatives; 4) between adopters and adoptees, also children’s of adoptees and adopted children; 5) if at least one of them is recognized as legally incapable due to mental illness or dementia by the court. 3. Termination of marriage (matrimonial state) Termination of marriage (matrimonial state) is the cessation of legal relationship between spouses, as a result beyond their circumstances (death, declaring one of them as dead or whereabouts unknown person), or as a result of actions by both or one of the spouse’s wills by divorcement, in the manner prescribed by the law. Termination of marriage (matrimonial state) between the spouses doesn’t interrupt or stop the relationships between parents and children, which were born or adopted in this marriage (matrimonial state). Divorcement of marriage (matrimonial state) Marriage (matrimonial state) may be terminated by divorcement at the request of one or both spouses, as well as application of the husband’s or wife’s guardian, in the case if one of them recognized by the court as legally incapable. 113

Divorcement of marriage (matrimonial) is not possible without the consent of the wife during her pregnancy and the first year of a child's life. Divorcement of marriage (matrimonial state) at the registration authorities Divorcement of marriage (matrimonial state) at the registration authorities is made by the mutual agreement of spouses who do not have common minor children, and in the absence of property and other claims against each other. Regardless of how many minors the couple has in common, marriage (matrimonial state) is dissolved by registration authorities at the request of one spouse if the other spouse is: 1) adjudged to be whereabouts unknown; 2) adjudged to be legally incapable; 3) adjudged to have limited legal capacity; 4) has been convicted of a crime to imprisonment for a term not less than three years . Divorcement of marriage (matrimonial state) judicially Divorcement of marriage (matrimonial state) judicially can be in cases, if the court found that the further common life of the spouses and family preservation is impossible. Divorcement of marriage (matrimonial state) judicially can be realized in the following cases: 1) if the spouses have minor children in common; 2) lack of consent from one spouse to divorce; 3) if one of the spouses, despite his lack of objection, by action or inaction, evades to divorce; 4) if there is a property and other claims of spouses to each other. Annulment of marriage (matrimonial state) as invalid: Marriage (matrimonial state) is repealed by the court in the following cases: 1) if there is a sham marriage (fictitious marriage); 2) if this marriage (matrimonial state) was made under duress; 3) if one of the spouses, hid about disease, that poses a real danger for members of the family, in terms of personal and public safety. The court has to send an extract of the judgment to the registration authority at the place of marriage state registration, within three days from the annulment date of marriage (matrimonial state). 114

Marriage (matrimonial state) is repealed from the annulment date. 4.Individual rights and obligations of spouses Rights and obligations of spouses occur from the date of marriage state registration.  Equality of spouses in the family Spouses have equal rights and equal obligations. Each spouse has free choice of an activity type, profession and religion. Questions of motherhood, fatherhood, parenting, children's education, place of residence, stay of spouses and other family matters have to be solved together by spouses. Spouses are obliged to create their family relationships based on mutual respect and mutual assistance, to support the well-being and strengthening of family, take care of health, growth and welfare of their children.  Surname choice rights of spouses In marriage (matrimonial state) spouses can choose the surname of one of them as a common last name, or each spouse can retain their premarital surnames, or one (both) adds to his or her surname the surname of other spouse. Compound surnames are not allowed, if premarital surname of at least one of the spouses is a dual. In the case, if there is a change of surname at the state registration of marriage (matrimonial state) citizen must exchange identity documents within one month. Surname change of one of the spouses does not entail a mandatory change in the surname of the other spouse. In the case of divorcement of marriage (matrimonial state) spouses have rights to save the selected surname in marriage (matrimonial state) or to restore their premarital surnames. Property rights and obligations of spouses. Legal regime of matrimonial property. The legal regime of matrimonial property can be considered as their commonly joint property if the marriage contract is not stipulated in another way. Commonly jointed property of spouses: Property which was acquired by spouses during the marriage (matrimonial state) can be called as their commonly joint property. Property which was acquired by spouses during the marriage (matrimonial state) includes the amount of each spouse’s income from: 115

a) employment; b) entrepreneurship; c) results of intellectual activity; d) amounts of income from community and separate property of each spouse; e) their received pensions, benefits, and other cash payments, without any special purpose (the amount of material aid, and also the amount, which was paid with regards to indemnifications due to injury or other impairment of health, etc.) Common property of spouses can be considered as, the property, which was acquired by common income of spouses, in terms of movable and immovable property, security papers, corporate stocks, investments, shares in the credit institutions or other organizations, and any other acquired properties by the spouses during the marriage (matrimonial state), regardless of the matter for whose name it was acquired in the family or who have paid for that. Rights for community property, belongs also to the spouse who during the marriage (matrimonial state) did housekeeping, child care, or for other valid reasons could not have an independent income. Property of each spouse. Property of each spouse can be considered as: 1) property, which was owned by each spouse before marriage (matrimonial state); 2) property, which was received by the spouses during the marriage (matrimonial state) as a gift, inheritance or another gratuitously deals or agreements; 3) individual things of use (clothing, shoes, and etc.), except for jewelry and other luxury items, even though they were acquired during the marriage (matrimonial state) from the common income of the spouses. Contractual regime of matrimonial property. Marriage contract. Marriage contract is an agreement of the individuals, who are going to marry, or spouses, which can define the property rights and obligations of spouses in the marriage (matrimonial state) and (or) in the case of its dissolution. Marriage contract may provide the property rights of children, who was born or adopted in the marriage (matrimonial state). Making of the marriage contract. 116

Marriage contract can be made from application date to the registration authority at the state registration of marriage (matrimonial state), despite before the state registration of marriage (matrimonial state), or at any time during the marriage (matrimonial state). Marriage contract, which was made before the state registration of marriage (matrimonial state) will enter to its force only in the state registration of marriage date. Marriage contract has to be in written form and subjected to mandatory notarization. 5. Rights of the child  The child's right to grow up in a family  The child's right to communicate with parents and other relatives  The child's right to express his or her opinion  The child's right to have a name and surname  The child's right to protect his or her rights and legal interests  Alimony relations of family members  Alimony obligations of parents and children Parents obligations for minor children maintenance . Parents must maintain their minor children. The manner and form of providing minors maintenance are determined by the parents independently. Parents have rights to make an agreement about the maintenance of their minor children, as well as adult children, who is enrolled in general secondary, technical and professional, post-secondary education, also full-time higher education (agreement to pay alimony). In the case, if parents do not voluntarily provide funds for their minor children maintenance, and adult children studying in the general secondary, technical and professional, post-secondary education, full-time higher education at the age of 21 years, these funds exacted from them judicially. The amount of alimony, exacted for minor children judicially. In the absence of agreement on the alimony payment, alimony for minors exacted by court from their parents on a monthly basis in the amount of: one child ‒ one-quarter, two children ‒ one third, for three or more children ‒ half of their earnings and (or) other income of parents. The amount of these shares may be reduced or increased by the court, taking into account material or marital status of the sides and other relevant circumstances. 117

The right to receive alimony for disabled adult children. Able-bodied parents are obliged to support and maintain their disabled adult children who need their assistance. Adult children obligations to support and maintain their parents 1. Able-bodied adult children have to assist their disabled parents and take care of them. 2. In the absence of agreement on the alimony payment for disabled parents, who needs assistance, is exacted from able-bodied adult children judicially. Involvement of adult children in additional costs for parents In the absence of care from adult children, concerning their disabled parents and in exceptional circumstances (serious illness, injury, need to pay for parent’s nursing care, putting him in the medico-social institution, and others) adult children can be held by the court to involve in the fulfillment of the additional costs caused by these circumstances. 6.Alimony obligations of spouses and former spouses Obligations of spouses by mutual content. Spouses are obliged to support and maintain each other. In case of refusal to provide such support and maintenance, and deficiency of agreement between the spouses about payment of alimony rights, there can be request in order to pay this alimony judicially from the other spouse, who has the means to do so, as following: 1) disabled spouse, who need assistance; 2) spouse during pregnancy and for three years from the date of a child birth; 3) spouse, who need assistance, because he or she takes care of disabled child up to the age of 18 years, and in the case of disabled child, who has I ‒ II disability group at the age of 18. acts of civil state – this is the legal circumstances, which can individuate the person, also the occurrence, availability, and termination of his (her) rights and obligations; department of civil state acts registration – this is the territorial authority of justice, which can implement the state registration of civil state acts; alimony ‒ monetary or material maintenance, which one person is required to give to another person, who has the rights to receive them; 118

child (children) ‒ a person under 18 years of age (adult age); adoption ‒ legal form of child (children) handover to foster care on the basis of the judgment, as a result of which there are nonproperty and property rights and obligations, equated to the rights and obligations of origin family; childhood ‒ legal state of person under the adult age; legal representatives of the child ‒ parents (or parent), adoptive parents, guardian or custodian, foster parents and other substitute individuals, which are carried out in accordance with laws of the Republic of Kazakhstan care, upbringing, education, protection of rights and interests of the child; close relatives ‒ parents (or parent), children, adoptive parents, adoptees, full and half brothers and sisters, grandparents, grandchildren; sham marriage (fictitious marriage) – this is the marriage state, concluded in accordance with law of the Republic of Kazakhstan, means without intending of spouses or one of them to start a family; orphan child (orphans) ‒ child (children), whose parents both died, or just a single parent; marriage (matrimonial state) ‒ equal union between man and woman, which was made with free and full consent of both sides in accordance with law of the Republic of Kazakhstan, in terms of the intention to create a family, generating property and non-property rights and obligations between spouses; family – set of people, concerned with property and non-property rights and obligations, which arise from the marriage (matrimonial state), kinship, affinitive, adoption or other forms of children acceptance for foster care, in order to help strengthen and develop family relationships; relatives – individuals, which are in family relationship, having common ancestors to great grandparents. Glossary Acts of civil state – акты гражданского состояния; Alimony – алименты; Adoption – усыновление (удочерение); Handover to foster care – передача ребенка на воспитание; Adoptive parents – усыновители; Guardian – опекун; Custodian – попечитель; Foster parents – патронатный воспитатель; 119

Sham marriage – фиктивный брак; Orphan child – ребенок сирота; Matrimonial state – супружество; Kinship – родство; Affinitive – свойства, связанные узами; Arbitrary interference – произвольное вмешательство; Smooth implementation – беспрепятственное вмешательство; State authorities – государственный органы; Actual cohabiting – фактическое сожительство; Legally incapable – недееспособный; Dementia – слабоумие; Cessation – прекращение; Whereabouts unknown person – безвестно отсутствующий человек; Will – воля, желание; Limited legal capacity – ограниченно дееспособный; Repealed by the court – признается судом; Duress – принуждение; Hid – скрывать; Extract of the judgment – решение суда; Retain – сохранить; Premarital surname – добрачная фамилия; Legal regime – законный режим; Entrepreneurship – предпринимательская деятельность; Benefits – 1. прибыль 2. пособие; Material aid – материальная помощь; Indemnifications – утрата; Impairment of health – повреждение здоровья; Movable and immovable property – движимое и недвижимое имущество; Security papers – ценные бумаги; Corporate stocks – паи; Shares – доли в капитале; Contractual regime – договорный режим; Mandatory notarization – нотариальное удостоверение; Able-bodied parents (or disabled) – трудоспособные родители (нетрудоспособные) Former spouses – бывшие супруги; Disability group – группа инвалидности. Concept and principles of family law 120

Control questions to the topic 7 1. What is the basis of family relationship appearance and development? 2. What principles are based on family law? 3. What are the rights and obligations of minors? 4. List the rights and obligations of parents. 5. What measures exist, in order to limit parental rights? 6. Tell about the maintenance obligations of children, with regards to their parents. Theme 8. Basics of criminal law 1. Criminal law and its subject 2. Principles of criminal law 3. Crime: the concept, the basic features 4. Components of crime 5. Notion and purpose of the punishment

1. Criminal law and its subject Criminal law is one of the most important branches of modern Kazakhstani law. Like any other branch of law, it consists of legal norms system, which regulates a certain range of public relations. Specificity of last one concludes that they occur in connection with and in terms of offence and their application to individuals, who has committed the affection of criminal law measures. Criminal law ‒ the system of legal norms established by the state, defining crime and the punishment for the socially dangerous acts, conditions and procedures of punishment, as well as procedures for exemption from criminal liability and punishment. Subject of Criminal Law The subject of Criminal law is a public relations arising in the process of committing a crime between the offender and the state in the face of bodies performing prosecution and justice. The tasks of Criminal Law  Protecting the public relations from the criminal encroachments: The rights and freedom of the person and citizen Property 121

Public order Public Safety Environment Constitutional order  Securing peace and safety of mankind  Prevention of Crime 2. Principles of Criminal Law The principle of legality The principle of equality citizens before the law The principle of guilt Principle of justice The principle of humanism 3. Crime: the concept, the basic features Crime is guilty, socially dangerous act (action or inaction), prohibited by law, under threat of punishment. The basic signs of crime: Social danger – the ability of act to cause harm to legally protected interests. Outlaw – prohibited acts under pain of criminal punishment. Culpability – the mental attitude of the subject to the act committed and its consequences Criminal liability – liability for the offense according to the law. Categories of crime: 1. A less serious crime – intentional or negligent acts for which the punishment is not more than 2 years in prison. 2. Crimes of medium gravity – intentional or negligent acts for which the punishment is not over 5 years’ imprisonment. 3. Grave crimes – deliberate and incautious offence for which the punishment is not more than 12 years in prison. 4. Major crimes – only intentional acts for which the punishment is more than 12 years imprisonment or a more severe punishment. 4. Components of crime: 1. The object of crime-social relations for what directed criminal act 2. Objective side of the crime ‒ form of a social danger act, action or inaction 3. Subject of crime ‒ responsible person, who has attained the age of 16. 4. The subjective side of the crime ‒ form of guilt. Meaning of crime components: 122

 Base of criminal responsibility  Criminalization of social dangerous acts Circumstances which are exception to criminality: Necessary defense Emergency necessity. Make damage during the arrest of the person who committed the crime. Reasonable risk. Physical or mental coercion. Execution of the order or instructions. Implementation of the operational-search activities. 5.Notion and purpose of the punishment. Punishment is a measure of state coercion, appointed by a court. Punishment is applied in order to:  restore social justice,  correction of the convict  prevention of new crimes The types of punishment: basic and additional. Basic types of punishment: a) fines; b) deprivation of the right to occupy certain positions or engage in certain activities; c)community service; d)correctional work; e) limitation on military service; f) restriction of freedom; g) the maintenance of the guardhouse; h) the deprivation of liberty; i) death penalty. Additional punishment. a) the deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class and state awards; b) confiscation of property. Basics for excluding criminal liability: 1. Active repentance of person has committed a crime; 2. Reconciliation of the offender with the victim; 3. Changes in the circumstances; 4. Expiration of the limitation period; 5. Amnesty 123

Basics for excluding punishment: 1. conditional release from punishment; 2. replacing the unserved part of the punishment with a milder punishment; 3. exemption from punishment due to illness; 4. postponement of punishment for pregnant women and women with young children; 5.amnesty; 6. clemency. Control questions 1. What can be considered as the branch of criminal law? 2. What is the subject of criminal law? 3. What is the essence of the legality principle? 4. Principle of justice and other principles of criminal law. 5. How crime is defined in Criminal Code? 6. What can be considered as criminal complicity? 7. What circumstances preclude the criminal characteristic of action? Theme 9. Basics of environmental law 1. What is understood by environmental law? 2. Subject and object of environmental law 3. State regulation in the environmental protection area 4. Economic regulatory mechanisms of the environment 5. International cooperation 6. Conception and types of the nature management

1. What is understood by environmental law? Environmental law can be considered as system of legal norms, which regulates social relations, in terms of environment, its conservation and use of natural resources, protection of environmental rights and lawful interests of individuals and legal entities, and etc. In scientific and academic judicial literature public relations, which are regulated with the help of ecological law often called as ecological relations, and ecological relations itself called as ecological law. Ecological law is regarded as a very difficult, complex branch of law, which occurs from the norms of land, water, mining, forestry and other laws. 124

2.Subject and object of ecological law Subject of ecological law can be considered as public relations, which occurs in connection with the use and conservation of environment. As general object of ecological law can be considered the environment itself that consists of component aggregation, such as: a) natural environment, and b) natural and anthropogenic objects; and c) man-made objects. Ecological сode regulates the relations in terms of the protection, restoration and preservation of the environment, the use and reproduction of natural resources in order to implement them in economic and other activities related to the use of natural resources and impact on the environment, within the territory of the Republic of Kazakhstan. Ecological basis of sustainable development of the Republic of Kazakhstan Ecological basis of the sustained development of the Republic of Kazakhstan can be as following: 1) attainment of the state’s objectives in order to ensure favorable environment for the life and health of human being; 2) protection of the environment and preservation of biological diversity; 3) ensuring and realization of the Republic of Kazakhstani rights in order to develop own natural resources and assertion of the national interests in the issues of natural resources use and its impact on the environment; 4) fair satisfaction of the present and future generation’s needs and desires; 5) development of stable models in terms of production and consumption; 6) compliance of ecological regulation with conditions of social and economic development, taking into account state of the environment; 7) respect of each person’s right to get available ecological information and comprehensive participation of the public in the resolution of environment protection and sustained development issues; 8) providing of taken measures publicity in the environmental protection area; 9) global partnership in order to preserve, protect and restore the healthy condition and integrity of the Earth’s ecosystem; 125

10) assistance to the development of international law, that relates to the responsibility for the environmental damage; 11) restraint of transition and transfer prevention to other states in any types of activities and substances, which inflict serious damage to the environment or are considered as harmful for the health of people, and also taking measures of precautions in the cases where there exists the threat of serious or inevitable damage to the environment. Basic Principles of Ecological Legislation of the Republic of Kazakhstan Basic principles of the ecological legislation of the Republic of Kazakhstan can be as following: 1) sustained development provision of the Republic of Kazakhstan; 2) ecological safety provision; 3) ecosystem approach in the regulation of ecological relations; 4) state regulation in the environmental protection area and state management in the natural resource use area; 5) duty of preventive measures for avoidance of the environmental pollution and infliction of damage in any forms; 6) inevitable responsibility for violation of the ecological legislation of the Republic of Kazakhstan; 7) duty of damage compensation, inflicted on the environment; 8) payment and permitting procedure of impacts on the environment; 9) application of the most ecologically clean and resource-saving technologies in the use of natural resources and impacts on the environment; 10) interaction, coordination and publicity of the governmental bodies activity in order to protect the environment; 11) encouragement of natural resource users to prevent, reduce, and liquidate the contamination of the environment and waste minimization; 12) availability of ecological information; 13) providing of national interests in the use of natural resources and its impacts on the environment; 14) harmonization of the ecological legislation of the Republic of Kazakhstan with the principles and rules of international law; 15) presumption of ecological hazard in the economic and other activity, and also obligatory assessment of the impacts on the 126

environment and health of population in making decisions about its actualization. Basic provisions of state regulation in the environmental protection area and state management in the natural resources use area 3. State regulation in the environmental protection area. It includes: 1) licensing of activity in the environmental protection area; 2) ecological regulation; 3) technical regulation in the environmental protection area; 4) state ecological expertize; 5) issuance of ecological permits; 6) state ecological control; 7) economic regulation system of the environmental protection, encouragement in order to implement the best ecologically clean technologies, funding system of environmental measures; 8) quotation of greenhouse gas emissions; 9) inventory of greenhouse gases; 10) establishment of market mechanisms to reduce emissions and absorption of greenhouse gases; 11) system of actual emissions monitoring and absorption of greenhouse gases; 12) state ecological monitoring; 13) state registration of natural resource users, sources and environmental pollution areas; 14) ecological education and enlightenment. State management in the area of natural resources use. State management in the area of natural resources use includes: 1) state planning in the area of natural resources use; 2) state control over the protection, use, and recovery of natural resources; 3) issuance of licenses, permits, and execution of agreements (contracts), in order to have rights to use natural resources; 4) organization of restoration and recovery of natural resources, also implementation of resource-saving technologies; 5) maintenance of monitoring and natural resource cadastres; 6) establishment of limits and allocation of quotas for the natural resource use 7) management of state legal entities that carry out the use, restoration, and recovery of natural resources; 8) organization of natural resource protection. 127

