*112202*
Law
Doctor of Laws Balabiev Kayrat
Peoples' Friendship
University
The rights
and liberties of citizens of the Republic of Kazakhstan within the system of
the administrative-tortious relations
The
Constitution of Kazakhstan, during the years of independence, established its
efficiency, democracy and orientation to the defence of the rights and
liberties of the citizens for several times. The Constitution of our country,
which was adopted in 1995 at the republican referendum and amended in 2007, established
aims, tasks, and principles for the development of a new government within the
Former Soviet Union. Accordingly, the most important aspects of the
Constitutional provisions are realized, where the Republic of Kazakhstan
approves itself as the democratic, humanistic, legal, and social government.
The
human rights and liberties, in accordance with Clause 12 of the Constitution of
the Republic of Kazakhstan, are the superior value: “The human rights and
liberties belong to everyone from birth, are considered absolute and
unalienable, determine the content and application of laws as well as other
normative legal acts”. The law determines that everyone has the right to
acknowledgment of his honour and dignity: “The dignity of human is
indefeasible”, Clause 17, also to the defence of honour and dignity from the
part of the governmental authorities of the Republic of Kazakhstan as well as
the local self-government: “Nobody shall not be subjected to torture, violence,
another abusive or humiliating treatment or punishment”.
Clause
78 of the Constitution of the Republic of Kazakhstan establishes: “The courts
shall not be entitled to apply laws and other normative legal acts derogating
the rights and liberties of the people and citizens specified by the Constitution.
If the law detects that the law or another normative legal act subject to
application shall derogate the rights and liberties of the people as well as
citizens specified by the Constitution, he/she shall be liable to suspend the
proceedings and seize to the Constitutional Council by presenting on
acknowledging this act unconstitutional”. The formation of the law-governed
state, establishment of the effective institute of the state power at the
modern stage of the history of the Republic of Kazakhstan make favourable
conditions for the provision of the realization of the human rights and
liberties as the activity base for all authority branches. The human rights
take the central place within the general system of values. Their priority and
importance are not subjected to impeachment, their roles and assignments are
known. The United Nations Charter encourages respect and observance of human
rights as well as major liberties. The Universal Declaration of Human Rights
shall proclaim that all people are born free and equal in their dignities and
rights [1].
One
must agree with the opinion of B.A.Kistyakovsky that the realization of many
functions of the government shall imply the protection of human rights in all
spheres described by the Constitution and laws. The Government shall become
legal when the principle for the existence of the personality is established
regardless of the government, which has the priority before it [2].
Effective
defence and realization of the whole complex of the rights and liberties
belonging to the Kazakhstani citizen may be observed exclusively in case of
unswerving observance of principle of legality, including the authorities of
the internal affairs. The authorities of the internal affairs are the entities
of the application of rules of the legislation of the Republic of Kazakhstan on
administrative violations. The problem concerning the provision of the
citizen’s rights while assigning administrative punishment by the authorities
of the internal affairs is based upon the issues on the role and place of the
defence of the citizen’s rights within the sphere of the
administrative-tortious relations. Therefore, first of all, it is required to
study the role and place of the defence of the citizen’s rights within the
general system of public relations based on the clarification of the meaning
and content of the citizen’s rights as the subject of the
administrative-tortious relations. The meaning and content of the citizen’s
rights have ambiguous definition and interpretation. The legal science
acknowledges that the human rights are the complex phenomenon of the public
relations. The Russian Legal Encyclopedia gives the following meaning to the
term “the human rights”: the meaning “human” itself characterizes the legal
status of human in relation to the government, i.e., his capabilities and
challenges within the economic, social-political, and cultural spheres [3].
According
to Yu.A.Zankina, such characteristics of the human rights are not complete.
Firstly, the conception of the human rights relies upon the fact that the
human’s and citizen’s rights encourage to serve to “defence” of the human from
the state power, i.e. to eliminate the possibility of the arbitrary behaviour
and broad interpretation of the state enforcement, while applying the rules of
the administrative and tortious legislation. Secondly, the defence of human
rights while applying the enforcement measures specified by the administrative
and tortious legislation is secondary in relation to the defence of human rights
and liberties within the system of the general legal relationship. Thirdly, the
human and citizen’s rights and liberties obtain various contents.
On the
one part, they provide everybody the possibility to operate within the limits
of the specified laws, i.e. to carry out own authorities provided by the laws
of the country for the realization of major constitutional principles,
maintenance of scientific, economic, business, and other kinds of activities.
On the
other part, the rights and liberties provide everyone the defence from the part
of the government. The government as the warrantor and entity for the provision
of these capabilities shall make the procedure for respect of honour and
dignity of the citizen. The constitutional regulation of the human rights shall
be formed in every country under the influence of such factors as the
historical and state traditions; the level of the economical development,
admitted and accepted conception of the individual rights for the society, the
level of the public consciousness within the political and legal spheres.
