Kazakhstan’s Model of Constitutional Oversight Meets Citizens’ Expectations for Equality, Dignity and Justice, Says Court Chair

ASTANA – Asia Law Portal published an interview with Elvira Azimova, Chair of Kazakhstan’s Constitutional Court on Aug. 29. 

Constitution Day on August 30 in Kazakhstan is recognized as a national holiday. Next year will mark the 30th anniversary of the adoption of the current Constitution through a nationwide referendum.

Kazakhstan’s Constitution has been amended several times, most recently in June 2022, with the aim of expanding citizens’ rights to participate in governance, advancing political modernization, and enhancing the protection of human rights. The referendum was a vivid example of the people’s will. As a result, the President’s powers were reduced, the role of Parliament and local governments was significantly strengthened, the death penalty was completely abolished, the Constitutional Court was reinstated, and the tasks of the Ombudsman for Human Rights were enshrined.

Below is the Q&A with Elvira Azimova. 

How relevant and necessary do you consider the role of the Constitutional Court in the modern human rights context?

All laws and other normative legal acts adopted in the state should not only comply with the Constitution but also be organically connected to and dependent on it, thereby creating a favorable legal environment for the sustainable development of the state and society.

More than 120 countries have established constitutional courts or equivalent bodies responsible for constitutional oversight to ensure the supremacy of the Constitution and prevent contradictions with other laws and acts. In most constitutional courts, citizens have the right to directly appeal to these bodies to verify the constitutionality of laws, executive acts, international treaties, and, in some cases, local government acts. International experience shows that constitutional courts, beyond resolving legal disputes related to constitutional supremacy, are intended to ensure the continuity of constitutional processes, fill legal gaps, eliminate legal contradictions, and elevate the level of constitutional and legal culture.

Thus, the re-establishment of the Constitutional Court of Kazakhstan was one of the key decisions of the 2022 constitutional reform. This body of constitutional oversight, independent of the three branches of government (legislative, executive, and judicial), strengthens the established system of checks and balances through its activities. Today, citizens have access to the Constitutional Court. The Ombudsman for Human Rights, the General Prosecutor, and courts can also appeal to the Constitutional Court in the interest of the majority and to uphold constitutional legality. The national model of constitutional oversight meets citizens’ expectations regarding equality, dignity, and the achievement of lawful justice.

Could you please describe which constitutional rights are most frequently violated according to citizens’ complaints in Kazakhstan, what the most common issue is, and whether these violations can be considered widespread if over 7,000 people have submitted complaints to the Constitutional Court?

Since January last year, the Constitutional Court has received over seven and a half thousand citizen appeals. Based on these appeals, we issued 252 normative resolutions, including 49 final decisions on the constitutionality of legal norms and regulatory acts, as well as interpretations of constitutional provisions. However, this does not indicate widespread violations. It would be more accurate to describe it as specific citizens’ dissatisfaction with the legal decisions of state bodies and officials, where a lack of adequate response from state bodies or insufficient legal awareness led to appeals to the constitutional oversight body. In their appeals, citizens reasonably challenge the lack of fairness, proportionality, and legal certainty in the adoption or application of normative legal acts. Citizens’ trust in the new institution is reinforced by the implementation of decisions made by the Constitutional Court. The role of the prosecution, courts, and professional legal communities is crucial in this regard.

Firstly, this primarily concerns the Constitutional Court’s final decisions declaring a law or other normative legal act unconstitutional, which are annulled and cease to be applied from the date of the corresponding final decision of the Constitutional Court. Secondly, it pertains to legal norms that were interpreted by the Constitutional Court in accordance with the Constitution and must be applied from the date of the corresponding final decision unless another date is established. Thirdly, when the Constitutional Court concludes that a legal norm complies with the Constitution, it formulates legal positions and provides recommendations to the Government and state bodies for improving legislation to ensure clarity, uniformity, and legal certainty. This is particularly necessary regarding legal norms that establish restrictions, prohibitions, and obligations.

As is known, any citizen, including the General Prosecutor, the Ombudsman for Human Rights, and the President, can appeal to the Constitutional Court. Have state representatives made appeals to the Constitutional Court?

The President, the Supreme Court, and other courts, as well as members of Parliament, have indeed appealed to the Constitutional Court to verify the constitutionality of adopted and existing laws. The General Prosecutor and state bodies have also appealed for official interpretations of certain constitutional provisions and for additional interpretations of previously adopted decisions of the Constitutional Council. For example, at the request of the General Prosecutor, an official interpretation was provided on the constitutional provision regarding the prosecutor’s competence to represent the state’s interests in court while exercising supreme supervision over the legality of pre-trial investigations, as well as the constitutional provisions stating that “deprivation of housing is not allowed except by court order” and “no one may be deprived of their property except by court order.”

In June of this year, you delivered an address to Parliament regarding the state of constitutional legality in the country. Could you elaborate on the key aspects of your address? What measures should be taken by state officials to address the issues raised?

In accordance with Article 53 of the Constitution of the Republic of Kazakhstan, the Parliament, at a joint session of its Chambers, listens to the annual address of the Constitutional Court on the state of constitutional legality in the Republic. The first annual address was prepared based on an analysis of the results of preliminary consideration of received appeals, a review of final decisions, and monitoring of their implementation.

The Constitutional Court recommended that the Government, the Supreme Court, the Higher Judicial Council, and other state bodies develop and introduce legislative amendments on the following points:

– Elimination of legislative gaps regarding the payment of state fees when filing lawsuits (including reduction of amounts, deferrals, installment payments, etc.).

– Clarification of the competencies of state bodies at different levels within the framework of administrative decentralization.

– Strengthening measures to implement the social rights of citizens, particularly those affected by nuclear testing.

– Improving procedures and criteria for evaluating judges’ professional activities.

– Clarification of the legal regulation of the status of witnesses with the right to protection.

– Ensuring access to the cassation instance regardless of the type of criminal offense and category of crimes.

– Comprehensive definition and delineation of the characteristics of criminal offenses related to business, banking (banking operations), microfinance, or collection activities.

– Additional clarification of judicial practice in dealing with corruption crimes, especially those involving various forms of fictitious mediation in bribery.

– Adjustment of provisions on compensation for moral damage.

– Differentiation of measures to prevent administrative offenses related to driving while intoxicated.

– Updating the list of corruption crimes in line with the goals and objectives of state anti-corruption policy.

In light of the widely discussed issue of building a nuclear power plant, I would like to highlight the relevance of the Constitutional Court’s final decision on the existing law concerning social protection measures for citizens affected by nuclear testing at the Semipalatinsk Nuclear Test Site (normative resolution of September 25, 2023, No. 30-NP). In this decision, the Constitutional Court recommended that the Government study and propose new principles and approaches to social protection for this category of people, taking into account the modern radioecological situation in contaminated areas, as well as social, environmental, demographic, medical, and other factors.

Elvira Azimova is the Chair of the Constitutional Court of Kazakhstan. Azimova previously served as the Commissioner for Human Rights.

The article was originally published in the Asia Law Portal.