Ecological standardization. Purpose of ecological standardization: 1. Purpose of ecological standardization is the regulation of environment quality and establishment of allowable impact on it, which provides the ecological safety, preservation of ecological systems and biological diversity. 2. The rationing of environment quality, emissions and areas of natural resource use and protection established in the process of ecological standardization. Assessment of impacts on the environment. Assessment of impacts on the environment ‒ this is a procedure, which can give the evaluation of economic and other activity’s possible consequences for the environment and health of people, also measures for the prevention of unfavorable consequences (destruction, degradation, damage, and depletion of natural ecosystems and resources) and environmental enhancement as well as in the developing process, taking into account requirements of ecological legislation of the Republic of Kazakhstan. Ecological expertise. Types of ecological expertizes: State and public ecological expertize are implemented in the Republic of Kazakhstan. Purpose of ecological expertise. Ecological expertize is carried out for the purposes of: 1) determination and restriction of possible negative consequences in order to realize the planned managerial, economic, investment, normative, and other activities on the environment and health of population; 2) observance of economic development and environmental protection of interests, also balance between these interests, more over prevention of damage to another entities in the nature management process. Objects of state ecological expertise. The compulsory state ecological expertize includes: 1) project documentations of planned activities that have the impact on environment, with its accompanying materials of environmental impact assessment; 2) projects of state, regional and sectorial programs with their accompanying materials of environmental impact assessment; 3) project standards of emission to the environment 128

4) project standards of the Republic of Kazakhstani legal acts, regulatory and technical, instructional and methodological documents, which implementations may be resulted in negative impact on the environment; 5) project contracts for the implementation of subsoil operations; 6) projects of scientific, technical and economic justification in order to establish and expand state nature preserves, abolition of state nature reserves, state protected areas of national significance and their decrease in the territory; 7) biological study on the extraction and use of flora and fauna resources; 8) general plan of building projects (development) as cities and territories, including the territories of special economic zones and modes of business doing; 9) materials of territory observance, which can prove that these territories related to zones of ecological disasters or environmental emergency situations; 10) projects of economic and other activity, which may affect the environment of adjacent states or for which implementation it is necessary to use natural objects in common with the adjacent states, or those ones which may affect the interests of the adjacent states, prime example can be “Baikonur” complex, as it is defined by international treaties of the Republic of Kazakhstan; 11) documentations on the use of technologies, machinery equipment, apart from vehicles and equipment, which transferred (imported) to the Republic of Kazakhstan Public ecological expertise. Public ecological expertize – this is a type of activity, carried out voluntarily by expert commissions, which are established by public associations. Results of public ecological expertise. The results of public ecological expertize are formulated in the form of conclusion, which can be considered as the recommendation. Ecological permissions. Types of ecological permissions. In the Republic of Kazakhstan users of natural resources have following ecological permissions as: 1) permits to pollute the environment (emissions); 2) integrated ecological permits. 129

Implementation of environmental emissions is prohibited without ecological permission from all stationary sources. Emissions of greenhouse gases are not the subjects of ecological permits, except for emissions, in the manner prescribed by the Tax code of the Republic of Kazakhstan, as pollutants. Ecological audit. The ecological audit is carried out by way of analyzing the reports about audited entities, and their impact on environment. Ecological control. The governmental control of environmental protection, security, recovery and use of natural resources. Purposes and types of the governmental control : Purposes of the governmental control, in terms of the environmental protection, security, recovery and use of natural resources, include ensuring the ecological safety, economy of natural and energy resources, stable use of biological resources, increasing competitiveness of the national products. The governmental control of the environmental protection, security, recovery and use of natural resources, also includes following types as: 1) ecological control; 2) control of land use and protection; 3) control of water resources use and protection; 4) control of subsoil observance and use; 5) control of the Republic of Kazakhstani forestry legislation; 6) control of fauna protection, its recovery and use; 7) control of specially protected nature reserves. Ecological monitoring and cadastres. Ecological monitoring of the government (monitoring of the environment and natural resources) ‒ is an integrated system of environmental observation, natural resources, which are aimed at the assessment, prediction and control of conditional changes under the influence of natural and anthropogenic factors. Governmental cadastres of natural resources. Governmental unified system of natural resource cadastres: 1. Governmental unified system of natural resource cadastres of the Republic of Kazakhstan (hence – Unified system of cadastres) was created and maintained as an inter-sectorial information system, that comprises all types of governmental natural resource cadastres 130

of the Republic of Kazakhstan for the purpose of ensuring the unified national integrated accounting and assessment of natural and economic potential of the Republic of Kazakhstan. 2. The state natural resource cadastres represent a systematized code of information on quantitative and qualitative parameters of natural resources in the manner prescribed by Ecological code and other legislative acts of the Republic of Kazakhstan. 3. The objects of unified cadastre system have environmental components as following: land, water, forest, soil, subsoil, flora, fauna and their interaction with each other. Ecological information. Ecological information includes the following data and statements: 1) the environmental state and its objects; 2) influence factors to the environment, in particular its contamination; 3) software, administrative and other measures, that affect or may affect on the environment; 4) ecological standards and requirements in terms of economic and other activities; 5) planned and implemented measures in compliance with the environmental protection and its funding; 6) activities, that affect or may affect on the environment, the procedure of making decisions and results of ecological inspections, in particular calculations (assessments), analysis and other information related to the environment; 7) the impact of the environmental state on the health, safety and living conditions of population, as well as on buildings and constructions. International cooperation of the Republic of Kazakhstan in the sphere of the environmental and nature management protection 4. Economic regulatory mechanisms of the environment and nature management protection Types of economic regulatory mechanisms for the environment and nature management protection can be recognized as following: 1) planning and funding of events associated with the environmental protection; 131

2) payments for emissions to the environment; 3) payments for use of certain natural resource types; 4) economic incitement for the environmental protection; 5) management of market mechanisms in terms of emissions to the environment; 6) market mechanisms in order to reduce emissions and absorption of greenhouse gases; 7) ecological insurance; 8) economic assessment of the environmental damage. 5. Priorities and levels of International Cooperation Participation of the Republic of Kazakhstan in international cooperation in the sphere of the environmental and nature management protection is based on the following priorities: 1) the environmental protection, it means favorable one for human lives and health; 2) achievement of sustainable development; 3) security of the Republic of Kazakhstani interests in the sphere of the environmental and nature management protection; 4) prevention, reduction and control of trans-boundary contamination; 5) development and support of free international trade and investments on the basis of compliance with the ecological standards and requirements; 6) rendering of international assistance in the case of emergency ecological situations; 7) application of standards and principals of the international law for solving trans-boundary and regional ecological problems; 8) participation in international initiatives in the sphere of the environmental protection and sustainable development. Objects of environmental protection. These objects should be protected from destruction, degradation, damage, dirt and other harmful effects: 1. land 2. subsoil 3. surface and underground waters 4. atmospheric air 5. forests and other greeneries 6. fauna 7. genetic resources of living organisms 132

8. natural ecological systems 9. climate 10.ozone layer of the Earth The objects of significant protection are natural territories and objects of the state natural reserve fund. 6. Conception and types of the nature management The nature management can be recognized as the use of natural resources and/or impact on the environment of people in a daily life, also in economic and other activities of physical and legal entities. The nature management subdivided into general and special. General nature management is permanent and carried out for free charge, in order to satisfy the vital demands of the population and with the exception of natural resources use. Special nature management is the activity of physical and/or legal entity, which carries out the use of natural resources on a chargeable basis and/or emissions to the environment, in the manner prescribed by the Code and other laws of the Republic of Kazakhstan. Types of nature management includes: 1) land use; 2) water use; 3) forest use; 4) subsoil use; 5) use of fauna; 6) use of flora; 7) emissions to the environment; 8) and other types of the nature management established by the laws of the Republic of Kazakhstan. Users of Natural Resource. 1. Physical and legal entities, permanently or temporarily staying in the territory of the Republic of Kazakhstan can be users of natural resource. 2. Users of natural resources may be: 1) permanent (it means that rights to the use of natural resources is unlimited) and temporary (it means that rights to the use of natural resources is limited and have fixed term); 2) primary (it means that rights to the use of natural resources are obtained from the state or from other primary users of the natural resources in the procedure of rights alienation or universal legal 133

succession) and secondary (it means that rights of natural resources temporary use are obtained on the basis of contract from the primary user of natural resources that retains its status). Basis of special nature management right’s emergence and actualization terms Special management rights emerge on the basis of: 1) licenses and/or permits for the use and withdrawal of natural resources and implementation of certain activity types in the environmental protection area; 2) decisions of the Republic of Kazakhstan’s government or local executive bodies about assignation of natural resources into the nature management in the manner prescribed by the laws of the Republic of Kazakhstan; 3) agreements (contracts) of the nature management, in the manner prescribed by the legislative acts of the Republic of Kazakhstan. Rights and obligations of physical entities in the environmental protection area. Physical entities have following rights for: 1) favorable environment for their lives and health; 2) accomplishment of the protection measures and environmental enhancement; 3) establishment of public associations and environmental protection funds; 4) involvement in the process of making decisions by state bodies about issues related to the environment, in the manner prescribed by the legislation of the Republic of Kazakhstan; 5) participation in meetings, rallies, pickets, parades, demonstrations, referendums in the environmental protection area, in accordance with the legislation of the Republic of Kazakhstan; 6) approach to state bodies with letters, complaints, applications and proposals about the environmental protection issues and requirements for their consideration; 7) perception of the whole, complete, and reliable information about ecology from state bodies and organizations; 8) participation in the discussion of normative legal act projects about the environmental protection issues on the stage of their preparation and to submit their own comments for implementers; 134

9) taking part in the process of plan and program preparations, related to the environment; 10) submission of proposals about the implementation of public ecological expertize and participate in it; 11) requisition to cancel the administrative or judicial decisions about location, construction, reconstruction, and commissioning of enterprises, structures, and other ecologically hazardous objects, and also to restrict and terminate the economic and other activities of physical and legal entities, which can have an adverse impact on the environment and health of people; 12) filing to the court claims about the damage compensation, which have inflicted on their health and property due to the breach (violation) of the ecological legislation of the Republic of Kazakhstan. Physical entities are obliged to: 1) preserve the environment and carefully treat the natural resources; 2) facilitate the measure implementations, which are aimed at the rational use of natural resources, protection of the environment, and ensuring ecological security; 3) prevent the threats to ecological security which may arise through their faults; 4) conduct their activities in accordance with the ecological legislation of the Republic of Kazakhstan. Physical entities have other rights and duties in the manner prescribed by the laws of the Republic of Kazakhstan. The liability for ecological offences and resolution of ecological disputes Types of ecological offences Types of ecological offences can be divided as following: 1) violations of ecological legislation of the Republic of Kazakhstan that entail property liability; 2) administrative offences in the sphere of environmental protection and nature management; 3) ecological crimes. The liability for violation of ecological legislation of the Republic of Kazakhstan Violation of ecological legislation of the Republic of Kazakhstan entails the liability in the manner prescribed by the laws of the Republic of Kazakhstan. 135

favorable environment ‒ the environment, in which state provides with ecological safety and the protection of population health, preservation of bio-diversity, prevention of pollution, sustained functioning of ecological systems, reproduction and rational use of natural resources; environment ‒ aggregation of natural and artificial objects, including atmospheric air, ozone layer of the Earth, surface and underground waters, lands, subsoil, fauna and flora, and also the climate in their interaction with each other environmental damage ‒ the pollution of environment or withdrawal of natural resources above the established standards, that had caused or causing degradation and depletion of natural resources or destruction of living organisms; emissions to the environment – emissions and discharges of pollutants, disposal of production wastes and consumptions to the environment, harmful physical impacts, placement and storage of sulfur to the environment in an open form; environmental pollution ‒ inflow of pollutants to the environment, radioactive materials, wastes of production and consumption, and also impact on the environment through noise, vibrations, magnetic fields, and other harmful physical impacts; ecological system (ecosystem) – interrelated aggregate of organisms and abiotic environment of their habitant, interacting as a single functional unit; ecological hazard ‒ state, characterized by the existence or probability of destruction, change of the environmental state under the influence of anthropogenic and natural impacts, also stemming from disasters and catastrophes, including natural calamities, threatening the vitally important interests of the individuals and society as well; ecological safety – protection conditions of vitally important interests and rights of the individuals, also society and state from threats arising as a result of anthropogenic and natural impacts on the environment; ecological management ‒ administration of the environmental protection which includes in itself organizational structure, planning, responsibility, methods, procedures, processes, and resources for the development, implementation, performance, analysis, and maintenance of an enterprise’s ecological policy;

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Glossary Favorable environment – благоприятная окружающая среда; Aggregation – совокупность; Ozone layer of the Earth – озоновый слой Земли; Subsoil – недра; Withdrawal – изъятие; Degradation – деградация; Depletion – истощение; Destruction – гибель, уничтожение; Emissions – выбросы; Discharges – сбросы; Aggregate of organisms – совокупность организмов; Ecological hazard – экологическая опасность; State – 1. государство 2. состояние Stemming from – обусловленный, проистекающие из, брать начало; Assertion – отстаивание (национальных интересов); Stable models – устойчивые модели; Publicity –гласность; Restraint – сдерживание; Transition – перенос; Preventive measures – превентивные меры (меры предосторожности) Infliction – нанесение, причинение; Resource-saving technologies – ресурсосберегающие технологий; Contamination – загрязнение; Presumption – презумпция, предположение; Assessment – оценка; Greenhouse gases – парниковые газы; Allocation – распределение; Nature management – природопользование; Alienation – отчуждение; Universal legal succession – универсальное правопреемство; Assignation – предоставление; Local self-government – местное самоуправление; Accomplishment – осуществлять; 137

Environmental enhancement – оздоровление окружающей среды; Rallies – митинги; Pickets – пикеты; Parades – шествия; Approach – обращаться; Adverse impact – отрицательное воздействие; Nature reserves – природные заказники; Adjacent states – сопредельные государства; Economic incitement – экономическое стимулирование; Soil – почва; Ecological inspections – экологические проверки; Sustainable development – устойчивое развитие; Trans-boundary contamination – трансграничные загрязнения; Ecological offences – экологические правонарушения; Ecological disputes – экологические споры; Entail – влечь, вызывать. Theme 10. Basics of land Law 1. Concept and the subject of land law 2. Basic principles of land law 3. Ownership of the land: grounds of beggining 4. Land use right 5. Land protection, state control, land management, monitoring and land cadaster Control questions relating to 10 Scheme subject to 10 Annex 10 to the topic

1. Concept and subject of land law Land law can be considered as one of the Kazakhstani law branches. Subject of land law’s legal regulation can be considered as land relations. Land Fund of the Republic of Kazakhstan in compliance with the purpose divided into the following categories: 1) agricultural land; 2) land settlements (cities, towns and villages); 3) land for industry, transport, communications, needs for space 138

activities, defense and national security, also other non-agricultural purposes; 4) specially protected nature reserves, also lands with health care, recreational, historical and cultural purposes; 5) forest lands; 6) ground water resources; 7) reserve lands. The territory of the Republic of Kazakhstan, in terms of natural conditions, divided into the following areas: 1) forest-steppe; 2) steppe; 3) dry-steppe; 4) semi-desert; 5) desert; 6) foothill-desert-steppe; 7) subtropical desert; 8) foothill-subtropical desert; 9) central asian mountain; 10) south siberian mountains. Land ownership. Land in the Republic of Kazakhstan is in the public domain. Land can also be privately owned on terms, conditions and with limits established by the Land Code. 2. Basic principles of land law The land legislation of the Republic of Kazakhstan is based on the following principles: 1) integrity, inviolability and inalienability of the Republic of Kazakhstan; 2) conservation of land as a natural resource, the life basis and activities of the Republic of Kazakhstani population; 3) the protection and rational use of land; 4) environmental security; 5) proper use of land; 6) the priority of agricultural lands; 7) providing information on the status of land and its accessibility; 8) public support for the use and protection of land; 9) prevention of damage to land or remedy its consequences; 10) charges for the use of land. 139

Payments for land. 1. Land, which is owned, in permanent use or primary gratuitous temporary use, subjected to land tax. 2. For lands granted by the state in temporary paid land-use (lease), the fee for the use of land will be taken. land ‒ territorial space, which is established within the sovereignty of the Republic of Kazakhstan, natural resource, all common means of production and the territorial basis of any employment process; objects of land relations ‒ all land within the territory of the Republic of Kazakhstan and particular lands, regardless of the fact that what is located there, and from the legal basis point of view, for their assignment to individual subjects, as well as rights to land plots and land shares; legal relations of land‒ legal relations for use and protection of land, related to land resource management, assignment of land plots to individual subjects, and execution of ownership right and other rights to the land; subjects of land relations ‒ physical and legal entities, also states, which are involved in the legal land relations and thus have rights and bearing duties in these relations; land-use rights ‒ the right of individuals to own and use the land plot, which is state-owned property, unlimited (permanent land use) or within a certain period (temporary land use) at a charge and (or) without return basis; land resources – the land, which is in use or can be used in the process of economic and other activities in order to satisfy the physical, cultural and other necessities (needs) of society; land plot‒ dedicated to the closed borders of land, which is fixed in the manner prescribed by the Land code for the subjects of land relations; private ownership rights of land plot ‒ the right of citizens and private legal entities to own, use and dispose of their land plot on terms, conditions and limits established by the Land code; 3. Ownership of the land: grounds of beggining Types of land ownership. In the Republic of Kazakhstan public and private ownership of land has equal recognition and protection. 140

Subjects of land ownership: subject of rights to the state-owned property of land in the territory of the republic – this is the Republic of Kazakhstan; subject of rights to the private ownership of land plots on terms, conditions and limits established by the Land code, ‒ they are citizens and private legal entities. Comprising of property rights: 1. ownership rights 2. use 3. regulations. The emergence of ownership on land plot. Ownership of the land occurs through: 1) provision of ownership; 2) transfer of ownership; 3) devolution of ownership by way of universal legal succession (inheritance, the reorganization of legal entities). Ownership of the land occurs on the basis of: 1) governmental bodies acts; 2) civil transactions; 3) other basis stipulated by the legislation of the Republic of Kazakhstan. Land ownership of citizens and legal entities In the private ownership of the Republic of Kazakhstani citizens may be land plots for: 1. peasant or farm households 2. private subsidiary households 3. afforestation 4. gardening 5. construction of house and suburb house individually 6. and lands, which are given for construction or already built-up industrial and non-industrial, also residential constructions (buildings) and their complexes, including lands designated for maintenance of constructions (buildings and structures) in compliance with their intended use. In the private ownership of the Republic of Kazakhstani nonstate legal entities may be land plots allocated (provided) for: 1. farm-market agricultural production In the private ownership of foreign nationals, stateless person and 141

foreign legal entities (non-state) may be land for the following purposes: construction or already built-up industrial and non-industrial, also residential constructions (buildings) and their complexes, including lands designated for maintenance of constructions (buildings and structures) in compliance with their intended use. Public (governmental) ownership of land. The public ownership includes the land plots, which are allocated to public authorities, public organizations and institutions that are used for: 1. defense and national security 2. specially protected nature reserves with health care, recreational, historical, and cultural intentions 3. forestry and water resources 4. public use in the settlements 5. stock, including a special land fund, rangeland and pasture in the villages and rural settlements as well as distant pastures 6. also, other land plots which are not transferred to private ownership Cannot be privately owned land plots occupied by: 1. for defense and national security; 2. state-owned defense industry; 3. engineering facilities, communications, erected for the protection and preservation of the Republic of Kazakhstan’s State Border; 4. customs affair purposes; 5. nature reserves; 6. forest land; 7. water resources; 8. mainline rail networks and roads for public use; 9. territories in public use of settlements 4. Land use right Mode of land use rights. Land use right is the same as property law. The norms of ownership rights are adaptable for land use rights, as far as it is not inconsistent with the property law. Types of land use rights Land-use right may be temporary or permanent, alienable or inalienable, acquired at a charge or gratuitously. The subjects of land use rights 142

