О толковании Конституции Республики Казахстан касательно участия в Комиссии Таможенного союза в рамках ЕврАзЭс (одобрено Венецианской комиссией на 81-ой Пленарной сессии, 11-12 декабря 2009 года)

Strasbourg, 14 December 2009 CDL-AD(2009)058

Or. Engl.

Opinion No. 557 / 2009
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
AMICUS CURIAE BRIEF
ON THE INTERPRETATION OF THE KAZAKH CONSTITUTION
CONCERNING THE PARTICIPATION IN THE CUSTOMS UNION
WITHIN THE EURO-ASIAN ECONOMIC COMMUNITY
FOR THE CONSTITUTIONAL COUNCIL OF KAZAKHSTAN
Endorsed by the Venice Commission
at its 81^st Plenary Session
(Venice, 11-12 December 2009)
on the basis of comments by
Ms Angelika NUSSBERGER (Substitute member, Germany) Mr Evgeni TANCHEV (Member, Bulgaria)

Table of contents

I. Introduction

II. The request

III. Types of norms in the legal system of Kazakhstan - the possible nature of the decisions of the Customs Union Commission

IV. The nature of the decisions of the Customs Union Commission

V. The Relationship between national and supranational legal orders

VI. The relationship between the legal system established by the Eurasian Economic Community and the Kazakh legal system

VII. Conclusions

I. Introduction

1. At the 80^th Plenary Session of the Venice Commission (9-10 October 2009), the Chairman of the Constitutional Council of Kazakhstan, Mr. Rogov, requested the Venice Commission to provide an amicus curiae brief on a case pending before the Constitutional Council on the conformity of the Treaty on the Customs Union Commission with the Constitution of Kazakhstan.

2. The Commission invited Ms Nussberger and Mr Tanchev to act as rapporteurs. Their comments figure in documents CDL(2009)177 and 178 respectively. The Constitutional Council provided Russian versions of the Constitution, relevant treaties and decisions of the Council. In view of the urgency of the case to be decided by the Kazakh Constitutional Council, Mr. Rogov asked for the comments by the rapporteurs by 26 October 2009 at the latest. The Council handed down its decision, available in Russian, on 5 November 2009.

3. The present amicus curiae brief was approved by the Venice Commission at its 81^st Plenary Session (Venice, 11-12 December 2009).

II. The request

4. According to Article 72, para. 4 of the Constitution of Kazakhstan, the Constitutional Council has the competence to give an official interpretation of the Constitution. This procedure has been initiated by the Prime Minister of the Republic of Kazakhstan asking for an official interpretation of Article 4 the Constitution of Kazakhstan.

5. Article 4 of the Constitution of Kazakhstan reads as follows:

«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.