Литература
1. Лузгин И.М. Концептуальные основы криминалистической подготовки кадров.
Сб.науч.статей, М.1981.с.13-23.
2. Возгрин И.А. Теоретические основы методики как раздела криминалистической науки.
Автореф.дисс., М.1986.с.26-28.
3. Самойлов Г.А. Проблемное обучение в высшей школе./Сб. науч. статей Вопросы
методики преподавания. М.1972.с.56-57.
4. Пантелеев И.Ф. Методические указания к изучению курса криминалистики. М.1984.с.17-
22.
5. Ведомственные приказы и распоряжения МВД Республики Казахстан.
PROBLEMS OF THE CONSTITUTIONAL DEVELOPMENT OF POLAND AND
THE REPUBLIC OF KAZAKHSTAN: COMPARATIVE ANALYSIS
Komarov S.,Orazalieva А., Bizhan N., Ategova N.
e-mail:zara3372@mail.ru
Abstrakt:The customs union and other organizations, which member is Kazakhstan,
have not created similar judicial bodies till now in spite of the fact that current courts,
such as Court of the Eurasian Economic Community and Economic court make decisions
on economic issues.
Besides, it is necessary to mention that Poland has signed and ratified the Roman
Statute of the International criminal court. However with confidence it is possible to say,
that in the Republic of Kazakhstan, despite «young age», there is successfully functioned
and constantly modernized strong both independent judicial power and the administration
of judicial system which societies under the influence of objective requirements show the
vital ability.
Determining the purpose - construction of democratic and legal state which is the
main priority of the world community, we consider, that separate constitutional positions
of Poland could serve as the sample for our perfection, at the same time as some norms of
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the Kazakhstan Constitution of the Fundamental law could become a model for the Polish
legislation.
Keywords: Constitution of the Republic of Kazakhstan, тhe Constitution of the
Republic of Poland, state system, comparative analysis, political regime, environment
protection.
The constitution, being the contract between the people and the state, regulates the
basic, fundamental relations arising in a society. It covers all spheres of a life - political,
economic, social and spiritual. By means of the Constitution the people establish the state,
determine forms of its governing and administration, bases of socialeconomic system,
status of the person and the citizen.
The republic of Kazakhstan is in the center of Eurasia, on a border line between two
continents, whereas the Republic of Poland is in the heart of Europe. It is a member of the
European Union, while Kazakhstan is a member of the Customs Union. The recent past
united these countries historically - till the beginning of the last decade of 20th century
Kazakhstan and Poland were as a part of the socialist (communistic) block. The basic
laws of these countries were preceded by such acts, as the Constitutional law of October,
17, 1992 on mutual relations between legislative and executive power of the Republic of
Poland, and also on local government and the Constitution of the Republic of Kazakhstan
of 28 January, 1993.
Now these two democratic and independent countries have thorough constitutional-
legal base, in particular: the Constitution of the Republic of Kazakhstan of 30August,
1995 and the Constitution of the Republic of Poland of 2 April, 1977 which, in turn, were
corrected by the constitutional reforms in 1998, 2007, 2011 and in 2006, 2009,
accordingly. As it is known the legislation of Kazakhstan and Poland is based on
continental system of law, in this connection in both countries the Constitution norms are
higher than any legal positions (in Article 4.2 of the Constitution of the RК and p.2 of the
Constitution of the RP). According to the Constitution of the RК the government is
uniform, it is carried out on the basis of the Constitution and the laws according to a
principle of its division into legislative, executive and judicial branches and interactions
among themselves with checks and balances (in Article 3.4 of the Constitution) [1].