Land users are divided into: 1) public and private; 2) national and foreign; 3) physical and legal people; 4) permanent or temporary; 5) primary and secondary. The emergence of land use rights 1. Land-use right occurs by: 1) provision of land use rights; 2) transfer of land use rights; 3) devolution of land use rights by way of universal legal succession (inheritance, the reorganization of legal entities). 2. Provision, transfer and devolution of land use rights must be taken into account with the target purpose of land plots. 3. Land use right arises on the basis of: 1) governmental bodies acts; 2) civil transactions; 3) other basis stipulated by the legislation of the Republic of Kazakhstan Divisible and indivisible land plots 1. Land plots may be divisible and indivisible. Divisible land plots are lands without changing their target purpose and without violating the fire, sanitary, environmental, constructional and other mandatory rules and regulations, also can be divided into parts, each of them forms an independent land plot after the partition, and otherwise it is indivisible. 2. Indivisibility of the land plot is reflected in the identification document. Rights and duties of land owners and land users to the land plots utilization 1) to independently manage the land, using it for purposes occurring from the land plots use; 2) for the agricultural crops and plants cultivation, also for produced farm and other products; 3) for use in a prescribed manner without intention of subsequent transactions for needs of their farms, in terms of available sand, clay, gravel and other common minerals in the land plot, also peat, planting, surface and ground water, as well as the operation of other land benefits; 143

4) to recover damages in full expropriation of the land for public purposes; 5) construction of residential, industrial, household and other buildings (structures) in compliance with the target purpose of land plot, taking into account the land zoning; 6) irrigation, drainage and other land reclamation works, construction of ponds and other water bodies in compliance with established constructional, environmental, sanitary and other special requirements. 7) transfer of ownership rights, rights of temporary long – term land use at a charge (rent) as a contribution to the charter capital of a business partnership, in return for shares of the company or as a contribution to cooperative production. Duties of land owners and land users, in terms of the land plots utilization 1) use of the land in compliance with its target purpose, and for the temporary use, in accordance with the land provision act or lease agreement (contract of temporary land use for free); 2) apply the production technologies, appropriate sanitary and environmental requirements, to prevent the human health and environment harm, the sanitary-epidemiological deterioration, radiological and environmental conditions as a result of their ongoing economic activity and others; 3) implement the measures in order to protect the land; 4) timely payment of the land taxes and fees for land use; 5) comply with the order of wildlife use, forest, water and other natural resources, ensure the protection of historical and cultural heritage and other objects protected by the state, which are located on land plot, according to the laws of the Republic of Kazakhstan; 6) for the implementation of economic activity and others on the land plot, comply with constructional, environmental, sanitary and other special requirements (norms, rules, regulations); 7) timely submit to the authorities established by the land legislation of the Republic of Kazakhstan about current state information and use of land; 8) do not violate the rights of other land owners and users; 9) prevent pollution, littering, degradation and deterioration of soil fertility, as well as the removal of topsoil for sale, or transfer it to other individuals, except situations when such removal is necessary to prevent the irretrievable loss of topsoil; 144

10) ensure the provision of easements; 11) inform the local executive bodies about the identified waste production and consumption, which is not the same as their usual one. Termination of ownership rights, land use rights and other proprietary rights to the land Private ownership of land plots or land-use right is terminated in the following cases: 1) the alienation of the land plot by its land owner or land use rights by land owner to others; 2) the refusal of the land owner to have the proprietary rights for land or land user from land-use rights; 3) the loss of land ownership or land use rights, in the manner prescribed by legislative acts of the Republic of Kazakhstan. Termination of land plot and land use right from land owner, without their consent is not permitted, unless: 1) the foreclosure on the land or land-use right for the obligations of the land owner or land user; 2) the expropriation of land for public purposes and needs; 3) the land plot confiscation from the land owner or land user, which is not used for the intended purpose or used in violation of the Republic of Kazakhstan laws; 4) the expropriation of land plot from the land owner or land user, in case if it is affected by radioactive contamination, with the provision of equivalent land plot; 5) seizures. In addition, land use right can be terminated for the following reasons: 1) the expiry of the period for which land was provisioned or granted; 2) the early termination of land lease contract or a contract of temporary land grant, except in cases where land is in the mortgage; 3) termination of employment relations, in connection with it the land user has been given the official allotment. Exceptional cases for the land plots expropriation of public use can be: 1) international obligations, which occurs from international treaties ratified by the Republic of Kazakhstan; 145

2) provision of land for defense and national security purposes, and specially protected nature reserves, which have health care, recreational, historical and cultural intentions, as well as the establishment and functioning of special economic zones; 3) the discovery and development of mineral deposits; 4) construction (reconstruction) of roads and railways, airports, aerodromes, air navigation facilities and aero technical centers, trains, bridges, subways, tunnels, facilities of energy system and power lines, communication lines, also facilities, which can provide space activities, trunk pipelines, engineering and communicational networks, the implementation of concession projects, moreover public use facilities in settlements; Easements. Basis of easement essence Limited right to target use of someone else's land plot (easement) may occur, in following cases: 1) directly from the normative legal act; 2) on basis of concerned person’s agreement with the land owner or land user; 3) on basis of the local executive body’s act; 4) on basis of a court decision; 5) in other cases, stipulated by legislation of the Republic of Kazakhstan. 5. Land protection, state control, land management, monitoring and land cadaster Land protection Aims and objectives of land protection Land protection includes: 1. legal 2. organizational 3. economic 4. technological and other measures aimed at: protecting the land as part of the environment rational use of land prevention of land’s unnecessary removal from agricultural and forestry conveyance restoration and improvement of soil fertility. 146

The aims of land protection are: 1) to prevent the degradation and disturbance of land, other adverse consequences of economic activity by encouraging environmentally secure production technologies and agroforestry, irrigation and other activities; 2) to ensure the improvement and rehabilitation of land, which is degraded or violated; 3) to implement the environmental standards in the practice of optimal land use. Glossary Land Fund – земельный фонд; Agricultural land – земли сельскохозяйственного назначения; Land settlements – земли населенных пунктов; Defense and national security – оборона и национальная безопасность; Reserve lands – земли запаса; Forest-steppe – лесостепная; Dry-steppe – сухостепная; Semi-desert – полупустынная; Foothill-desert-steppe – предгорно-пустынно-степная; Subtropical desert – субтропическая пустынная; Foothill-subtropical desert – субтропическо-предгорно-пустынная; Public domain – государственная собственность; Integrity – целостность; Inviolability – неприкосновенность; Inalienability – не отчуждаемость; Conservation of land – сохранение земли; Remedy – устранение; Gratuitous – безвозмездное; Lease – аренда; Fee – плата; Sovereignty – суверенитет; Assignment – закрепленность; Land plots – земельные участки; Closed borders of land – замкнутые границы земли; 147

Comprise – составлять; Emergence – возникновение; Devolution – переход; Peasant households – крестьянское хозяйство; Farm households – фермерское хозяйство; Private subsidiary households – личное подсобное хозяйство; Afforestation – лесоразведение; Suburb house – дачное строительство; Intended use – целевое использование; Rangeland – пастбищные угодья; Pasture – сенокосные угодья; Erected for – возведенные для; Customs affair – таможенное дело; Mainline rail networks and roads – магистральные железнодорожные сети и автомобильные дороги; Inconsistent with – противоречащий; Target purpose – целевое назначение; Reflect – отражаться; Agricultural crops – посевы сельскохозяйственных культур; Plants cultivation – посадки сельскохозяйственных культур; Subsequent transactions – последующее совершение сделок; Peat – торф; Expropriation – принудительное отчуждение; Irrigation – орошение; Drainage – осушение; Land reclamation works – мелиоративные работы; Charter capital – уставный капитал; Deterioration – ухудшение; Wildlife use – пользование животным миром; Soil fertility – плодородие почв; Irretrievable – безвозвратное; Topsoil – плодородная почва; Easements – сервитуты; Alienation – отчуждение; Seizures (confiscation) – конфискации; Mortgage – залог; Official allotment – служебный земельный надел; Exceptional cases – исключительные случаи; 148

International treaties – международные договора; Trunk pipelines – магистральные трубопроводы; Concession project – концессионные проекты; Conveyance – оборот. Control questions 1. What can be considered as land law? 2. What is the subject of land law’s regulation? 3. What are the principles of land law? 4. Sources of land law and their types. 5. What is the basis of land ownership rights? 6. Who can be the subject of land relations? 7. What is the basis for termination of property rights? 8. What categories of land exist in the Republic of Kazakhstan? Theme 11. Basics of Tax Law 1. Concept of tax law 2. Tax policy 3. Tax administration officials 4. Tax control Control questions relating to 11 Scheme subject to 11 Annex 11 to the topic

1. Concept of tax law Tax legislation regulates power relations on the establishment, administration, as well as calculation and payment of taxes and other obligatory payments to the budget, also relations between state and taxpayer (tax agent) in compliance with the tax liability execution. Principles of tax assessment in the Republic of Kazakhstan 1. Principle of compulsory tax assessment Taxpayer is obliged to execute tax liability, and tax agent is obliged to calculate, withhold and allocate taxes in compliance with the tax legislation of the Republic of Kazakhstan to the full extent and on time. 2. Principle of tax assessment determinancy Taxes and other obligatory payments to the budget of the Republic of Kazakhstan have to be determined. Tax assessment determinancy means ‒ all basis and orders of emergence, execution and termination of taxpayer 149

obligations, as well as duties of tax agent, who calculate, withhold and allocate taxes, are established by tax legislation of the Republic of Kazakhstan 3. Principle of tax assessment equity Tax assessment in the Republic of Kazakhstan is universal and compulsory. It is prohibited to provide individuals with tax exemption. 4. Principle of tax system unity Tax system of the Republic of Kazakhstan is unified throughout territory of the Republic of Kazakhstan for all taxpayers (tax agents). 5. Principle of tax legislation publicity of the Republic of Kazakhstan Normative legal acts regulating tax assessment must be announced in the official publications. 2. Tax policy – this is a set of measures in order to establish new and cancel existing taxes and other obligatory payments to the budget, change in tax rates, objects of tax assessment and objects, which are related to tax assessment, tax assessment base for taxes and other obligatory payments to the budget in order to ensure the financial needs of state and keep balance between the economic interests of state and taxpayers. Other obligatory payments – obligatory fiscal charges into the budget can be in a form of fees, levies, duties, except the customs fees; Taxes – statutorily prescribed by state, in terms of unilaterally obligatory payments to the budget, which are made in certain amounts, also non-refundable and grant non-repayable (gratuitous); Taxpayer – the person and (or) a structural unit of a legal entity, hence that is a payer of taxes and other obligatory payments to the budget; Rights and obligations of the taxpayer and tax agent. Representation in tax relations Rights of taxpayer Taxpayer has the rights to: 1) receive from the tax administration service information on current taxes and other obligatory payments to the budget; 2) represent their interests in relations, which are regulated by laws of the Republic of Kazakhstan; 3) obtain the results of tax control; 4) receive free standards for public services, established forms of 150

tax declarations and (or) the software, which is required for the submission of tax reports and declarations in electronic format from tax administration, hence all of them should be approved by legislation of the Republic of Kazakhstan; 5) receive upon the application from tax administration a copy on earlier tax reports; Obligations of taxpayer Taxpayer must: 1) implement tax liability on time and to the full extent; 2) comply with legitimate demands of tax administration officials in order to eliminate violations of tax legislation of the Republic of Kazakhstan, as well as not to interfere with legitimate activities in terms of their official duties execution; 3) in compliance with regulations, taxpayers must allow tax administration officials to inspect the property, which is the subject of tax assessment, and (or) bound up with tax assessment; 4) give information and documents, in the manner prescribed by the legislation of the Republic of Kazakhstan on transfer pricing ; 5) use cash registers and comply with their application procedure; 3. Tax administration officials. Purpose and structure of tax administration officials Purpose of tax administration officials can be as following: 1) to ensure the completeness and timeliness of tax and other obligatory payments receipt to the budget; 2) to ensure the completeness and timeliness of calculation, retention and transfer of mandatory pension contributions to pension funds; 3) to be involved in tax policy implementation of the Republic of Kazakhstan; 4) to ensure the economic security of the Republic of Kazakhstan, within their competence; 5) to ensure tax legislation compliance of the Republic of Kazakhstan. Rights of tax administration officials Tax administration officials have rights to: 1) develop and approve legal acts, within their competence; 2) execute tax control; 3) implement international cooperation on tax assessment matters; 4) require from taxpayer (tax agent, operator) to provide data software access, which is intended to automate accounting and tax audit; 151

5) require from taxpayer (tax agent, operator) to represent documents, which can confirm the calculation correctness and timely payment (retention and transfer) of taxes and other obligatory payments to the budget, completeness and timeliness of calculation, retention and transfer of obligatory pension contributions, also calculation and payment of social contributions. Obligations of tax administration officials Tax administration officials are obliged to: 1) respect the rights of taxpayer (tax agent); 2) protect the interests of state; 3) execute tax control over the implementation of tax obligations; 4) keep records of taxpayers, objects of tax assessment and (or) objects related to tax assessment; 5) clarify and comment on emergence, implementation and termination of tax liability, within their competence. Tax liability. Tax liabilities are recognized as taxpayer obligations to the state, which have emerged in compliance with tax legislation of the Republic of Kazakhstan, hence taxpayer is obliged to register on tax administration, determine the objects of tax assessment and (or) objects related to tax assessment, calculate and pay taxes, also other obligatory payments to the budget. Object of tax assessment. Object of tax assessment can be property and actions, which can be concerned as the basis of taxpayer’s obligation. Tax base Tax base is the cost, physical, or other characteristics of tax assessment object, which can be defined through the amount of taxes and other obligatory payments to the budget. 4. Types of taxes and other obligatory payments to the budget In the Republic of Kazakhstan is in force: 1) taxes: corporate income tax; individual income tax; value-added tax; excise taxes; rent tax on exports; special charges and taxes of subsoil users; 152

social tax; vehicle tax; land tax; property tax; gambling tax; flat tax; single land tax; 2) other obligatory payments to the budget: state fees; fees: registration fees; toll road vehicles in the territory of the Republic of Kazakhstan; fees from public auctions; license fee for the right to be engaged in certain types of activities; fee for use permit of the radio spectrum and television broadcasters; payment: for the use of land; for the use of surface water resources; for emissions to the environment; for the use of wildlife; for the forest use; for the use of protected areas; for the use of the radio spectrum; for the provision of long-distance and (or) international telephone and mobile communication; for the use of navigable waterways; for outdoor (visual) advertisement installation. Corporate income tax Taxpayers Corporate income taxpayers can be legal entities, who are residents of the Republic of Kazakhstan, as well as non-resident legal entities, doing business activities in the Republic of Kazakhstan. Objects of corporate income tax are: 1) taxable income; 2) income, which is taxed from the source of payment; 3) the net income of non-resident legal entity, doing business activities in the Republic of Kazakhstan through a permanent establishment. 153

Individual income tax Taxpayers Payers of individual income tax are physical entities, who have objects of tax assessment. Objects of tax assessment Objects of individual income tax assessment can be revenues of physical entities in the form of: 1) income, which is taxed from the source of payment; 2) income, which is not taxed from the source of payment. Income of an individual is not considered as revenue in the following cases: 1) targeted social assistance, benefits and compensation paid from the budget; 2) compensation for damage, which is caused to life and health of individual; 3) compensation for business trips, including training purposes, upgrading qualifications, or retraining of employees; 4) compensation for material damages, which is adjudged by the court; Value-added tax Taxpayers Payers of value-added tax can be as following: 1) individuals, which made posing for the value-added tax registration in the Republic of Kazakhstan: sole proprietorships; resident legal entities, except for government agencies; nonresidents, doing business activities in the Republic of Kazakhstan through branches and agencies; trustees, executing turnover of goods, works and services realization. 2) individuals, importing goods into the territory of the Republic of Kazakhstan. Objects of tax assessment Objects of value-added tax assessment can be as following: 1) taxable turnover; 2) taxable import.

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Excises Application of excises Excises are taxed on goods, which are manufactured in the territory of the Republic of Kazakhstan and imported into the territory of the Republic of Kazakhstan. Taxpayers Payers of excise can be physical and legal entities, who: 1) produce excise goods in the territory of the Republic of Kazakhstan; 2) import excise goods into the territory of the Republic of Kazakhstan; 3) engaged in wholesale, retail sale of petrol (except for aviation fuel) and diesel fuel in the Republic of Kazakhstan; 4 ) sell excise goods, which are confiscated, ownerless, referred by inheritance to the state and donated to the state property in the Republic of Kazakhstan. List of excise goods Excise goods can be as following: 1) all kinds of spirit; 2) alcoholic products; 4) tobacco; 5) petrol (except for aviation fuel), and diesel fuel; 6) motor vehicles, for the transport of 10 or more people with engine capacity more than 3,000 cubic centimeters, except for minibuses, buses and trolley buses; Rent tax on exports Taxpayers Payers of rent tax on exports are physical and legal entities, who implement the export of: 1) crude oil and gas condensate; 2) coal. Objects of tax assessment Objects of rent tax assessment on export can be the amount of crude oil, gas condensate, and coal. Tax assessment of subsoil users Upon conduct of subsoil operations within its contracts, in the manner prescribed by the legislation of the Republic of Kazakhstan, subsoil companies pay all taxes and other obligatory payments to the budget. 155

Special payments and taxes of subsoil users include: 1) special payments of subsoil users: a) subscription bonus; b) commercial discovery bonus; c) payment, in order to reimburse the historical costs; 2) tax on mining operations; 3) tax on excess profits. Social tax Taxpayers Social taxpayers can be as following: 1) sole proprietorships; 2) private notaries, private judicial executors, lawyers; 3) legal entities, who are residents of the Republic of Kazakhstan; 4) non-resident legal entities, doing business activities in the Republic of Kazakhstan through a permanent establishment; Objects of tax assessment 1) payments, which are made at the expences of grants; 2) state awards, scholarships, which are established by the President of the Republic of Kazakhstan, and the Government of the Republic of Kazakhstan; 3) cash awards, for winning places in sporting events, parades, competitions; 4) compensatory payments, due to the annulment of labor agreement in case of employer termination (physical entity) or employer liquidation (legal entity), downsizing or redundancy, in the amount prescribed by the legislation of the Republic of Kazakhstan; 5) compensatory payments by employer to employees for unused paid annual vacation; 6) obligatory pension contributions of employees to pension funds in accordance with the laws of the Republic of Kazakhstan. Vehicle tax Taxpayers Payers of vehicle tax are physical entitities, who have the objects of tax assessment on ownership rights, and legal entities, who have the objects of tax assessment on ownership rights, economic management or operational control. Objects of tax assessment 156

Objects of tax assessment are transport vehicles, except for trailers, which are subjected to state registration and (or) registered in the Republic of Kazakhstan. Cannot be considered as objects of tax assessment: 1) rigid dump trucks with 40 tons and above; 2) specialized medical vehicles. Land tax For tax assessment purposes, all lands are considered, with regards to their target purpose and appliance to following categories: 1) agricultural land; 2) land settlements; 3) land for industry, transport, communication, defense and other non-agricultural purposes (hereinafter ‒ industrial land); 4) lands of specially protected nature reserves, and lands of healthy, recreational, historical and cultural purposes (hereinafter – lands of specially protected nature reserves); 5) forest lands; 6) ground water resources; 7) reserve lands. Land settlements, in terms of tax assessment purposes are divided into two groups: 1) land settlements, except for the land, which is occupied by housing fund, including buildings and structures in its presence; 2) land, which is occupied by housing fund, including buildings and structures in its presence. Cannot be subjected to tax assessment following categories of land: 1) lands of specially protected nature reserves; 2) forest lands; 3) ground water resources; 4) reserve lands. Taxpayers Land taxpayers are physical and legal entities, who have objects of tax assessment: 1) on the right of ownership; 2) on the right of permanent land use; 3) on the right of primary gratuitous temporary land use. Object of tax assessment 157

Object of tax assessment is the land plot. Cannot be subjected to tax assessment: 1) public land settlements; 2) land plots, which are occupied by the network of state public roads; 3) land plots, which are occupied by objects in preservation; 4) land plots, which are acquired in order to maintain rental homes; Property tax Taxpayers Payers of property tax can be as following: 1) legal entities, who have the object of tax assessment on ownership rights, economic management or operational control in the Republic of Kazakhstan; 2) sole proprietorships, who have the object of tax assessment on ownership rights of the Republic of Kazakhstan; 3) concessionary, who have rights of possession, use the objects of tax assessment, in case if it is the concession object in accordance with the concession agreement. Gambling tax Taxpayers Payers of gambling tax are sole proprietorships and legal entities, who are engaged in service activities as: 1) casino; 2) hall of slot machines; 3) tote (games of chance and betting); 4) bookmaking office. Objects of tax assessment Objects of tax assessment on gambling business, which carry out activities in the field of gambling can be as following: 1) gambling table; 2) game-playing machine; 3) totalizator counter; 4) electronic totalizator counter; 5) bookmaking office counter; 6) electronic bookmaking office counter.