Everything shall lead to the difference between the separate countries within
the content of the individual rights, their regulation methods, and selection
of mechanisms for their protection [4].
Implementation
of the human rights and liberties is one of the features of the legal
government. One must agree with the confirmation that, in terms of any
democratic establishment, the citizen’s rights and liberties, their liabilities
shall make the social, political, and legal institute impartially acting the
standard for the achievement of the society, the indicator of its maturity, and
civilization. Accordingly, from the one part, this institute is the means of
access of the individual to spiritual and material benefits, the mechanism of
power, legal forms of intention, implementation of own interests. On the other
part, this is the advance of the individual, consolidation of status and
dignity [5].
The
human rights and liberties shall not be stipulated by the government, and shall
be initial in relation to him as well as bear natural character. But they may
not exist as the abstract category – they shall be determined and specified by
different normative acts according to the levels. Accordingly, the rights and
liberties are the special legal phenomenon, which exists and is expressed not
only under the normative and legal acts of one government, but also within the
rules of the international law. The division of the rights and liberties of
human and citizen is specified by the Constitution of the Republic of
Kazakhstan.
Let us
consider the rights and liberties within the administrative-tortious relations,
mainly while applying the administrative enforcement measures due to the fact
that the citizen’s rights cover the relations of the individual person with the
government and arise from the citizen’s institute in accordance with the Clause
10 of the Constitution of the Republic of Kazakhstan. These are the political
rights in accordance with Clauses 33-39 of the Constitution of the Republic of
Kazakhstan, the right of ownership as per Clause 26 of the Constitution of the
Republic of Kazakhstan. While considering the correlations of concepts “rights”
and “liberties”, almost all rules determining their content (both constitutional
and international legal) shall contain both of these terms.
There
are various points of view in the science concerning their meaning and
correlations. For instance, Ye.A.Lukasheva points out that the rights and
liberties are similar according to their legal nature as well as the warranty
system: they both define the social, economic, and other capabilities of human
body within various spheres provided by the government almost in similar way,
i.e. the term “liberty” is appealed to provide much wider capabilities of the
selection, as well as the term “right” is the concept characterizing the legal
status of human body in relation to the government, his capabilities and
aspiration within the economic, social, political, and cultural spheres, and
also determines the specific actions of the human body (for instance, the right
to participate in the management of the government’s deals) [6].
According
to A.Ya.Azarov, the term “liberty” implies the spheres, where the government
shall not interfere, but shall provide their defence, and under the term
“rights” – the legal power within a specific sphere, within the actions of
which no variants exist, except for the variant to use or not to use [7].
Accordingly,
the right is the liberty specified by the legislative framework of the
government to operate within the sphere of certain legal relationships, i.e.,
the implementation of the legal power within the framework of certain legal
personality of the individual person. The Large Encyclopedic Dictionary contains
the definition that “liberty” is the capability of the human body to operate in
accordance with his interests and purposes, to carry out selection, due to the
fact that people are not free in the selection of objective conditions of own
activity, but they own specific and relative liberty when they preserve in the
selection of the aims and means of their achieving by the sanctioning norms as
well as values of this society. Human rights have natural environment and are
integral from the individual person, they are not limited by the areal or
national frames, exist regardless of the consolidation within the legislative
acts of the government, and are the object of the international and legal
regulation and defence.
Major
rights and liberties specified by the Constitution of the Republic of
Kazakhstan operate directly. The Government hereby specifies the mechanisms as
well as legal means of recognition, provision, and legal protection.
Investigation of the human rights protection within the sphere of the
administrative-tortious relations demand the consideration of issues concerning
the typology of the human rights as a whole and those, which are subjected to
the administrative and legal protection. Standard classification of the human
rights consists of their division into the absolute and relative ones. Absolute
rights are such rights as the right for life, the right not to be subjected to
tortures, violence, human degrading treatment, the right to the privacy,
personal and family secrets, protection of own honour and good reputation, the
right of conscience, religion, and the right for judicial defence, fair justice
as well as procedural laws connected with them. The relative rights cover those
rights whose limitation is possible under the cases specified by the law, for
instance, in terms of special administrative procedures.
While
introducing the emergency state, in accordance with Clause 15 of the Law “On
emergency” dated 08.02.2003 under No.387, it is specified: limitation to the
liberty of movement, including the vehicles within the areas, where the
emergency is introduced; limitation to the entrance to the place, where the
emergency state is announced or to the territory of the Republic of Kazakhstan,
and departure from it; suspension of the operations of legal entities where
explosive, radioactive, and chemically and biologically hazardous substances
are used; reinforcement of the protection of public order, protection of
high-security state and strategic objects as well as objects providing the vital
activity of the population and transportation operation.