The Polish Fundamental law says, that the state system is based on division and
balance of the legislative, executive and judicial powers. The legislative power is carried
out by the Sejm and the Senate, the executive - the President and the Council of
Ministers, and the judicial - courts and tribunals (Article 10 of the Constitution of the RP)
[2; 15]. The constitution, representing the Fundamental law, is the main source of the
national law, a kernel of all legal system and legal base of the current legislation. In a
constitutional law science attempts to classify the constitution of the states on the various
bases were repeatedly undertaken:
- depending on the state system form - unitary, federal;
- depending on character of a political regime - democratic, reactionary;
- depending on duration of application - constant, temporal;
- depending on structure - codified and non-codified;
- according to objection of the Fundamental law - written and unwritten;
- according to change - rigid, flexible.
M.V.Baglaj defines «constitution as the fundamental law of any state» [3].
R.V.Eginborjan and E.V.Tadevosjan make the following definition: «Constitution is the
most important and basic political-legal act (or a number, set, system of such acts),
having the higher legal power and regulating bases of the administration of the state and
its mutual relations with a society and a person (a person and a citizen)».
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V.O.Luchin, G.A.Vasilevich, A.S.Prudnikov have noted: «Constitution is the basic
source of the constitutional law, which determines the features, properties and other major
characteristics of the state and the law, fixes state-legal way of the country »[4].
The Constitution of the Republic of Kazakhstan is normative-legal document
regulating principal views of activity of the person and the citizen, the state and its bodies
and their mutual relation, represents the will of the Kazakhstan people. As to the
Constitution of the Republic of Poland in definition it is necessary to focus attention to
the special relation to religion in the Polish history. Therefore in the Constitution there is
such a concept «both believers, and citizens which do not believe in the god». In our
opinion it is connected with indissoluble links of the Polish people with church.
The Constitution of the Republic of Kazakhstan says that the Constitution has the
higher legality and direct action in territory of the state. The symbol and the guarantor of
fixity of the Constitution is the President, control function is carried out by Parliament as
it hears annual messages of the constitutional legality in the Republic. Courts provide
Constitution execution, the Prosecutor‘s Office also carries out supervision of regulatory
legal acts about their conformity to norms of the Constitution, in case of discrepancy
protests them. Regulatory legal acts, from the constitutional laws and the international
contracts to decisions of maslihats, should not contradict norms of the Constitution. In
case of their contradiction to norms of the Constitution they are recognized as invalid.
The Constitution of the Republic of Poland also says that the Constitution is the
Supreme law, its positions are applied directly if another is not provided by it. The
president ensures the Constitution observance. Article 79 of the Constitution of the
Republic of Poland is very interesting where the following is fixed: «Every one whose
constitutional liberties or rights were violated, has a right, according to the principles
determined by the law to be obliged with complaint to the Constitutional Tribunal with
accordance of the Constitution, law or other normative act, on which base, the court or
public administration authority issue a final decision on his liberties and rights or his
duties determined by the Constitution»[5].
Thus, each citizen has an opportunity to observe conformity of all regulatory legal
acts according to norms of the Constitution that is, certainly, the best monitoring of
national system of the law. In our opinion, the similar norm is necessary also for us. It
will give the chance to citizens to participate more in the control over rule making activity
of the bodies authorized by the Constitution. It is necessary to conclude, that the
Constitution of the Republic of Kazakhstan is a basis of the state building and national
system of the legislation, proceeding from the first section of the Constitution of the
Republic of Kazakhstan.
The recognition of the people by creator of the Constitutions of our states expresses
its characteristics. From that recognition, that the people are the unique subject accepting
the Constitution, its constituent character follows. The people are a government source in
the country and the sovereignty carrier. Therefore it possesses the constituent power. The
system of regulatory legal acts in each state is determined by the Constitution, and also
the laws published on its basis, positions about those or other state bodies, governmental
decrees. The legislation determines an order of the edition, change, cancellation and
addition of regulatory legal acts. It is underlined, which body according to what
procedure publishes this or that normative act. The Constitution of the Republic of
Kazakhstan says that the law in force are laws, other regulatory legal acts corresponding
to the Constitution, thus an obligatory condition of their application is official publication.
It is also told that the Republic laws come into force after their signing by the President.