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Glossary Tax legislation – налоговое право; Power relations – властные отношения; Tax liability – налоговое обязательство; Tax assessment – налогооблажения; Tax assessment determinancy – определенность налогооблажения; Tax exemption – не облагаемые налогами; Tax system unity – единство налоговой системы; Tax policy – налоговая политика; Tax assessment base – налоговая база; Fiscal charges – отчисление в бюджет; Levy – сборы; Duty – пошлина; Customs fee – таможенные платежи; Statutorily – законодательно; Tax administration – органы налоговой службы; Tax declarations – налоговые заявления; Tax reports – налоговая отчетность; Transfer pricing – трансфертное ценообразование; Cash registers – контрольно-кассовые машины; Pension contributions – пенсионные взносы; Pension funds – пенсионные фонды; Data software – программное обеспечение; Keep records – вести учет; Corporate income tax – корпоративный подоходный налог; Individual income tax – индивидуальный подоходный налог; Value-added tax – налог на добавленную стоимость; Excise taxes – акцизы; Rent tax on exports – рентный налог на транспорт; Special charges and taxes of subsoil users – специальные платежи и налоги недропользователей; Single land tax – единый земельный налог; Toll road vehicles – платные автотранспорты; Navigable waterways – судоходные водные пути; Outdoor (visual) advertisement installation – размещение наружной (визуальной) рекламы; The source of payment – источник выплаты; The net income – чистый доход; 159

Permanent establishment – постоянное учреждение; Sole proprietorships – предприниматель; Turnover – оборот; Spirit – спирт; Crude oil – сырая нефть; Subscription bonus – подписной бонус; Commercial discovery bonus – бонус коммерческого обнаружения; Rigid dump trucks – карьерные автосамосвалы; Tote – тотализатор; Bookmaking office – букмекерская контора. Theme 12. Basics of labor law 1. Concept, object and method of labor law 2. Basic principles of labor law 3. Labor relations: the concept, the base of beginning and parties 4. Basic rights and obligations of employee and employer 5. Labor agreement.

6.Labor routine and discipline 7.Social partnership in the labor Control questions relating to 12 Scheme subject to 12 Annex 12 to the topic

1. Concept, object and method of labor law Subject of labor law as a branch of law can be considered as labor relations, occurring between employees and employers, i.e. relations, which occurs in connection with labor activity of people. It is well known, that labor is a conscious, voluntative activity of individual, in order to create these or those other material or spiritual values. Method of labor law is characterized by the legal relations contract; equality of employee and employer; subordination of employee in terms employer intention; participation of labor collectives in the regulation of labor relations; combination of centralized and local regulation; protection of citizen’s labor rights; minimum monthly wage – this is a guaranteed minimum payments to the employee a of menial work, with regards to implementing labor standards under normal conditions and working hours; 160

heavy work ‒ employee activities related to lifting or moving heavy loads by hand or other physical work with the consumption of energy for more than 250 kcal / hour; social partnership ‒ a system of relationships between employees (representatives of workers), employers (representatives of employers), public authorities, aimed at ensuring the alignment of their interests in the regulation of labor relations and other relations directly linked to them; labor ‒ human activities, aimed at creating material, spiritual and other values necessary for life and in order to meet the needs of the individuals and society; employment relationship ‒ the relationship between employee and employer that occur for the rights and obligations implementation, in the manner prescribed by labor legislation of the Republic of Kazakhstan, employment and collective agreements; safety ‒ the state of workers protection, which is provided by a set of measures which exclude the impact of harmful and (or) hazardous production factors in terms of employee’s workplace; Labor law regulates labor and other relations directly connected with labor, aimed at protecting the rights and interests of the labor relation parts, the establishment of rights and freedoms’ minimum guarantees, in the workplace. 2. Basic principles of labor law

Labor legislation principles of the Republic of Kazakhstan can be as following: 1) prohibition of human and civil rights limitation in the workplace; 2) labor freedom; 3) prohibition of discrimination, forced labor and the worst forms of child labor; 4) ensuring the rights of working conditions that meet safety and sanitation; 5) priority of the employee’s life and health, with regards to the results of production activities; 6) ensuring the rights to fair remuneration not lower than the minimum wage; 7) ensuring the rights to have a rest; 8) equality of employee’s rights and opportunities; 9) ensuring the rights of employees and employers’ consolidation to protect their rights and interests; 161

10) social partnership; 11) state regulation of safety and health matters; 12) ensuring the rights of employees’ representatives in order to implement public control over labor legislation observance of the Republic of Kazakhstan. 3. Labor relations: the concept, the base of beginning and parties

Labor law regulates the relations as following: 1) employment; 2) directly related to employment; 3) social partnership; 4) by safety and security of employment. Labor and other relations, directly related to employment are regulated by: labor contract; act of the employer; agreement; collective agreement. Subjects of labor relations are: the employee and employer. Basis of labor relation emergence Labor relation occurs between the employee and employer under labor agreement. Constituent documents, acts of the employer, labor agreement may be preceded by the following procedures: 1) election for the position; 2) election for the position of concerned compete; 3) the appointment or approval of position; 4) assignment to work by legally authorized bodies, with regards to established quota; 5) adjudication of the labor agreement. 4. Basic rights and obligations of employee and employer Basic rights and obligations of employee Employee has rights to: 1) make, change, add and terminate the labor agreement; 2) require the employer to fulfill the employment conditions and collective agreements; 3) for the safety and security; 4) receive complete and accurate information on labor conditions and protection; 162

5) on the timely and full payment of wages in compliance with the terms of employment and collective agreements; 6) for idle charges; 7) have a rest, including paid annual vacation; 8) for the unification, including the right to form a trade union or other units, as well as their membership to provide and protect their labor rights; 9) participate with a help of their representatives in collective bargaining and in elaborating projects of the collective agreement, as well as get acquainted with the signed collective agreement; 10) for professional training, retraining and upgrading skills; 11) compensation for harm, caused to health in connection with execution of job obligations; 12) for compulsory social insurance; 13) for guarantees and compensation payments; 14) for protection of their rights and legitimate interests, without any contradictions to the law; 15) equal pay for equal work, without discrimination; 16) apply for a labor dispute resolution on conciliation commission, the court is made by choice; 17) for the workplace, equipped in compliance with the requirements of safety and security; Employee must: 1) execute their obligations in compliance with collective and labor agreements, also acts of the employer; 2) observe the labor discipline; 3) comply with the requirements for safety and security, fire prevention and production sanitary in the workplace; 4) take care of the employer and employees property; 5) inform the employer about the situation, which poses a threat to life and health, and safety of the employer and employees property, as well as the occurrence of idle charges; 6) not to disclose information constituting state secrets, official, commercial or other secret protected by the law, which became known to him or her in connection with the execution of job obligations; 7) compensate damage caused to the employer. Basic rights and obligations of the employer Employer has rights to: 1) freedom of choice in hire of employee; 163

2) alter, amend, terminate labor agreements with employees; 3) make acts for the employer within its authority. 4) form and join associations in order to represent and protect their rights and interests; 5) require the employees to fulfill the conditions of employment, collective agreements, employment regulations and other acts of the employer; 6) encourage employees to impose the disciplinary penalties, and make workers legally liable; 7) compensate harm caused by an employee while execution of labor obligations; 8) apply to the court, in order to protect their legal rights and interests in the workplace; 9) establish for employee the probationary period; 10) reimburse the costs, in compliance with employee training, if it is stipulated in the labor agreement. Employer must: 1) comply with the labor legislation of the Republic of Kazakhstan, collective and labor agreements, and also their own established acts; 2) during hire of employee, make labor agreements with employees in the manner and under the conditions prescribed by the Labor Code; 3) carry out internal control over safety and security; 4) provide the employee with work in accordance with labor agreement; 5) timely and fully payment of employee wages and other payments stipulated by normative legal acts of the Republic of Kazakhstan, collective and labor agreements, and also their own established agreements; 6) to acquaint the employee with the employer own acts and collective agreement; 7) to provide employees' representatives with complete and reliable information, necessary for making and executing collective agreement, as well as control of their implementation; 8) to consider about proposals of employees’ representatives; 9) provide employees with working conditions; 10) provide employees with equipment, instruments, technical documentation and other resources, which are necessary for execution of work obligations at their own expense; 164

11) carry out the instructions of state labor inspectors; 12) to suspend work if there is a threat to life and health conditions of employee and other people; 13) to implement social insurance for employees; 14) to insure civil liability for harm consequences to life and health of employee in the workplace; 15) provide employee with an annual paid vacation; 16) to ensure the safety of state archive documents, confirming the employee's working activities, and information about the withholding or deduction of money for their pensions; 17) to prevent employee about harmful (particularly harmful) and ( or) hazardous working conditions and opportunities in terms of occupational disease; 18) to take measures, in order to prevent risks in the workplace and technological processes, carry out preventive maintenance in productive and scientific ‒ technical progress; 19) to provide employees with training, retraining and upgrading their skills; 20) to compensate damage, which is caused to life and health of employees; 5. Labor agreement. The subject of labor agreement. In compliance with labor agreement, employee executes work (labor functions) with regards to qualification fee and comply with work schedule, and the employer provides working conditions, timely and fully payment of employee wages, also executes other payments stipulated by labor legislation of the Republic of Kazakhstan, collective and labor agreements, and the part’s agreement. Guarantees of equal rights and opportunities in terms of making labor agreement 1. It is prohibited to violate the equal rights and opportunities in terms of making labor agreement; 2. The pregnancy, having children up to 3 years, minority, and disability, all of these things cannot limit the rights in terms of making labor agreements. It is not allowed to make labor agreements, in the following cases: 1) for the person’s work execution, whose health is contraindicative in compliance with medical findings; 165

2) citizens, who are under 18 years of age to do heavy works, also to have harmful (particularly harmful) and (or ) hazardous working place conditions, as well as works with full legal liability, in the case if employee cannot preserve property and other assets of the employer; 3) citizens, who are deprived of rights to occupy certain positions or engage in certain activities in compliance with court verdict; 4) for foreigners and stateless people, temporarily staying in the Republic of Kazakhstan, before obtaining permission from local executive body in terms of foreign labor force need, in the manner prescribed by the Government of the Republic of Kazakhstan. Difference of labor agreement from other types of agreements: Distinctive features of labor agreement from other types of agreements can be the presence of one of the following conditions: 1) employees’ execution of work on certain qualifications, specialty, profession or occupation; 2) fulfillment of obligations personally with labor routine submission; 3) receipt of employee wages for labor. Content of labor agreement: Labor agreement must contain: 1) requisites of parts; 2) work on a particular specialty, qualification or position; 3) workplace; 4) term of labor agreement; 5) work commencement date; 6) working hours and rest periods; 7) amounts, terms and provisions of labor payment; 8) description of working conditions, guarantees and privileges; 9) rights and obligations of employee; 10) rights and obligations of employer; 11) procedure for amendment and termination of labor agreement; 12) guarantees and compensation payments, also procedure of their payments; 13) conditions on insurance; 14) responsibility of the parts’; 15) date of signing and serial number. Term of labor agreement: Labor agreement can be made: 166

1) for an indefinite period; 2) for a fixed period of not less than 1 year; 3) at the time of a specified task; 4) for period of temporarily replacement of absent employee; 5) for duration of seasonal work. The age, at which it is allowed to make labor agreement: Labor agreement can be made by citizens, who have reached the age of 16 years. Labor agreement can be done with the written consent of a parent, guardian or adoptive parent of: 1) citizens, who have reached the age of 15 years, in cases they had secondary education in grammar school; 2) students, who have reached the age of 14 years, in order to work in their free time, which is not harmful for their health and does not disrupt the learning process; 3) individuals, who have not reached the age of 14 years, can work as involved people in places without health detriments such as cinematography, theater, concert organizations, and circuses. Documents, which are required in order to make labor agreement In order to make labor agreement, the following documents are necessary: 1) identity card or passport ( birth certificate for people under 16 years of age); 2) residence permit or identification of stateless person (for foreigners and stateless people, permanently residing in the territory of the Republic of Kazakhstan); 3) document on education, qualifications, availability of special knowledge or training with labor agreement for work, which requires relevant knowledge and skills; 4) document, which can prove labor activity (for those with work experience); 5) documents on military registration (for conscripts and people, who are subjected to conscription of military service); 6) document on passage of preliminary medical examination (for people, who are subjected to such examination); 7) certificate copies of the taxpayer’s registration number assignment and social individual code. 167

Documents, which can confirm the employee's labor activity: 1) labor book; 2) labor agreement with employer about the termination date stamp and its reason; 3) discharge from employer acts, which can confirm emergence and cancellation of employment, in terms of labor agreement termination; 4) discharges from statement concerning wage payment for employee; 5) record (list of information about the work and labor activity of employee), which is signed by employer, bearing the stamp of organization or notarial; 6) archival letter of verification, containing information on labor activity of employee. Invalidity of labor agreement Labor agreement is deemed to be invalid, in case if it was made: 1) under influence of fraud, violence, and threats; 2) without intention of creating actual or legal consequences (alleged legal agreement); 3) by person, who is recognized as incompetent (disabled); 4) by person, who is under 16 years of age, without the written consent of one of the parents, guardian, adoptive parent. Basics of labor agreement termination: 1) denouncement (termination) of labor agreement by mutual consent; 2) expiration of labor agreement; 3) denouncement of labor agreement by employer; 4) denouncement of labor agreement by employee; 5) circumstances, beyond the control of the parts; 6) refuse of employee to continue the labor agreement; 7) violation of labor agreement’s term; Reasons for termination of labor agreement by employer: 1) liquidation of legal entity employer or termination of physical person’s labor activity; 2) downsizing or redundancy of employees; 3) employee inconsistence for work position due to lack of qualifications; 4) employee inconsistence for work position due to health state, impeding the work continuation; 5) negative results of work during the probationary period; 168

6) employee absence in the work without a valid reason for three or more consecutive hours per working day (or work shift); 7) found out an employee in a state of alcoholic, narcotic, psychotropic, intoxication (or their analogs), including cases of use during the workday substances causing a state of alcoholic, narcotic or intoxication (or their analogs); 8) employee violation of labor, fire or transport safety rules, which caused or could cause serious consequences, including injuries and accidents; 9) thievery commitment of employee in the workplace (including small ones), intentional destruction or damage to someone else’s property, in the manner prescribed by court; 10) guilty commitment of employee actions or inactions, while serving monetary or commodity values, if these actions or inactions can give reasons to the loss of credibility from employer; 11) immoral commitment of employee, who executes educational functions, hence that is not compatible with continuation of this work; 12) disclosure of information by employee, constituting state secrets or other secrets protected by law, which became known to employee in connection with implementation of labor obligations; 13) repeated failure or improper performance of work by employee without valid excuse, in terms of labor obligations, if employee has disciplinary fine; 14) termination of employee access to state secrets in the cases established by laws of the Republic of Kazakhstan; 15) representation of false documents by employee to employer or information on labor agreement, if this information could be the reason for refusal of labor agreement; 16) violation of labor obligations by head of the executive body, deputy chief or head of subdivision, which caused material damage to the employer; 17) absence of employee to work more than two consecutive months due to temporary disability, except when employee is on vacation, because of pregnancy and childbirth, and if the disease is included in the list of longer-term disability, approved by the Government of the Republic of Kazakhstan. Employee, who has discredited from labor ability due to occupational injury or illness, working position, is remain unchanged until the rehabilitation or disability categorization; 169

18) corruption offence commitment by employee under the judicial act’s exception of further possibility to work. Denouncement of labor agreement by employee Employee has rights to denounce labor agreement by notifying employer in a written form at least one month in advance. 6.Labor routine and discipline Labor routine rules set working hours and rest time of employees, also conditions of labor discipline maintenance. Labor routine rules are binding for employer and employees. Disciplinary fine. For committing a disciplinary offence, employer may apply the following disciplinary fines for employee: 1) observation; 2) reprimand; 3) severe reprimand; Working hours Working hours can be full-time, part-time, and incomplete. Full-time working hours must not exceed 40 hours per week. Part-time working hours Part-time is less than full-time duration: 1. part-time working day, it means there is a decrease in working day standards (work shift); 2. part-time working week, it means there is a decrease in working day numbers for the whole workweek; 3. simultaneous decrease in working day length standards (work shift); 4. decrease in working day numbers for the whole workweek. Rest time Types of rest time can be as following: 1) breaks during the work day (work shift) ‒ a break for rest and meals; 2) daily rest (between work shifts); 3) weekends (weekly rest); 4) holidays; 5) vacation. 7.Social partnership in the labor Social partnership in the Republic of Kazakhstan is aimed at solving following problems: 1) effective mechanism implementation in order to regulate 170

social, labor and economic relations, which are related to them; 2) assistance in social stability and harmony based on objective consideration of all society sector’s interests; 3) assistance in guaranteeing the rights of employees in the workplace, as well as the implementation of social protection; 4) assistance in the process of consultation and negotiation between social partners at all levels; 5) assistance in the resolution of collective labor disputes; 6) development of proposals for the implementation of state policy in the field of social and labor relations. Basic principles of social partnership can be as following: 1) authorization of the parties representatives; 2) equality of the parties; 3) freedom of choice between discussed issues; 4) voluntary assumption of obligations; 5) respect for the parties interests; 6) compulsory implementation of collective agreements; 7) parties and their representative’s responsibility for failure due to their undertaken obligations in compliance with the agreement; 8) assistance of state in strengthening and development of social partnership; 9) publicity of taken decisions. Glossary Minimum monthly wage – минимальный размер месячной заработной платы; Menial work – неквалифицированный труд; Heavy work – тяжелые работы; Lifting – подъем; Alignment – согласование; Employment relationship – трудовые отношения; Labor legislation – трудовое законодательство; Fair remuneration – справедливое вознаграждение; Consolidation – объединение; Constituent documents – учредительные документы; Appointment – назначение; Approval – утверждение; Assignment – назначение; 171