Clause
1 of the mentioned above Law specifies that the emergency state is the
temporary arrangement employed exclusively with the interest of security
assurance of citizens and defence of the constitutional order of the Republic
of Kazakhstan and presenting special legal order of the activity of the state
bodies, companies enabling to specific limitations to the rights and liberties
of the citizens, foreign citizens, and stateless persons, and the rights of
legal entities as well as additional liabilities imposed on them.
In case
of introducing the emergency state the Law specifies the limitation to the
implementation of certain kinds of financial and economic activity of the
physical and legal entities including the physical flow of goods, services, and
financial funds in accordance with Clause 16.
The
religious references contain the information concerning the division of the
rights to political, economical, social, and cultural ones. The civil rights
are the rights for life, dignity, liberty and personal inviolability, defence
from tortures, slavery, and compulsory work; the right for equality before the
court and the law, including the right for fair judicial examination; the right
for liberty of thought, conscience, and religion, liberty of discussion; the
right for information proclaimed by Clauses 14-16, 17, 20-25 of the
Constitution of the Republic of Kazakhstan [8].
The
political rights cover: the right to a nationality, the right to be involved in
the management of the government deals, including the right to elect and be
elected, the right of the access to the state service, participation in the
administration of justice; the right to be combined, maintenance of meetings,
marches, and demonstrations. The economical rights are specified in Clauses
24-26, 28 of the Constitution of the Republic of Kazakhstan. The social rights
comprise of the rights to the motherhood protection; social security services;
medical aid and health protection; the right for education, leisure, and to the
information contained in Clauses 24, 27-28, 29-30, 31 of the Constitution of
the Republic of Kazakhstan. The cultural rights consist of the right for using
mother tongue and culture, free choice of communication language, parenting,
education, and creative work, Clause 19, the right to liberty in discussion and
creative work in accordance with Clause 20 of the Constitution of the Republic
of Kazakhstan.
The
Constitution of the Republic of Kazakhstan stipulates in Clause 39 the
possibility to the number of limitations to the rights of the citizens only
within the requirement limits with the aim of protection of the constitutional
order, protection of public order, rights and liberty of human, health, and
morality of the population. Even in terms of the emergency state, the
limitation of such rights and liberties are not allowed as the right for life;
personal dignity; personal privacy, honour, and dignity, liberty in religion,
and business activity; the right to housing, to judicial protection.
The
nature of many constitutional rights and liberties being integral from the
human body makes inapplicable any active legal operation of the citizen
directed to be received. Only, if required, the citizen himself takes active,
legally important actions concerning the protection of his own constitutional
rights and liberties. The question in this case is exclusively about the legal
aspect of the defence of own rights and liberties by the person. Regardless of
the fact that in everyday cases, the person himself by following the instinct
of self-preservation and common sense constantly takes care on his own rights
and liberties, the government imposed the duty on itself to protect the
constitutional rights and liberties of people and citizens. By implementing
this duty, the Government strives to minimize the intervention with the
constitutional rights and liberties, if they are made, to quickly and
effectively react.
Accordingly,
administrative-tortious relations take the important place within the legal
proceedings, due to the fact that the administrative and tortious acts are
related with other kinds of legal violations: crimes, disciplinary, civil-legal
cases. The interrelation of the number of administrative cases with crimes is
very close. With the aim of solving the existing problems, it is required to
eradicate such defects of the existing system of the legal rules as the
unfounded responsibility, absolutely determined sanctions, undue introduction
of modifications to the composition, sanctions, recovery system, unavailability
of required procedural provisions, contested decision of issues concerning the
admissibility of the cases, which violate the rights and liberties of the
citizens. In order to lay administrative and scientific nature corresponding to
the dictates of the time to fight against the violations of rights and
liberties of the citizens, it is required to form the Kazakhstani system on
keeping records and information about the facts of violation of the law, protection
of the citizen’s rights while implementing the administrative tortious
relations, which cannot but impact positively on this issue.
References:
1. Universal
Declaration of Human Rights // Adopted by the resolution 217 A (III) of the
General Assembly of the United Nations, 10 December, 1948.
2. B.A.Kistyakovsky Philosophy and social studies
of the rights//St. Petersburg.1998-535p.
3. Russian Legal
Encyclopedia//M., 1999-737 p.
4. Yu.A.Zankina Concept and essence of the
human body//Legal practice//2005.No.1. 12p.
5. A.V.Malko Theory of state and law//M.,
2004, 331-332 p.
6. Ye.A.Lukasheva// General Theory of Human
Rights//M., 1996, -31p.
7. A.Ya.Azarov Human rights: Novoye znanye.
M., 1995-29p.
8. The Constitution of
the Republic of Kazakhstan//1995.30.08., with amendments dated 21 May, 2007.
No.254-III.
9. The Code on the
Administrative Violations of the Republic of Kazakhstan//30.01.2001 No.155-II.