Adjudication – вынесение судебного решения; Labor agreement – трудовой договор; Idle charges – оплата простоя; Annual vacation – ежегодный трудовой отпуск; Trade union – профессиональный союз; Collective bargaining – коллективные переговоры; Training – подготовка; Retraining – переподготовка; Upgrading skills – повышение своей квалификаций; Contradictions – противоречие; Conciliation commission – согласительная комиссия; Hire of employee – прием на работу; Alter – изменять; Amend – дополнять, вносить поправки; Terminate – расторгать; Disciplinary penalties – дисциплинарные взыскания; Legally liable – материальная ответственность; Apply to the court – обращаться в суд; Probationary period – испытательный срок; Reimburse – возмещение; Carry out – осуществлять; Acquaint – ознакомить; State labor inspectors – государственные инспекторы труда; Suspend – приостанавливать; Insure – страховать; Withhold – удержание; Deduction – отчисление; Occupational disease – профессиональное заболевание; Preventive maintenance – меры предотвращения; Part – 1. части 2. стороны; Medical findings – медицинское заключение; Court verdict – приговор суда; Labor routine – трудовой распорядок; Work commencement date – дата начало работы; Indefinite period – неопределенный срок; Absent employee – отсутствующий работник; Seasonal work – сезонная работа; Students – учащиеся; 172

Disrupt – нарушать; Health detriments – ущерб здоровью; Relevant knowledge – соответствующий знания; Conscripts – призванный на военную службу, призывник; Passage – прохождение; Preliminary medical examination – предварительное медицинское освидетельствование; Labor book – трудовая книжка; Record – послужной список; Alleged legal agreement – мнимый трудовой договор; Incompetent (disabled) – недееспособный; Denouncement (termination) – расторжение; Downsizing – сокращение численности (работников); Redundancy – сокращение штата (работников); Inconsistence – несоответствие; Thievery commitment – совершение хищения; Guilty commitment – совершение виновных действий; Monetary or commodity values – денежные или товарные ценности; Credibility from employer – утрата доверия, со стороны работодателя; Immoral commitment – совершение аморального проступка; Improper performance – ненадлежащее исполнение (работы); Disciplinary fine – дисциплинарное взыскание; Head of the executive body – руководитель исполнительного органа; Deputy chief or Head of subdivision – заместитель или руководитель подразделения; Discredit – лишать полномочий; Rehabilitation – восстановление; Disability categorization – установление инвалидности; Corruption offence – коррупционное правонарушение; Labor discipline maintenance – обеспечение трудовой дисциплины; Reprimand – выговор; Work shift – рабочая смена; Negotiation – переговоры; Assumption – принятие. 173

Control questions 1. What relations are regulated by labor law norms? 2. Features of labor law method. 3. Principles of labor law. 4. Sources of labor law. 5. What can be considered as labor relations? 6. The grounds of the employment relationship. 7. Parties of labor relations. 8. What is social partnership at work? 9. What can be considered as forms and principles of social partnership? 10. What is a collective agreement? 11. Concept and content of labor agreement. SECTION III. MAIN BRANCHES OF KAZAKHSTAN PROCEDURAL LAW Theme 13. Basics of civil procedure law 1. What is understood by civil procedural law? 2. Principles of civil procedure 3. Types of civil proceedings. Control questions relating to 13 Scheme subject to 13 Annex 13 to the topic

1. What is understood by civil procedural law?

In compliance with usual division of law branches into material (constitutional, administrative, civil, and etc.) and procedural by judicial science and practice, civil procedural law refers to the number of procedural law branches. According to scientific and academic literature representations, civil procedural law is a branch of law, which includes the entire aggregation by certain system of procedural law arrangement, regulating public relations that occur between the court and involved people in the process, in terms of adjudication of civil case. Subject of civil procedural law’s legal regulation can be considered as social relations that mediate with a help of civil procedural law norms. 174

These relations occur in the administration of justice on civil cases, as well as in the judicial acts enforcement administration and decisions of some other state authorities. Speaking about the method of civil procedural law, it must be noted, that this method as well as any other legal methods is a method (tool) of social relations regulation. According to theory of civil procedural law and practice of applying civil procedural law norms, the formed method of social relations regulation with a help of civil procedural law can be considered as dispositive, exactly dispositive ‒ permissive method. Appliance of this method provides to each civil process participant a certain range of rights, and at the same time correspondence of their obligations, as it is prescribed by civil procedural law norms, depending on its place and role in this process. 2.Particular proceeding in the civil procedural law Particular proceeding can be defined as one of the types of civil court proceedings, which adjudicate the cases necessary for judicial confirmation of the presence or absence of legally significant facts or circumstances. Unlike lawsuit proceedings, particular proceedings act as unilateral proceedings, which can be characterized by the absence of competing interests ‒ disputing parties. In compliance with Civil Procedural Code of the Republic of Kazakhstan, court adjudicates following cases, in terms of particular proceedings: 1) establishment of facts, which have legal significance; 2) adoption of child; 3) recognition of the citizen as whereabouts unknown or announced as dead; 4) limitation of citizen’s active legal capacity, recognition of citizen as legally incapable, restriction or deprivation of minor’s right aged from 14 to 18 years, in terms of independent disposition of their income; 5) recognition of minor as legally capable (emancipation); 6) recognition of movable property as ownerless and recognition of rights to communal ownership on ownerless immovable property. Civil Procedure Law of the Republic of Kazakhstan Civil Procedure Law of the Republic of Kazakhstan regulates social relations, occurring in the administration of justice by courts, 175

in terms of consideration and resolution of sues and other cases within their competence. Civil Justice Law of the Republic of Kazakhstan Civil Justice Law establishes procedures for dealing with disputes, occurring from civil, family, labor, housing, administrative, financial, economic, land relations, also relations on the use of natural resources and environmental protection, and other legal relations, as well as cases of special procedures. Purposes of civil procedure Purposes of civil procedure can be as following: 1. protection of violated or disputed rights, freedoms and lawful interests of citizens, states and organizations; 2. strengthening the rule of law; 3. preventing the rights violation. 3.Principles of civil procedure 1. Legality 1. Court, at adjudication of a case in civil procedures is obliged to strictly comply with requirements of the Constitution of the Republic of Kazakhstan and other normative legal acts. 2. Courts are not entitled to apply laws and other normative legal acts, infringing on the rights and freedoms of individual and citizen. 3. It is unacceptable and entails cancellation of illegal judicial acts, if there is a violation of law by court at adjudication of a case. 2. Effectuation of justice only by court 1. Effectuation of justice is made only by court, in compliance with civil procedural law. 2. Emergence or illegal adjudication of a case have no legal force and cannot be executed. 3. Judicial protection of rights, freedoms and legitimate interests of individual 1. Everyone has rights to seize the court for protection of their violated or disputed constitutional rights, freedoms and lawful interests. 2. Prosecutor within his/her obligations has rights to seize the court with sue and protect the rights of citizens, legal entities, public and state interests. 3. Expropriation from rights to seize the court is not valid, if it is contrary to the law or infringes the rights and interests protected by law. 4. Respect the honor and dignity of individuals 176

1. In the adjudication of a civil case, it is prohibited to make decisions and actions, which humiliate or diminish the dignity of person involved in civil procedure. 2. Moral damage, which is caused to person in civil procedures by illegal actions of state bodies and officials have to be compensated in compliance with the law. 5. Inviolability of private life. Privacy of correspondence, telephone conversations, postal, telegraph and other messages 1. Private lives of citizens, individuals and family secrets are protected by the law. 2. Everyone has rights to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph and other messages. 3. Restrictions on these rights in a civil procedure are allowed only in cases and in the manner expressly prescribed by the law. 6. Inviolability of property 1. Property is ensured by the law. No one can be deprived of his/her property, except if it is not deprivation by the law. 2. Seizure on bank deposits and other property of individuals, as well as its confiscation in civil procedures can be made in cases and in manner prescribed by the Civil Procedure Code. 7. Independence of judges 1. Judge is independent and subjected only to the Constitution and Law of the Republic of Kazakhstan, with regards to administration of justice. 2. Judges and courts adjudicate civil cases under conditions precluding extraneous influence on them. Any interference in activities of courts is unacceptable and punishable by the law. For specific cases, judges are not accountable. 3. Guarantee of judges independence established by the Constitution and Law of the Republic of Kazakhstan. 8. Equality protection of the law 1. Administration of justice in civil cases is carried out on the basis of equality before the law and courts. 2. No one can be discriminated in terms of their origin, social and property status, official position, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances; 177

9. Language of court procedure 1. Court procedure in civil cases is conducted in the state language, and if necessary in court procedure equally with the state language can be used Russian or other languages. 2. Language of court procedure is established by court, depending on the language of seize application to the court. 3. Court ensures for involved people free translation into the language of procedures, which is necessary for them, if materials in the procedure set out in another language. 10. Adversarial and equality of parties 1. Civil procedures are carried out on the basis of adversarial and equality of parties. Parties have equal procedural rights and bear equal procedural obligations. 2. Parties in civil procedures can elect their own position, methods and means to defend themselves, and regardless of the court and other bodies and individuals. 11. Exemption from obligation to testify as a witness 1. Nobody is obliged to testify against himself/herself, wife (husband) and their close relatives, as defined by the law. 2. Priests are not required to testify against those who put their trust in confessional. 3. Individuals, which are mentioned above have rights to refuse to testify and cannot be subjected to any obligations for that. 12. Ensuring the rights to have qualified legal assistance Everyone has rights to receive qualified legal assistance in civil procedure. 13. Publicity of court procedure 1. Procedures in all courts and courts instances take place openly. 2. Closed court sessions are implemented in such cases as announcement of solutions, which contain state secrets, as well as involved people satisfaction of petition by the court, in order to ensure the confidentiality of adoption, protection of personal, family, business or other information about the private life of citizens by the law, or other circumstances preventing public procedure. 3. Private correspondence and telegraph messages of citizens can be disclosure in open court session, only with the consent of individuals, who have executed this correspondence and telegraph messages. 4. It is not allowed to be in courtroom attendance for citizens less than 16 years of age, except the case if they are witnesses or involved in legal procedure. 178

14. Ensuring the safety of legal procedure 1. Legal procedure takes place under conditions, which can ensure normal operation of judge and safety of attendees. 2. In order to ensure safety of judge and attendees in the courtroom, presiding officer can order an inspection of people wishing to be present in legal procedure, including the verification of documents, which can prove their identity, personal inspection, also their taken onto things. 15. Necessity of judicial acts 1. Court approves judicial acts on civil cases in the form of decisions, specifications, provisions and orders. 2. Decisions, specifications, provisions and orders, which have legal force, as well as the lawful orders, requirements, mandates, summons and other approaches of courts and judges are required for all government agencies, local authorities, public associations and other legal entities, officials, and citizens without the exception, and they must be strictly enforceable throughout the territory of the Republic of Kazakhstan. 16. Freedom appeal of procedural actions and decisions 1. Actions and decisions of the court may be appealed. 2. Individuals, involved in legal procedure have rights to reconsideration of taken decision by court of superior jurisdiction. Principles of civil procedures. Violation of the civil procedure principles, depending on its character and materiality entails the abolition of court acts. Jurisdiction of civil procedures 1. Civil procedures, within the jurisdiction of regional (city) court, and their alternative courts Civil procedures are considered and resolved by the regional (city) and their alternative courts. 2. Jurisdiction of civil procedures to specialized courts 1. Specialized interregional economic courts take into consideration civil procedures on property and non-property disputes, and when the parties are involved in entrepreneurial activities without forming a legal entity, and corporate disputes. 2. Specialized regional and their alternative administrative take into consideration civil procedures on contesting provisions of bodies (officials), which are authorized to consider legal procedures on administrative offences. 179

3. Military courts take into consideration civil procedures on appeal by military servant of the Armed Forces, other troops and military formations, citizens, who have military training, actions (inaction) of officials and military control. Military courts have rights to take into consideration other civil procedures, if one of the parties is military servant, military authorities, or military unit. 4. Interregional specialized courts on minors can take into consideration legal procedures on disputes about child’s place of residence; deprivation (restriction) and restoration of parental rights for adoption of child; assignment of minors in special educational establishments or organizations with special detention regime; dispute, occurring out of custody and guardianship (patronage) of minors in accordance with the matrimonial state of the Republic of Kazakhstan. 5. Specialized financial court take into consideration civil procedures on property or non-property disputes of the regional financial center’s member, as well as civil procedures to restructure financial institutions and organizations within the banking conglomerate as parental organization and are not financial institutions, in cases prescribed by the laws of the Republic of Kazakhstan. Prosecution at the defendant’s place of residence. Prosecution can be presented in court at the defendant’s place of residence. Prosecution against legal entity can be presented at the legal entity’s place of residence. Jurisdiction at the plaintiff's options 1. Suit to the defendant, whose place of residence is unknown or not having place of residence in the Republic of Kazakhstan, can be presented at the location of defendant’s property or last known place of residence. 2. Sue to the legal entity can be presented at the location of his/her property. 3. Sue, which occurs from the activities of legal entity’s branch or representative office, can be presented at the location of the branch or representative office. 4. Sue on alimony and paternity can be presented by the plaintiff, also to his place of residence. 5. Sue on compensation of damage, caused by injury or other damage to health, as well as the death of wage-earner, can be presented by the plaintiff to his/her place of residence or injury. 180

6. Sue, which occurs from contracts, indicating the place of execution, can be presented by the plaintiff at the place of contract fulfillment. 7. Sue on divorcement of marriage can be presented to the place of plaintiff’s residence, and in cases if plaintiff has minor children or for health reasons cannot attend to the defendant's place of residence. 8. Sues on the exaction of wages, pensions and benefits, as well as sues on restoration of labor, pension and housing rights, related to compensation of damages caused to a citizen by illegal conviction, illegal criminal culpability, unlawful use of a preventive measure or illegal imposition of an administrative penalty in the form of administrative arrest can be presented to the place of plaintiff‘s residence. Sue on contesting the administrative penalties imposition, also can be presented at the place of plaintiff’s residence. 9. Sue on protection of consumer’s right can be presented to the place of plaintiff’s residence or the place of making or fulfillment of the contract. 10. Sue on compensation of damages, caused by the collision of vessels, as well as on the exaction of remuneration for assistance and rescue at sea can also be presented to the place of defendant’s residence or the port of vessel. 11. Election between several courts, in compliance with jurisdiction cases, is made by the plaintiff. Exclusive jurisdiction 1. Sues on rights to land plots, buildings, facilities, constructions, and other objects, tightly bound with the land (immovable property), also sues on the release of property from seizure can be presented at the location of these objects or seized property. 2. Sues of the estate-leaver creditors, which are presented before the inheritance of heirs, are subjected to the jurisdiction at the location of inherited property or its major parts. 3. Sues to transporters, in compliance with agreements on transportation of goods, passengers or baggage, can be presented at the location of transport organization’s permanent body. 4. Sues on damages, caused by foreign state’s violation of jurisdictional immunity of the Republic of Kazakhstan and its property, can be presented at the place of plaintiff’s residence. 181

4. Composition of court and disqualification. Composition of court. 1. Civil cases in courts, which are first appeal instance, have to be considered by a single judge, who acts on behalf of the court. 2. Case procedures in the court of cassation or supervisory instance are a collegiate court composition. In terms of collegial case procedures court composition must consist of an odd (at least three) number of judges, the regional chairman or chairman of the Supreme Court of the Republic of Kazakhstan, or one of the judges, who is the chairman in the court among others. Basis for disqualification of the judge 1. A judge cannot participate in the adjudication of cases and have to be removed of he/she: 1) at the previous adjudication of case was involved as a witness, expert, specialist, interpreter, representative, secretary of judicial session, officer of justice, the bailiff; 2) is a relative of anybody, who involved in the adjudication of case, or their representatives; 3) personally, directly or indirectly interested in the outcome of case or if there are other circumstances, causing justifiable doubts to his/her impartiality. 2. Composition of court cannot include people who are in affinitive relations to each other. Basics for disqualification of the prosecutor, expert, specialist, interpreter, court session secretary 1. Expert, specialist or interpreter cannot participate in the adjudication of case, if: 1) he is or he has been in the subordination, or other dependence on the people, who are involved in the adjudication of case, or their representatives; 2) he has done the legislative revision, which materials have formed the basis for the suit or used in considering this adjudication of case ; 3) showed his\her incompetence . 2. Prosecutor, specialist, interpreter, court session secretary involvement at the previous adjudication of the case as a prosecutor, specialist, interpreter, and court session secretary is not the reason for their disqualification. Previous involvement of the person as an expert is not the reason to disqualify him\her of case expertize, except when it is assigned again after he\she was involved at expertize. 182

Individuals, who are involved in case. Composition of people, who are involved in case: 1. parts; 2. third parts, who are independently requires the subject of dispute; 3. third parts, not making independent requires the subject of the dispute; 4. prosecutor; 5. state authorities; 6. local authorities; 7. organizations or other individuals, who intervenes in the process; 8. applicants and other interested individuals in adjudication of cases by the court under a special procedure. Legal capacity of civil procedure The ability to have rights and obligations of civil procedure (legal capacity of civil procedure) is recognized equally for all citizens and organizations, which are subjects of substantial law. Active legal capacity of civil procedure The ability to actively execute own rights and implement obligations in the court, entrusting the adjudication of case to the own representative (active legal capacity of civil procedure) can be held to the full extent by citizens, who have reached the age of eighteen, and organizations. Rights and obligations of individuals, who are involved in case People involved in the case have the right to: 1. get acquainted with the case, make notes and copies from them; 2. file a motion for disqualification; 3. offer evidence and participate in its investigation; ask questions to other individuals involved in the case, witnesses, experts and specialists; 4. submit petitions, including the vindication of additional evidences; 5. make oral and written explanations to the court; 6. present their arguments on all issues, concerning the adjudication of case in the court; 7. take exception against petitions and arguments of other individuals involved in the case; 8. participate in the judicial pleadings; 9. get acquainted with the court record and make written comments on it; 10. appeal the decisions and rulings of the court; 183

Parts 1. Parts in civil procedures can be as the plaintiff and defendant. The plaintiffs are citizens and legal entities, who are sued in their own interests or interested in others suit. The defendants are citizens and legal entities, who have the plaintiff’s suit against on them. 2. The state can be considered as part in civil procedure. 3. Parts have equal procedural rights and bear equal procedural obligations. Third parties, who made independent suits on the disputed matter Third parties, who can make independent claims on the disputed matter, may start process before prejudgment of the first-instance court by suing at law for one or both parties. They have all rights and bear all responsibilities of the plaintiff. Third parties, who did not make independent suits on the disputed matter Third parties, who did not make independent suits on the disputed matter, may start process in favor of the plaintiff or defendant before prejudgment of the first-instance court, if it may influence on the rights or obligations, concerning one of the parties. They may be involved in the adjudication of case, also at the request of the parties and other involved individuals, or at the initiative of the court. Representatives in the court. Administration of a case through representatives 1. Citizens have right to administrate their case in court personally or through representatives. Personal participation of the citizen does not deprive the rights to have a representative. 2. If this is the organization, administration of their cases is held by agencies of organization, acting within the powers afforded to them by law, other normative legal acts or the constituent documents, also administration of cases can be held by their representatives of agencies, who have empowered with appropriate credentials. As representative in court can act any legally capable person, who has appropriate credentials, in order to administrate the case in court, based on a power of prosecutor, law, court decision or administrative act. Representatives on entrust Representatives on entrust in the court can be as following: 1) lawyers; 184

2) employees of legal entities, concerning the adjudication of those legal entities; 3) empowered trade unions, in the case of workers, employees, and other people, whose protection of rights and interests are carried out by trade unions; 4) empowered organizations, which have to protect the rights and interests of organization members by law, statute or regulation; 5) empowered organizations, which have to protect the rights and interests of other individuals by law, statute or regulation; 6) one of the partners on entrust of other partners; 7) other individuals, empowered by the court at the request of involved individuals in the case. Legal representatives 1. Rights, freedoms and legitimate interests of disabled citizens and individuals, without full active legal capacity or with limited active legal capacity have to be protected in court by their parents, adoptive parents, guardians, foster parents, or other substitute individuals, which present documents proving their credentials in court. 2. In the adjudication of case, where citizen have to participate, and this citizen is recognized as whereabouts unknown, the person, who is guardian of his\her property can acts as a representative in the court. 5. Evidence and proof 1. As evidence of the case can be only factual data received in a legal manner, and on the basis of which the court enacts the presence or absence of circumstances that justify the requires and claims of parties, and other circumstances, relevant to the proper adjudication of the case. 2. This factual data enacts by explanations of the parties and third parties, testimony of witnesses, material evidence, expert opinions, protocols of procedure, court records, which can reflect the progress and results of procedure, and other documents. Obligatory of proof Each party has to prove the facts, on which they rely on as the basis of their requires and claim. Factual data, which is inadmissible as evidence Factual data must be recognized as inadmissible evidence by the court, if they are received with violations of law by deprivation or 185

restraint of individuals legal rights, who is involved in the case, or in violation of other civil procedure rules in trial of the case or its prepare, which have affected or could affect the reliability of evidence, including: 1) use of violence, threats, fraud and other illegal actions; 2) misleading a person, who is involved in the case, concerning their rights and obligations occurring from unclarified, incomplete or wrong explanation to that person; 3) implementation of the procedural action by person, who doesn’t have rights to carry out civil case procedures; 4) participation in the civil case procedure of a person, who has to be disqualified; 5) substantial violation of procedural actions order; 6) from unknown person or source, that cannot be set in the adjudication of case; 7) use of proof methods, which are contradictive to modern scientific knowledge. Testimony 1. Witness can be any person, who knows any information about the circumstances relevant to the case. It is not recognized as a proof, if the person cannot specify the source of this information. 2. Cannot be considered as a witness: 1) individuals, because of their young age, physical or mental disability, don’t have the possibility to perceive facts and give accurate testimony about them, except for cases on disputes about parenting; 2) representatives on civil procedural case or advocates on criminal case ‒ concerning the circumstances which became known to them in connection with their duties as representative or advocate; 3) judge ‒ on matters, occurring in consultation room during the discussion of circumstances, with regards to adjudication of case or sentence; 3-1) arbitrator or court of referees – on circumstances, which became known to them in connection with execution of their duties; 3-2) mediator – on circumstances which became known to him/her in the mediation process, except cases prescribed by the law; 4) priests ‒ on circumstances which became known to them by those who trusted them in the confessional; 186

Glossary Civil procedural law – гражданское процессуальное право; Administration of justice – рассмотрение правосудия; Sue – исковые дела; Law of Civil proceedings – законодательство о гражданском судопроизводстве; Civil proceedings – гражданское судопроизводство; Legality – законность; Adjudication of case – разрешение (рассмотрение) дел; Entitle to – иметь право на; Infringing on the rights and freedoms – ущемлять права и свободу; Illegal judicial act – незаконные судебные акты; Effectuation of justice – осуществления правосудия; Judicial protection – судебная защита; To seize – обратиться (в суд); Prosecutor – прокурор; Expropriation – отказ; The honor and dignity – честь и достоинство; Humiliate – унижать; Diminish – умалять; Inviolability – неприкосновенность; Correspondence – переписки; Deprived of – лишиться; Extraneous – постороннее; Adversarial – состязательность; Bear – нести ответственность; Exemption – оценка; Testify – давать свидетельские показания; Confessional – исповедь; Publicity – гласность; Court instances – судебные инстанции; Closed court session – закрытое судебное заседание; Open court session – открытое судебное заседание; Courtroom – зал судебного заседания; Presiding officer – председательствующий; Specifications – определения; Provisions – постановления; 187

Orders – приказы; Summons – вызовы; Abolition – отмена; Jurisdiction of civil cases – подсудность гражданских дел; Disputes – споры; Matrimonial state – брачно-семейное законодательство; Collision of vessels – столкновение судов; Rescue – спасание; Exclusive jurisdiction – исключительная подсудность; Estate-leaver – наследодатель; Heirs – наследники; Collegiate court composition – коллегиальный состав суда; Bailiff – судебный пристав; Outcome –исход дела; Impartiality – беспристрастность; Affinitive relations – родственные связи; Intervene – вступающие (в процесс); Substantial law – материальное право; File a motion – заявлять отводы; Vindication – истребование; The judicial pleadings – судебные прения; Court record – протокол судебного заседания; Constituent documents – учредительные документы; Appropriate credentials – соответствующие полномочия; Representatives on entrust – представительство по поручению: Trade unions – профессиональные союзы; Active legal capacity – дееспособность; Factual data – фактические данные; Enact – устанавливать; Contradictive – противоречащие. Control questions 1. Tell about the concept and subject of civil procedural law. 2. What are the features of civil procedural law method? 3. What are the principles of civil procedural law? 4. What are the types of civil proceedings? 5. What can be considered as lawsuit proceedings? What are the peculiarities of lawsuit proceedings compared to other types of civil proceedings? 188

6. What are the peculiarities of cases, which occur from public relations? 7. What cases are adjudicated by courts, in compliance with Civil Procedural Code, concerning particular proceedings? Theme 14. Basics of criminal procedure law 1. Criminal Procedural Law: concept and structure 2. Purpose and basic principles of criminal justice 3. Court proceedings. 4. Principles of criminal procedural law 5.Administration of criminal proceedings Control questions to the topic 14 Scheme subject to 14 Annex 14 to the topic

1. Criminal Procedural Law: concept and structure Criminal procedural law as a branch of law, can be considered as a system of legal norms, mediating (regulating) public relations, which occur from the initiation of criminal case, investigation of criminal acts during the court proceedings, as well as calibration by the higher courts of law and verdicts justification, enactments and decisions of lower courts. Criminal Procedural Law consists of General and Special parts. General part includes norms, which can determine the order and content of criminal proceedings as a whole, including the tasks of criminal proceedings, its principles, criminal prosecution and its types, procedures for initiating criminal cases and basis for refusal to initiate criminal proceedings, as well as the termination of criminal proceedings and prosecution, etc. Content of criminal procedural law’s Special part includes norms, regulating the individual stages of criminal proceedings. Criminal procedural law is in close connection and cooperation with criminal law. Moreover, if the criminal law determines the question of whether to investigate a particular illegal act as a crime, and at the same time establishes a system of legal norms, types and measures of punishments, which should be applied to those who committed crimes, in that case the criminal procedural law determines the order of activities on exposure of the crime and identify the person, who committed the 189

offence, also application procedure and conditions of criminal measures to the crime offenders. 2. Purpose and basic principles of criminal proceedings System of norms, constituting criminal procedural law, in reality acts as an aggregation (system) of rules, which mediates (regulates) the whole process of criminal proceedings. In compliance with established in the scientific judicial literature and legal system definition of criminal proceedings can be considered as a pre-trial and trial proceedings on the criminal case. Basically, pre-trial criminal proceedings on criminal case can be considered as criminal proceeding from the date of information acquisition on crime commitment till the prosecutor sends case to court, in order to examine its merits. Correspondingly, court proceedings on the criminal case can be considered as the whole process of criminal case merits examination in the court. According to the current proceedings of law on criminal case, or criminal proceedings can be considered as, firstly, the protection of the rights and legitimate interests of individuals and organizations, which are victims of crime, and secondly, the protection of individuals from illegal and unreasonable denouncement, conviction and restriction of rights and freedoms. Law especially emphasizes, that criminal prosecution and imposition of guilty, which is just punishment to the same extent meets the purposes of criminal proceedings, as the refuse to prosecute innocent, release them from punishment, and rehabilitate anyone who has been illegally prosecuted by criminal law. 3. Court proceedings In compliance with the current criminal procedural law, court proceedings consist of: a) proceedings in the first-instance court; b) proceedings in the second-instance court; c) proceedings in the supervisory instance court. Regulating various aspects of court proceedings in different instances, Criminal Procedural Code of the Republic of Kazakhstan defines the first-instance court as “court, which investigates criminal case on merits and is legally qualified to invoke a sentence, as well as makes decisions in the process of pretrial proceedings on criminal case.” 190

Court proceedings in the second-instance court can be considered as investigation on complaints of involved people in the process, concerning case solutions, which doesn’t have legal force, in the appellate or cassation order. According to the established definition in the scientific judicial literature, appeal procedure or appeal, in terms of these situation can be considered as way of checking, which doesn’t have legal force, and means that the second-instance court investigates criminal cases on the complaints of involved people in the process through a new judicial investigation and invoke new sentence of the court, instead of cancelled one. Cassation procedure or cassation can be considered as complaint and protestation to higher court, and judgment, which is imposed by lower court and doesn’t have legal force. In contrast to the appeal, which is subjected to the new checking of criminal charges proof, cassation is associated with the revelation of only formal law violations, and was allowed to take place in the first-instance of the court sentence. In contrast to Criminal Procedural Code of the Republic of Kazakhstan the right to complaint adjudication of the court, which doesn’t have legal force, in the appellate or cassation procedure belongs to convicted person, acquitted person, their lawyers and legal representatives, public prosecutor, victim and his\her representative. Civil plaintiff, civil defendant or their representatives have rights to complaint the adjudication of the court, concerning the parts of civil suit. Complaint and submission on sentence or other adjudication of the first-instance court can be filed by the parties in the appellate or cassation procedure within 10 days from the date of sentence proclamation, and convicted person, which is in custody, ‒ in the same period from the date of receiving judgment copy. In compliance with criminal procedural law: 1) court, which investigates criminal case on appeal or cassation procedure, examines the legality, validity, fairness of judgment or other court decision, only in the case it this part, contains the complaint, concerning those convicted people related to complaint or submission; 2) court has rights to mitigate the punishment of convicted person or apply the criminal law on a less serious crime, during the 191

investigation of criminal case on cassation procedure, but doesn’t have rights to enhance the punishment , as well as to apply the criminal law on a more serious crime. It should be noted, that during the criminal case investigation on appellate procedure, court may take one of the following solutions: 1) quit the judgment of the first-instance court without a change, and the appeal complaints or submission ‒ without approval; 2) abolish the convicted judgment of the first-instance court and acquit the defendant or terminate the criminal proceeding; 3) abolish the judgment of the first-instance court’s acquittal and invoke a sentence on conviction; 4) change the first-instance court’s sentence. In contrast to the proceedings of the second-instance court, where complaints of involved people in the criminal process can be investigated court sentences, which doesn’t have legal force, proceedings of the supervisory instance only deal with judgments and other court decisions, which has legal force. Purposes of criminal procedure can be as following: 1. prompt and full disclosure of crimes; 2. exposure and prosecution of criminal responsibility, those who committed them; 3. fair court proceedings; 4. accurate application of criminal law. Principles of criminal procedure can be as following: Significance of criminal procedure principles, considering the fact of their violation’s character and materiality: entail recognition of the proceedings as invalid; cancellation of court decision on such proceeding; recognition of collected information as deficient strength of evidence. 4.Principles of criminal procedural law: Legality 1. The court, prosecutor, investigator, body of inquiry and the inquiry officer, in terms of criminal case proceedings are required to strictly follow Constitution of the Republic of Kazakhstan, Criminal Procedural Code and other normative legal acts. 2. Court doesn’t have rights to apply laws and other normative legal acts, which infringe on rights and freedoms of citizen prescribed by Constitution of the Republic of Kazakhstan. 192

3. Violation of law by the court, the criminal prosecution authorities on criminal case proceedings is inadmissible and entails legal responsibility, recognition of acts as illegal and their termination. Administration of justice only by the court 1. Justice on criminal cases in the Republic of Kazakhstan can be administrated only by the court. Assumption of court’s legal power by anyone entails the legal responsibility, prescribed by the law. 2. No one may be convicted of a crime and subjected to criminal punishment, except for court judgment and in compliance with the law. 3. Court competence, within its jurisdiction, also their investigation of criminal proceedings has to be determined by the law and cannot be arbitrarily changed. Establishment of exceptional or special courts, whatever it is called, for investigation of criminal cases is prohibited. Judgments and other exceptional court decisions, and also other illegally established courts, don’t have any legal force and cannot be executed. 4. Judgment and other court decisions, which execute the criminal proceedings on the case not under its jurisdiction, and have exceeded his\her legal power or in any other way violates the principles of criminal proceedings have to be considered as illegal and subjected to cancellation, in compliance with the Criminal Procedural Code. Judicial remedy of the rights and freedoms of individual and citizen 1. Everyone has the right to judicial remedy of their rights and freedoms. 2. Nobody’s jurisdiction cannot be modified without his\her consent, as it is stipulated by the law. 3. State ensures to the complainant access to justice and compensation for damages, in the cases and manner prescribed by the law. Respect the honor and dignity of individual 1. In case of criminal case proceedings, it is prohibited to make decisions and actions, which humiliate or diminish the dignity of person involved in criminal proceedings, also it is not allowed to collect, use and disseminate the information about private life, as 193

well as the personal information, that person finds it necessary to keep in a secret. 2. Moral damage, caused by illegal actions of authorities, who conducts the criminal proceeding, have to be compensated in compliance with the law. Inviolability of person 1. Nobody can be detained on suspicion of crime commitment, arrested or otherwise deprived of his\her liberty, except on the basis and in the manner prescribed by the Criminal Procedural Code. 2. Arrest and custodial detention can be allowed only, in case and in manner prescribed by the Criminal Procedural Code, and only with the court sanction, which give the rights to appeal for person in detention. Without the court sanction, person can be detained for a period not more than seventy-two hours. Forced custodial detention of person, to the medical institution for forensic-psychiatric examination is permitted only by the court judgment or prosecutor sanction. 3. Every detainee immediately gets the basis of his\her detention, as well as the legal description of suspected or accused offence. 4. Court and authorities of criminal proceeding must immediately release the illegally detained, arrested, or illegally located person to the medical organization, or the person, who is held in custody more than fixed period, which is prescribed by the law or judgment. 5. None of the involved people in criminal proceedings can be subjected to violence, brutal or humiliate, in terms of person’s dignity. 6. Nobody can be appealed to be involved in proceeding, which can endanger the person’s life or health. Proceedings, which can violate the integrity of person, may be taken against the intention of person or his\her legal representative, only in cases and manner prescribed by the Criminal Procedural Code. 7. Maintenance of person, who has preventive measure as a detention, and person detained on suspicion of crime can be executed in conditions that do not endanger their life or health. 8. Harm, which is caused to citizen as a result of illegal imprisonment, detention in conditions dangerous to life and health, brutal treatment, has to be compensated in the manner prescribed by the Criminal Procedural Code. 194

Protection of citizen’s rights and freedoms on criminal proceedings 1. Authority, who conducts the criminal proceeding, must protect the rights and freedoms of citizens involved in criminal proceedings, create conditions for their implementation, take timely actions, in order to meet the legitimate demands of involved people. 2. Harm, which is caused to individual as a result of rights and freedoms violation on criminal proceedings, has to be compensated on the basis and in the manner prescribed by the Criminal Procedural Code. 3. If there are sufficient basis that the victim, witness or other people, involved in criminal proceedings, as well as their family members or other close relatives are threatened with murder, violence, destruction or damage of property or other dangerous illegal actions, the authority, who conducts the criminal proceedings, must take legal measures to protect life, health, honor, dignity and property of these people, within their competence. Inviolability of private life. Privacy of correspondence, telephone conversations, postal, telegraph and other messages Private life of citizens, personal and family secrets is protected by the law. Everyone has the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph and other messages. Restrictions on these rights in criminal proceedings can be allowed, only in cases and in the manner prescribed by the Criminal Procedural Code. Inviolability of residence Place of resident is inviolable. Penetration to the place of residence against the intention of owners, its inspection and search can be permitted only in the cases and in the manner prescribed by the law. Inviolability of property 1. Property is guaranteed by the law. Nobody can be deprived of his\her property, except by the court judgment or decision. 2. Deposits garnishment of individuals on banks and other properties, as well as its removal during the proceedings can be made in the cases and in the manner prescribed by the Criminal Procedural Code. Presumption of innocence 1. Everyone is presumed as innocent, until there is a proof of 195

his\her guilty, in terms of committing a crime, prescribed by the Criminal Procedural Code and has legal force of court judgment. 2. Nobody is obliged to prove his\her innocence. 3. Irremovable doubt or uncertainty on the guilt of defendant is construed in his\her favor. The doubts, which occur from application of criminal law and criminal procedural law, also have to be solved in favor of the defendant. 4. Judgment of conviction cannot be based on suggestions and must be confirmed by a set of sufficient credible evidence. Inadmissibility of repeated conviction and criminal prosecution Nobody can be subjected to repeated criminal responsibility, in terms of the same crime. Justice administration on the equality basis before the law and court 1. Justice is administered on the equality basis before the law and court. 2. In criminal proceedings, nobody can be subjected to any discrimination, in terms of their origin, social, official and property status, sex, race, nationality, language, attitude to religion, convictions, place of residence or any other circumstances. Independence of judges 1. Judge, in terms of the justice administration, is independent and subjected only to the Constitution of the Republic of Kazakhstan and the law. 2. Any interference in the judge activities, in terms of justice administration is inadmissible and violated by the law. For specific cases, judges cannot be accounted. 3. Guarantee of judge’s independence is established by the Constitution of the Republic of Kazakhstan and the law. Judicial proceeding’s administration on the basis of party’s competition and equality 1. Criminal proceedings are based on the principle of competition and equality between prosecution and defense. 2. Criminal prosecution, defense and adjudication by the court are separated and administrated by various authorities and officials. 3. The burden of proof (evidence) has to be presented to the defendant by the prosecutor. 4. Lawyer has to use all legal means and ways to protect the defendant. 196

5. Court cannot be considered as prosecuting authority, cannot be in the favor of prosecutor or defendant, and does not express any interest, except the interest concerning the law. 6. Court maintains the objectivity and neutrality, creates the necessary conditions for execution of procedural obligations and implementation of rights by the parties. 7. Parties, involved in criminal proceedings, are equal, i.e. have equal opportunities to defend their position. Court establishes procedural decision only on the evidence, which was observed on an equal basis by each of the parties. 8. Parties, in criminal proceedings approve their own position, methods and means of defending themselves, and regardless of the court, other authorities and individuals. Court on party’s petition can assist to obtain the necessary materials. 9. State and private prosecutor can execute the criminal proceeding of particular individual, or in the cases prescribed by the law, can refuse to execute the criminal proceeding. Suspected and accused person are independent to deny or confess their guilt. Civil plaintiff has the rights to refuse from his\her suit or make voluntary agreement with civil defendant. Civil defendant has rights to confess the suit or make voluntary agreement with civil plaintiff. 10. Court ensures to parties the investigation of proceedings on the first-instance and appeal; defendant and his\her lawyer can be admitted in the proceedings of cassation and supervisory procedures on newly discovered evidence or circumstances. Prosecutor must be submitted by the state or private prosecutor, considering the adjudication of each criminal case. Comprehensive, complete and objective investigation of the criminal case 1. The court, prosecutor, investigator, and inquirer must take all legal measures to comprehensive, complete and objective investigation of circumstances, which are necessary for the proper adjudication of case. 2. Prosecuting authorities reveal the fact data, which can be the basis of relevant to the case circumstances. 3. Court, which investigates the criminal case, maintaining the objectivity and neutrality, has to create the necessary conditions of 197

prosecutors and defendant right’s realization on full and complete investigation of the case circumstances. 4. Clarifications on case circumstances can be considered as incriminating and excusatory, also mitigating and aggravating his\her liability and punishment. Authority, who conducts the criminal proceedings, has to check all statements of innocence or lower degree guilt, and presence of evidences justifying the suspected, accused or mitigating their liability, as well as allegations on applying illegal methods of investigation during the case’s collection and consolidation as evidence. Evidence assessment on inner conviction 1. The court, prosecutor, investigator, inquirer assess the evidence, in compliance with their own beliefs, based on the aggregation of adjudicated cases, relying on the law and conscience. Juror assesses the evidence in compliance with their inner conviction, based on the aggregation of investigated evidence, also following their conscience. 2. None of the evidence has predetermined legal force. Providing of protection rights for suspected and accused person 1. Suspected and accused person is entitled to have protection. This right can be carried out both personally and through lawyer, who is legal representative. 2. Authority, who conducts the criminal proceeding, must explain to the suspected and accused person, their rights and ensure the opportunity to protect themselves from prosecutions using all means, which are not prohibited by the law, and to take protection measures of their personal and property rights. 3. Authority, who conducts the criminal proceedings, must ensure the participation of suspected and accused person, in the adjudication of case. 4. Participation of the suspected and accused person’s lawyer and legal representative in the criminal proceeding does not diminish the rights, which belongs to the latter. 5. Suspected and accused person cannot be compelled to testify, represent any information to the prosecuting authorities, and give them any assistance. 6. Suspected and accused person retains all guarantees of their protection rights on the criminal proceedings, in terms of accused person, who is considered as conspirator. 198

Acquittance from testimony obligation 1. Nobody is obliged to testify against herself\himself, wife (husband) and his\her relatives. 2. Priests are not obliged to testify against those who trusted them in confession. Ensuring the right to have qualified legal assistance 1. Everyone has the right to receive qualified legal assistance in criminal proceedings. 2. In the cases stipulated by the law, legal assistance is free of charge. Publicity 1. Adjudication of criminal case in all courts and court instances is executed openly. Limitation of criminal case publicity is permitted only when it is contrary to the protection of state secrets. Closed session of criminal case is allowed for a reasoned decision by the court, in cases of minor, sexual offences and other cases in order to prevent the disclosure of information about private life of people involved in the case as well as in cases where it is necessary for safety of victim, witness or other people involved in the case, as well as their family members or close relatives. In a closed session of criminal case also, it can be considered to resolve by the court at the pre-court complaints, in terms of the actions and decisions of the authority, who conducts the criminal prosecution. 2. Adjudication of cases and complaints in closed session has to follow all rules and regulations, in the manner prescribed by the Criminal Procedural Code. 3. Court's judgments and regulations, which were adopted on the case, in all circumstances have to be announced publicly. Language of criminal proceedings 1. Criminal proceedings in the Republic of Kazakhstan are executed on the official language, and if necessary in the criminal proceedings, equally with the official language, Russian or other languages can be used. 2. Authority, who conducts the criminal proceedings, if this is necessary to execute the case on Russian or other languages, makes a reasoned decision to change the language of proceedings. 3. Participants (involved people) in the case, who do not know or cannot speak enough in the language of criminal proceeding, they 199

have to be explained and provided by the right to make statements and complaints, give interpretations and submit petitions, get acquainted with the case, speak in court on their native language or other language they can speak; and use interpreter services at a free charge, in the manner prescribed by the Criminal Procedural Code. 4. Participants (involved people) of criminal proceedings have to be provided with free translation into the language of criminal proceedings, which is necessary for them by the law, in the case if it was set out in another language. Participants of the criminal proceeding have to be provided with translation into the language of interpreted pleading at a free charge. 5. Authorities, who are responsible for criminal proceedings, have to hand over documents of process, on proceeding’s language for participants (involved people). Particularly, for those who do not speak in the language of criminal proceedings, there have to be attached a certified copy of the document, which is set in the selected proceedings language by such person. Freedom appeal of procedural actions and decisions 1. Actions and decisions of court and prosecuting authority can be appealed, in the manner prescribed by the law. 2. Every convicted person has rights to readjudication of sentence by a higher court, as well as to seek pardon or mitigation of sentence. In terms of seeking pardon or mitigating of sentence can apply also person, who has been convicted by foreign state court and transferred to serve sentence in the Republic of Kazakhstan without conditions on the pardon nonuse. 3. Cannot be allowed complaints, which may cause damage to the complainant or detriment. Circumstances, which can exclude proceedings on case Criminal proceedings cannot be provoked, and criminal case has to be terminated, in the following cases: 1) for lack of crime evidences; 2) the absence of legally defined crime features; 3) as a result of amnesty act, if it eliminates the use of punishment for their actions; 4) expiry of limitation period; 5) in terms of a person, who has legally forced court sentence on the same accusation or another unrepealed judgment, which sets an impossible establishment of the criminal prosecution; 200

6) in terms of a person, who has the refusal of prosecution on same accusation and unrepealed determination of the criminal proceedings; 7) in terms of a person, who has committed an act prohibited by the criminal law in a state of insanity, unless these criminal proceedings necessary for the application of compulsory medical measures; 8) in compliance with the refusal to give consent from the authorized body or official on the person involvement to criminal responsibility, holding the privilege or immunity from criminal prosecution; 9) in terms of the deceased, except cases, when the proceedings necessary for the rehabilitation of the deceased or investigation concerning other people; 5. Administration of criminal proceedings Connection of criminal cases In one criminal proceeding, can be connected cases on the suspected or accused several conspirators, concerning the commitment of one or more offences, as well as the cases on accusation or suspicion of unpledged concealment or non-information of crime. It must not be connected in one criminal proceeding: 1) the same accusation on different people; 2) accusation, in terms of people, who imputed the crimes concerning each other, except when the case is private accusation; 3) cases, when one of the criminal proceedings are carried out in private, and another in public way; 4) all other accusations, when their connection may interfere with the objective investigation (adjudication) of case. Extraction of criminal case Court, the prosecuting authority may extract from criminal case the separate proceedings into another criminal case, in terms of: 1) certain defendants, when the reason of closed criminal case session, concerning the protection of state secrets, which refer only to them, but do not applied to the other defendants; 2) minor defendants, who were subjected to prosecution with adults; 3) certain unidentified people, who are subjected to criminal responsibility. Suspension of proceedings on criminal case Proceedings on criminal case may be fully or partially suspended by investigator or inquirer in following cases: 1) unidentification of person, who is subjected to prosecution; 201

2) when the accused person has been escaped from the investigation or the court, or he\she is recognized as whereabouts unknown for other reasons; 3) absence of real opportunities to participate (involve), concerning the accused person in the case of defendant’s immunity disposition from prosecution or extradition by foreign state; 4) temporary mental disorder or another serious illness of the accused person; 5) when accused person is not situated in the Republic of Kazakhstan; 6) force-majeure acts, temporarily prevents of further proceedings on the criminal case; 7) execution of relevant expertise; 8) nondetection of whereabouts unknown person. Termination of criminal case 1. Criminal case is terminated by the authority, who conducts the criminal proceeding. 2. Before the termination of criminal case, the suspected and accused person have to be explained about the reasons of termination and their rights for appeal, if they have opposites on these reasons. 3. In case of cancellation for criminal case termination, proceeding is resumed within the period of limitations for criminal responsibility. 4. If there is a termination or resumption of the criminal proceedings, it has to be notified in written form to the suspected and accused person, lawyer, and also victim, their legal representative, civil plaintiff, civil defendant or their representative, physical or legal entity, those people according to which the case was brought. Judgment copy on termination or resumption of criminal case, within 24 hours will be send to the prosecutor. Completion of criminal proceedings Criminal proceedings can be considered as completed: 1) if determination of proceeding on criminal case have been fully completed, and has entered on its legal force; 2) if sentence or other final decision on criminal case has entered to its legal force – and does not require the adoption of special measures to implement it; 3) if there is an approval of the sentence or other final decision’s 202

enforcement on criminal case – and requires the adoption of special measures to implement it. State authorities and individuals, who are involved in Criminal Procedural Court Court can be considered as the body of judicial authority, which administrates (conducts) adjudication of criminal cases. Any criminal case may be considered only through legitimate, independent, competent and neutral composition of courts, which ensure rule’s observance of the Criminal Procedural Code: ‒ determination of certain cases jurisdiction; ‒ formation of court’s composition to adjudicate certain criminal cases; ‒ disqualification of court; ‒ distinguishing functions of adjudication from functions of accusation and protection. Justice on criminal cases in the Republic of Kazakhstan is administrated by: the Supreme Court; regional and their equated (alternative) courts; district and their equated (alternative) courts; interdistrict specialized courts on criminal cases, interdistrict specialized military courts on criminal cases, interdistrict specialized courts on minors criminal cases, military courts of garrisons. Legal power of court 1. Legal power of court as judicial authority is defined by the law. 2. Only court has legal power to: 1) adjudge the person as guilty of offence and sentence him\her; 2) apply compulsory medical measures or compulsory educational measures; 3) cancel or modify the decision, which was taken by the lower court; 4) sanction the measures as house arrest , arrest and extend their terms, which was chosen by investigator, body of inquiry, the prosecutor, in terms of the accused and suspected person. 5) review judicial acts, in compliance with newly discovered evidence or circumstances; 6) make decisions on compulsory placement of person, who is not held in custody, to the medical organization for forensic psychiatric examination. 203

State authorities and officials, who administrate the functions of criminal proceeding Prosecutor Prosecutor – this is an official person, who executes within its competence, supervision over the legality of investigation and search operations, the pre-trial proceedings, inquiry, adjudication and court decisions, as well as criminal proceedings at all stages of the criminal procedure: the Prosecutor General of the Republic of Kazakhstan, the Chief military prosecutor, prosecutors of regions and their equated prosecutors, district and city prosecutors, military prosecutors, transport prosecutors and their equated prosecutors , their deputies and assistants, supervising prosecutors, senior prosecutors and prosecutors of department and administration offices. Prosecutor, who is involved in the administration of criminal case by the court, represents the state interests, in terms of giving assistance to accuser and can be considered as public accuser. Chief of Investigation Department Chief of Investigation Department – this is the head of investigative subdivision of authority, who conducts the preliminary investigation or pre-trial proceeding, and also his\her deputies, executing within their competence. Investigator Investigator – this is an official authorized person, who conducts the preliminary investigation or pre-trial proceedings on criminal case within their competition: special prosecutor, investigator of internal affairs, investigator of national security and investigator of financial police. Body of inquiry Bodies of inquiry, depending on the character of crime are responsible for: 1) adoption of necessary criminal proceedings and investigation and search operations, in order to detect, prevent and suppress features of crime and those who committed them, in compliance with statutory competence of the law. 2) implementation of criminal proceedings and investigation and search operations, in compliance with the law; 3) inquiry on cases, which doesn’t require preliminary investigation; Bodies of inquiry can be as following: 204

a) bodies of internal affairs; b) bodies of national security; c) bodies of financial police; 4) custom bodies ‒ in cases of smuggling and evasion from customs payments; 5) bodies of military police – on cases of all crimes, which were committed by military personnel undergoing on military conscription or contract in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan; citizens, who are in reserve, during the military duties execution; people of civilian military personnel units, formations, and institutions in terms of their duty execution or in the location of these units, formations and institutions. Bodies of National Security Committee military police ‒ also can be considered as for all crimes, which were committed by the special state bodies; 6) commanders of border guards ‒ in violation cases of legislation on the State Border of the Republic of Kazakhstan, as well as in cases of crimes, which were committed on the continental shelf of the Republic of Kazakhstan; 7) commanders of military units, formations, institutions and heads of military garrisons, in the absence of military police body, in all cases involving crimes, which were committed by the subordinates of military personnel undergoing military conscription or contract in the Armed Forces of the Republic of Kazakhstan , other troops and military formations of the Republic of Kazakhstan, citizens, who are in reserve, during the military duties execution; people of civilian military personnel units, formations, and institutions in terms of their duty execution or in the location of these units, formations and institutions. 9) Custodial Service of the President of the Republic of Kazakhstan ‒ on criminal cases, which were committed in the area of protection measures and directly intended at protected people, the list of which is executed by the law; 10) firefighting service agencies – on all crimes, which are related to the fires. Inquirer Inquirer – this is an official authorized person, who conducts the pre-trial criminal proceedings within their competence. 205

Participants (involved people) of proceeding, protecting their or submitted person’s rights and interests. Suspected person Suspected person can be considered as the person, who has criminal case with suspicion of committing this crime, or criminal judgment of his\her commitment, in compliance with the reasons and in the manner prescribed by Criminal Procedural Code. Accused person Accused person can be considered as the person, who has criminal judgment with the indictment, also the person, who has protocol of prosecution approved by the chief body of inquiry or the protocol of pre-trial proceedings by investigator. Accused person, who has prosecuted to the court, and on case of private prosecution, this person has the complaint accepted by the court and can be considered as ‒ the defendant; also accused person, who has excusable criminal judgment can be considered as acquitted person. Lawyer 1. Lawyer‒ this is a person, who conducts the protection of rights and interests of people who were considered as suspected or accused, and provide them with legal assistance, in compliance with the law. 2. The person, who protects the rights and interests of suspected or accused people can be defined as lawyer or advocate. Victim Victims in criminal proceedings can be considered as the person, who has the reasons and basis for believing that he\she directly suffered from crime commitment, in terms of moral, physical or property damage. Civil plaintiff Civil plaintiff can be considered as the physical or legal entity, which has the reasons and basis for believing that it has directly suffered from crime commitment, concerning the property damage, and hence this person sued for compensation. Civil plaintiff can sue for proprietary compensation of moral damage. Prosecutor has rights to determine the physical or legal entity as a civil plaintiff on its own initiative, in the manner prescribed by the law. Civil defendant Civil defendant can be considered as physical or legal entity, which is liable for harm caused by offence or the action of insane 206

person prohibited by the Criminal Code of the Republic of Kazakhstan, according to the lawsuit on criminal case. Other participants, who are involved in criminal proceedings Witness 1. As a witness, in order to testify can be called and questioned any person, who may be aware of any circumstances relevant to the case. 2. Cannot be testified as a witness: 1) court (judge) and juror ‒ on circumstances of the criminal case, which became known to them in connection with participation in criminal proceedings , as well as the discussion of questions relevant to the adjudication of criminal case in consultation room; 1-1) arbitrator or court referees ‒ on circumstances of criminal case, which became known to them in connection with implementation of their duties; 2) lawyer of suspected and accused person, as well as legal representative of victim, civil plaintiff and civil defendant and lawyer of witness – on circumstances which became known to them in connection with implementation of their duties in the criminal case; 3) priest ‒ on circumstances, which became known to them in confession; 4) person, who at the young age, or in terms of his\her mental or physical disability unable to correctly perceive the circumstances relevant to the case, and to give testimony on them. 5) mediator ‒ on circumstances, which became known to him\her in connection with the mediation, except the cases prescribed by the law; 6) participant of the national preventive mechanism – on circumstances, which became known to him\her in connection with the implementation of activities, except the cases that pose threat to national security. Expert Expert can be considered as a person, who doesn’t have personal interests in the criminal proceeding, and possesses special scientific knowledge. Specialist Specialist can be considered as a person, who doesn’t have personal interests in the criminal proceeding, and possesses special scientific knowledge, which can assist to collect information, 207

research and evaluate the evidence by explaining to the participants of criminal proceeding questions within his\her special competence, as well as application of scientific and technological means. Experts can be also educators, who are involved in investigative or other proceedings with participation of minor, as well as medical doctors, who are involved in the investigative and other proceedings, except the cases of his\her appointment as an expert. Translator Translator (interpreter) can be considered as a person, who doesn’t have personal interests in the criminal proceeding, and can speak in the language necessary for the translation, also involved in order to participate in the investigation and court proceedings, if the suspected person, accused person, their lawyers or the victim, civil plaintiff, civil defendant or their representatives, as well as witnesses and other participants in the process do not understand the language of criminal proceeding, moreover to translate written documents. Witness of arrest 1. Witness of arrest can be considered as person, who involved by the prosecuting authority to certify the fact of investigative action, its progress and results. 2. Witnesses of arrest can only be people, who don’t have personal interests in the case and don’t depend on the criminal proceeding authorities, citizens of adult age, who are capable to fully and properly understand circumstances of their present actions. 3. In proceedings of investigative actions, there can be involved (participated) at least two witnesses. Court session secretary Court session secretary can be considered as state officer, who doesn’t have personal interests on criminal case, and implements the protocol of court session. Bailiff Bailiff can be considered as an official person, who implements the fulfillment of statutory objectives, in order to ensure the established order of courts and enforcement of judgments. Mediator Mediator can be considered as an independent individual, who has been called by the parties for mediation in compliance with the law requirements. Preventive measures 208

Preventive measures can be considered as following: 1) subscription on house arrest and appropriate behavior; 2) personal surety; 3) soldier transfer under supervision of the military unit commander; 4) placing of minor under supervision; 5) bond security; 6) house arrest; 7) arrest. Other measures of procedural coercion: obligation to be present (appear); actuator; temporary removal from official duty; seizure of property. General conditions of the main court proceeding Directness and orality of court proceeding Invariability of court composition in the main court proceeding Participation of the defendant in the main court proceeding Participation of accused person in the main court proceeding Participation of the public prosecutor in the main court proceeding Participation of the victim in the main court proceeding Participation of civil plaintiff or civil defendant in the main court proceeding 1) Court – this is the judicial authority, who has any legally constituted court, involved in the judicial system of the Republic of Kazakhstan, and adjudicates the cases individually or collectively; 2) "the first-instance court" – this is the court, which adjudicates the criminal cases on the merits; 3) "appeal instance" – this is the court, which adjudicates the case on appeals (protests), in terms of non-enforceable sentences and sentences of the first-instance court; 4) "cassation" – this is the court, which adjudicates the cases on cassation complaint (protest), and has legal force sentences, and judgments of the first-instance court and appeal instance; 5) "supervisory instance" ‒ collegium of the Supreme Court of the Republic of Kazakhstan, which adjudicates the cases of supervision proceedings on petition and protest, and has enforced 209

court decisions, as well as plenary session of the Supreme Court of the Republic of Kazakhstan, considering submission of the Supreme Court Chairman, or protest of the Prosecutor General. Glossary Criminal procedure – уголовный процесс; Exposure – изобличение; Prosecution – привлечение; Administration of justice – осуществление правосудия; Assumption – присвоение; Arbitrarily change – произвольно изменяться; Criminal Procedural Code – Уголовно-процессуальный кодекс; Judicial remedy – судебная защита; Disseminate the information – распространение сведений; Detain – задержать; Custodial detention – содержание под стражей; Forensic-psychiatric examination – судебно-психиатрическая экспертиза; Preventive measure – меры пресечения; Penetration – проникновение (в дом, незаконно) Garnishment – наложение ареста (именно на вклады в банки) Presumption of innocence – презумпция невиновности; Construed – толковаться; Credible evidence – достоверные доказательства; Burden of proof – обязанность доказывания; Prosecuting authority – орган уголовного преследования; Petition – ходатайство; Assist – оказывать содействие; Suspected person – подозреваемый; Accused person – обвиняемый; Civil plaintiff – гражданский истец; Civil defendant – гражданский ответчик; Make voluntary agreement – заключить мирное соглашение; Incriminating – уличающие; Excusatory – оправдывающие; Mitigating – смягчающие; Aggravating – отягчающие; 210

Allegation – заявление; Juror – присяжный заседатель; Inner conviction – внутреннее убеждение; Latter – последний (из двух названных); Assistance – содействие, помощь; Conspirator – соучастник; Acquittance – освобождение; Pre-court complaints – жалобы досудебного процесса; Readjudication – пересмотр приговора; Serve sentence – передать для отбывания наказания (одно государство другому) Pardon nonuse – неприменение помилования; Complainant – подавший жалобу; Detriment – лицо, в интересах которого жалоба была подана; Provoke – возбуждать (уголовное дело); Amnesty act – акт амнистии; Unrepealed judgment – неотмененное судебное постановление; Unpledged concealment – не обещанное укрывательство; Impute – приписывать (совершение преступления); Extraction – выделение; Suspension – приостановление; Extradition – выдача, иностранному государству лица, совершившего престпуление); Force-majeure act – действия непреодолимой силы; Nondetection – не обнаружение; Judgment copy – копия постановления; Termination – прекращение; Resumption – возобновление; Completion – завершение; The Supreme Court – Верховный Суд; Garrisons – гарнизоны; Investigator – следователь; Investigation and Search operations – оперативно-розыскная деятельность; Pre-trial proceeding – досудебное производство; Inquiry – дознание; The Prosecutor General – Генеральный прокурор; 211

The Chief military prosecutor – Главный военный прокурор; Public accuser – государственный обвинитель; Detect – обнаружение; Suppress – пресечение; Smuggling – контрабанда; Evasion – уклонение (от уплаты); Military personnel – военнослужащие; Military conscription – призыв на воинскую службу; The Armed Forces – Вооруженные Силы; Troop – войска; Bodies of National Security Committee military police – Органы военной полиции комитета национальной безопасности; Commanders of border guards – командир пограничный частей; Subordinates – подчиненные; Custodial Service – Служба охраны; Firefighting service agencies – органы противопожарной службы; Indictment – возбуждение уголовного дела; Excusable criminal judgment – оправдательный приговор; Acquitted person – оправданный; Victim – потерпевший; Sue – предъявить иск; Witness – свидетель; Consultation room – совещательная комната (для вынесения судебных приговоров); Arbitrator – арбитр; Court referees – третейский судья; Mediator – медиатор; The national preventive mechanism – национальный превентивный механизм; Witness of arrest – понятой; Court session secretary – секретарь судебного заседания; Bailiff – судебный пристав; Subscription – подписка; Personal surety – личное поручительство; Military unit commander – командование воинской части; Bond security – залог; 212

House arrest – домашний арест; Procedural coercion – процессуальное принуждение; Actuator – привод; Seizure of property – наложение ареста на имущество; On the merits – по существу; The first-instance court – суд первой инстанции; Appeal instance – апелляционная инстанция; Cassation – кассационная инстанция; Supervisory instance – надзорная инстанция; Plenary session – пленарное заседание; Submission – представление. Control questions 1. What are the concept and structure of criminal procedural law? 2. Explain the content of Criminal court proceeding main principles. 3. What can be considered as pre-trial proceeding? 4. What is the essence and content of pre-trial proceeding? SECTION IV. INTERNATIONAL LAW Theme 15. Basics of international law 1. The concept and principles of international law

2. System of international law. 3. Concept and types of international law subjects. 4. Recognition in international law 5. Sources of international law

6. International law principles. 7. Concept of "the international organizations law" 8. United Nations Control questions to the topic 15 Scheme subject to 15 Annex 15 to the topic

1. The concept and principles of international law. Concept of international law and its features. International right – this is a system of principles and rules regulating the imperious order between states and other subjects of international communication. 213

The relations regulated by international right, can be as following: between states; between states and international intergovernmental organizations; between states and statelike formations between international and intergovernmental organizations. Norms of international right‒ the mandatory rules of subject’s activity and relationships, in terms of international right or other subjects. Range of international right subjects contains: the state, international intergovernmental organizations, nations and people struggling for their independence, and state like education. On the basis of the international rights definition, certain of its features can be highlighted. International right differs from national right as following: 1) On the subject of legal regulation. International right regulates the relationship of public policy and does not affect the relationship of a private character; 2) Circularly on subjects. International right has developed a special range of subjects; the question of assigning individuals to subjects of international right is debatable; 3) By norm-formation method. International right has a special conciliation procedure for the norms formation. Subjects of international right are directly involved in the process of norm-formation; 4) By the protection of standard methods. International right doesn’t have any supranational coercive apparatus. Subjects fulfill their international obligations on the basis of voluntary compliance with international right. 2. System of international law. System of international law – this is a set of interrelated principles and norms regulating international legal relations. System of international right includes, on the one hand, the general legal principles and legal norms, on the other ‒ the industry as a uniform set of rules and intrasectoral institutions. Thus, system of international right can be divided into the following categories: 1) generally recognized principles of international right, which constitute its core and has fundamental meaning to the international legal mechanism in order to regulate relations; 214

2) norms of international right are binding rules of relations between states or other subjects of international law; 3) general institutions of international right, which are specified functional set of rules. This is the institute of international right about international legal personality, international law-making, international responsibility, and the state succession; 4) branches of international right, which are the most important structural units of international right, regulating the most extensive field of public relations. Ratio of international right with national right and international private right International right and national right does not exist in isolation from each other. In compliance with norm-setting activities, international right is affected by system of national right. International right, in turn, affects the national legislation as well. In some countries, international right is an integral part of national legislation. Public international right and private international right, although they have different regulation objects, but still have common touchstones. Private international right establishes general mandatory rules of behavior and relationships for the involved people in international non-state relations. However, these rules are found not only in national right, in terms of jurisdiction over a physical or legal entity, but also in international treaties and international customs. Private international right, as a set of legal norms, regulates international relations of civil character. However, the regulation of these relationships should not violate the international rights. International agreements, which regulate civil relations, in many cases are made in order to develop interstate agreements. Present day, the ratio of international right and private international right is characterized by convergence and interpenetration. Modern international right is characterized by the scope expansion of application. 3. Concept and types of international law subjects. Subject of international law ‒ this is the involved person in relations, regulated by norms of international right, which can provide these rights and obligations. As a general rule, subjects of international right includes: state, international intergovernmental organizations, nations and peoples struggling for their independence, and statelike education. 215

International legal personality – this is a set of rights and duties of international right subjects, which are provided by international right norms. International legal existence of state State as the main subject of international right has three basic features, such as territory, population, and sovereignty. International and internal aspects of sovereignty can be distinguished. International aspect means, that at the international level all actions of state bodies and officials are seen as state action in general. Basic rights of the state: the right to sovereign equality, the right to selfdetermination, the right to participate in international organizations, the right to establish the rules of international right. The main obligations of the state: to respect the sovereignty of other states. International legal personality of nations and people, struggling for their independence, has objective characteristics. Nations and people, struggling for their independence, have the right to be protected by international right, the right to use coercive measures against entities that impede people to gain their independence, the right to participate in international organizations and make international agreements. International legal personality of international intergovernmental organizations. Statute – these are constituent documents of international intergovernmental organizations, which establish a certain organizational structure that defines the goals, objectives, and competence. General international legal status of an international intergovernmental organization is eligible to participate in the creation of international right, and the right of organizations to use certain powers. 4. Recognition in international law Recognition of states and governments Recognition in international law – this is a unilateral legal act of state or any other subject of international right, which can ascertain some legally significant fact or situation in the international community and recognize its legitimacy. Act, which is opposite to the recognition, can be called as the protest. It expresses disagreement with the legality of one or another particular action. When there is an emergence of the national liberation movement, the movement and resistance of the aggressors, 216

the recognition of belligerent and insurgency status in conflicts of instate, all of these things can be acquired as substantial legal meaning of recognition or protest in terms of these cases. Recognition of state can happen, in the case of the new independent states emergence, as a result of the revolution, war, union or separation of states, etc. The main criteria for recognition: the new state’s independence and self ‒ dependence in terms of state power implementation. In theory, international right has two basic concepts of institution acknowledgement in terms of the state recognition: 1) constitutive, suggesting that recognition has the lawmaking value; 2) declarative, suggesting that recognition only confirms the emergence of a new subject. There are three main forms of state recognition: 1) de-jure ‒ complete and final recognition, entailing the establishment of diplomatic relations, and expressed in the form of official statement or commitment of any conclusive action; 2) de-facto ‒ incomplete preliminary recognition; 3) ad-hoc – can be identified as a specific kind of recognition. International right does not set obligations for recognition. Recognition is always an act of recognizing state’s goodwill. International law is known as the cases of recognize refusal. In some cases, recognition is generally unacceptable. 5. Sources of international law. Sources of international law – this is a form of international legal norm’s existence. International law, defines two main types of sources: international treaties and international custom. However, along with these major quarries of international right, acts of international organizations and international conferences and meetings also can be highlighted as well. Such acts are quarries of international right, only in the case if they establish binding rules of conduct for the international organizations themselves or other subjects of international right. Moreover, there is the concept of "soft right", which includes acts of recommendatory characteristics or software settings of international bodies and organizations, which primarily refer to acts (resolutions) of UN General Assembly. 217

International Court of Justice Statute has lists of international right quarry, on the basis of which the court must resolve disputes. It can include following things as: 1) international conventions, whether general or particular, which establishes rules expressly recognized by the contesting states; 2) international custom, as evidence of a general practice accepted as legal norm; 3) general principles of law recognized by civilized nations; 4) judicial decisions and doctrines of highly qualified specialists on public statute of the various nations , as subsidiary means for the determination of right norm rules. International agreement ‒ an agreement between states or other subjects of international right in written form, which contains the mutual rights and obligations of parts, regardless of whether they are contained in one or more documents, and whatever its specific name. International custom ‒ it is evidence of a general practice, accepted as legal norm. International custom becomes a quarry of rights as a result of long-term repeatability, i.e. sustainable practice ‒ is the traditional base of the custom recognition as a quarry of law. There can be the implementation of customary in a short period of time. Acts of international conferences include a contract of the conference activities, created specifically for the development of an international treaty that has been ratified and put into effect. Acts of international organizations include the acts of the UN General Assembly. 6. International law principles. International law identifies a number of principles. 1. The principle of states sovereign equality. It can be the initial beginning of international right, which combines two important features: the sovereignty and equality with other states. This principle implies that states are judicially equal, use the rights of full sovereignty in order to respect the state’s legal existence, territorial integrity and political independence of states are inviolable , every state has the right to freely choose their political, economic and social system, and each state is obliged to fully and voluntarily fulfill its international obligations. 2. The principle of non-use or threat of force. Every state has to refrain in their international relations from the threat or use of force 218

against the territorial integrity and political independence of other states. 3. The principle of non-interference to the internal affairs of other states. None of the state or group of states has the right to intervene directly or indirectly, by the internal or external affairs of other states. None of the state has the right to promote or encourage the use of such measures, which are aimed at the subordination of one state to another state. 4. The principle of international dispute’s peaceful solution. According to this principle, states are obliged to resolve their disputes by peaceful means in order not to endanger international peace and security. 5. The principle of conscientious implementation of international obligations. 6. The principle of international cooperation of states. States have an obligation, regardless of differences in their political and economic systems, to cooperate with each other in order to maintain international peace and security, promote economic progress in the world. 7. The principle of equal rights and self-determination of people. All people have the right to freely determine their political status and to pursue their economic and cultural development, to freely decide on the establishment of their state. 8. The principle of states territorial integrity. States must renounce the violent territory division of other states, separation of its any parts, as well as the right of every state to dispose freely of its territory. 9. The principle of boundaries inviolability. States must renounce any territorial complaints and be agree with the existing territorial distribution in the world. 10. The principle of respect for human rights and freedoms. Concept of international agreement rights and international rights International agreement rights are considered as the branch of international rights and ratio of right norms, governing legal relations of international rights subjects and regulating the execution, implementation and termination of international agreements. International agreement rights are the fundamental branch of international rights, development of international rights can be impossible without it, because with a help of international agreement 219

rights between states, the relationship of these states are governed in various spheres of public life. The main sources of international agreement rights can be as following: The Vienna convention on the international agreement rights from 23 May, 1969 year; The Vienna convention on the international agreement rights between states and international organizations or between international organizations themselves from 21 March, 1986 year. The appearance of international intergovernmental organizations and their increasing role in international rights entailed agreements between these organizations and between international intergovernmental organizations and states, on the world stage. Hence, a large number of international agreements come in sights. The main element of the international agreement rights is an international agreement. According to the Vienna convention on the international agreement rights from 23 May 1969 year, international agreement‒ this is an agreement, which is regulated by international rights, and made by states and other subjects of international right in written form, regardless of whether the agreement is contained in one, two or more interconnected documents and despite its specific name. International agreements are classified by range of involved entities into the bilateral and multilateral. In bilateral agreements, there are two states involved, and in multilateral agreements, there should be the involvement of all or a limited number of states. These kind of international agreements are universal. International agreements can be open or closed. In open international agreements can be involved any state, regardless of the other states or international agreement member’s consent. In closed international agreements can be involved only those who have received consent from the other involved ones. Structure of the international agreements includes such components as the name of the agreements, preamble, main and final part, and signature of involved part. 7. Concept of "the international organizations law". International organizations right‒ this is the branch of international right, including principles and norms, which regulates the questions of international organizations create and functioning. 220

The principles of the international organizations right include: 1) compliance with the international organizations create and generally recognized principles of international right; 2) international organizations responsibility for the offences; 3) voluntary membership in international organizations. Constituent acts of international organizations – these are international agreements or decisions of international organizations, which determine the legal characteristic of organizations, as well as rights and obligations. The constituent act of international organization specifies the purposes and principles, full powers and organizational structure, also operating procedures of international organizations. Constituent acts of international organizations indicate the derivative characteristic of international organizations. Hence, the following features of international organizations can be emphasized: 1) international organization is established by sovereign states ; 2) international organization establishes and operates under the constituent agreement; 3) international organization is constant unit and has permanent aid agencies; 4) international organization has a certain set of rights, that are inherent to legal entity; 5) international organization respects the sovereignty of member states. The UN Statute is a fundamental basis for the entire international organizations. International organizations can be intergovernmental and nongovernmental. Non-governmental organizations are not subjects of international right. International organization – this is an association of sovereign states, which is established by international agreement on a permanent basis, having a permanent executive bodies, endowed with international legal existence, and acting to achieve common goals in accordance with the principles of international right (United Nations). Non-governmental international organization – this is an organization established not on the basis of international agreement, it combines physical and (or) legal entities (the League of Red Cross). 221

Types of international organizations: 1) by the membership characteristic: a) intergovernmental; b) non-governmental; 2) by the range of participants: a) universal; b) regional; c) inter-regional; 3) by the competency: a) general; b) special; 4) by the full power characteristic: a) interstate; b) supranational; 5) by the method of organizational admission: a) open; b) closed. 8. United Nations. United Nations – this is a universal international organization, which is established to maintain peace and international security, development of cooperation between states. United Nations operates on the basis of the constituent act ‒ the UN Statute, accepted in San Francisco and was enacted on October 24, 1945 year. According to the UN Statute, it has following purposes: 1) maintaining of peace and international security; 2) development of friendly relations among nations based on the principle of equal rights and national self-determination; 3) cooperation in order to solve international problems of an economic, social, cultural or humanitarian character; 4) promoting and encouraging the respect for human rights and main freedoms for all without irrespective of race, sex, language or religion; 5) negotiation of the national actions in order to achieve common goals. Members of the UN Statute can be any peace-loving states which accept the obligations under the UN Statute and that, from the 222

organizations point of view, states, which are able and willing to carry out these obligations. In order to be admitted to the UN membership, state needs recommendation from the UN Security Council, which was accepted by no less than 9 votes, including the concurring votes of the UN 5 permanent members, and the UN General Assembly conscience clause, rendered two-thirds of those present and voting states. In the case of systematic violations of the UN Charter principles, member state may be excluded from the organization. The UN Charter provides for principle organs of the organization, such as: the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), the Trusteeship Council, the Secretariat and the International Court. The UN General Assembly is composed of all UN members. It is endowed with wide competence, empowered to consider any matter within the UN Charter and make recommendations to the member states and the UN Security Council. The UN Security Council implements the main function of maintaining international peace and security. It acts on behalf of all member states. Member states are obliged to obey the decisions of the Security Council and execute them. The Economic and Social Council of UN executes following functions: rising of living standards, resolution of international problems in the field of economy, culture, and the promotion of universal respect and observance of human rights. UN Secretariat ‒ the main technical and administrative body of the UN. International Court of UN is composed of 15 independent judges, elected regardless of their nationality, who are lawyers of recognized competence in international right. Glossary International right – международное право; National right – внутригосударственное право; Intergovernmental – межправительственное; Statelike – государство подобные; Struggle – бороться; Legal regulation – правовое регулирование; 223

Public policy – публичный порядок; Circularly on subjects – по кругу субъектов; Norm-formation method – способ норм образования; Conciliation – согласительная процедура; Supranational coercive apparatus – аппарат надгосударственного принуждения; Intrasectoral – внутриотраслевые; Binding rules – общеобязательные правила; Integral part – составная часть; Touchstones – точки соприкосновения; International treaties – международные договора; International customs – международные обычаи; Convergence – сближение; Interpenetration – взаимопроникновение; Scope expansion – расширение сферы; International legal personality – международная правосубъектность; Coercive measures – меры принуждения; Impede – препятствовать; Statute – учредительный документ; Eligible to – иметь право; Recognition in international right – признание в международном праве; Ascertain – констатировать, доказывать; Aggressors – агрессор; Belligerent status ‒ воюющий статус; Insurgency status – статус восставшей стороны; Instate – внутригосударственный; Constitutive – конститутивная; Lawmaking value – правообразующее значение; Declarative – декларативная; Entail – влечь, вызывать; Sources of international right – источники международного права; Soft right – мягкое право; UN General Assembly – Генеральная Ассамблея ООН; International conventions – международные конвенции; Subsidiary – вспомогательное; 224

Refrain – воздерживаться; Intervene – вмешиваться; Subordination – подчинение; International agreement rights – право международных договоров; The Vienna convention – Венская конвенция; International organizations right – право международных организаций; Constituent acts – учредительные организаций; Derivative characteristic – производная природа (международных организаций) Constant unit – постоянно действующая; Aid agencies – аппарат постоянных органов; The UN Statute – Устав ООН; The League of Red Cross – Лига обществ Красного Креста; Organizational admission – прием в члены организаций. Control questions 1. What can be considered as international law? 2. How the principles of international law can be classified? 3. Tell about the principles, which are aimed at maintenance of peace and safety. 4. What principles of international law can be applied to the category of general principles? 5. What educations can be considered as subjects of international public law? 6. What are the main sources of international law?

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Учебное издание

Kabanbaeva Gulbakyt Boribekovna

THE BASICS OF LAW Education manual Выпускающий редактор Г.С. Бекбердиева Компьютерная верстка Т.Е. Сапарова Дизайн обложки: Р.Е. Скаков

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