In the Constitution of the Republic of Poland the following is fixed: «1. Sources of
obligatory law of the Republic of Poland are: Constitution, laws, ratified international
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agreements, and instructions» [5]. For law coming into force also it is necessary to
observe a rule, namely to give it for the signature to the President who, in turn, gives the
order to publish the given law».
As the doctor R.Mojak fairly notices, the signing act is not reduced to simple
formality and the automatic statement of the law. The Polish Constitution provides two
various variants of the President‘s actions which he can undertake in case of disagreement
with act acceptance: initiation of the preliminary constitutional control and the right of the
veto[6]. In the Republic of Kazakhstan the President also has a power to send the law or
its separate elements for repeated consideration, discussion in the Parliament.
According to the constitution of the Republic of Kazakhstan, the Parliament is the
higher representative body of the Republic which is carrying out legislative functions. In
Kazakhstan, unlike Poland, the President has a wider spectrum of powers as he has a right
to carry out legislative function. In the Constitution of the Republic of Kazakhstan in
Article 61 there is determined a concrete circle of activity on which the Parliament can
publish laws: «The parliament has the right to publish laws which regulate the major
public relations, establish the basic principles and norms concerning:
- legal personality of physical and legal bodies, civil rights and liberties, obligations
and responsibility of physical and legal bodies;
- a regime of the property and other real rights;
- bases of the organization and activity of the state bodies and local governments,
state and military service;
- taxation, establishment of duties and other obligatory payments;
- republican budget;
- judicial system and legal proceedings;
-education, public health services and social security;
-privatization of the enterprises and their property;
-environment protection;
All other relations are regulated by statutory acts ».
For acceptance of legal acts in the Parliament of Kazakhstan there are certain
procedures.
It is necessary to pay attention, that in the Constitution of the Republic of Poland
there is not given any information of kinds of the acts published by the Sejm and the
Senate.
The analysis of sources of the constitutional system in both states has shown, that it
can be characterized as integrally connected system which all elements provide
realization of ours with your rights. It is necessary to notice, that sources of the
constitutional system are characterized by the following features: plurality and hierarchy,
a law priority, change of a parityof national and international law. The Constitution of the
Republic of Kazakhstan says that the law in force is international-contractual and other
obligations of the Republic, i.e. those normative acts in which the Republic of Kazakhstan
as the subject of the international relations has incurred any obligations. In the
Constitution of Poland there is also similar article according to the meaning. In Article 9
there is given that Poland observes international law obliging it. It would be desirable to
note that in the Constitution of the Republic of Poland there is a separate chapter
containing sources of the law, that is, undoubtedly, the excellent logic decision.
In article 4 of the Constitution of the Republic of Kazakhstan there is also spoken
about a priority of the international norms before norms of the national law and they are
applied directly. Also there is a clause - if the international contract must be ratified,
where in the given context the statement is understood by its supreme body of the
government. In the Republic of Kazakhstan the given function belongs to the Parliament.
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Position that the adoption of law if it follows from the international contract is necessary
is fixed also.
In the Constitution of Poland the given phenomenon is fixed in Article 91.2 where
the following is spoken: «International contract ratified from the preliminary consent,
expressed in the law, has a priority before the law if this law cannot be co-ordinated with
the contract »[6]. Thus, the leadership of international norms over the national proves to
be true. As to the law edition - it also is regulated in Article 89 of the Constitution:
«Ratification by the Republic of Poland of the international contract and its
denouncement demand the preliminary consent expressed in the law if the contract
concerns:
peace, unions, political arrangements or military arrangements, civil
liberties, rights or duties, determined by the Constitution, memberships of the Republic of
Poland in the international organization, considerable charges of the state in the financial
case, issues settled by the law or in which relation the Constitution requires the law
edition »[6].
It testifies that the most important spheres in a state and society life, without
dependence from requirements of the international contract, i.e. the edition of the law is
required or not, should be all the same settled by the separate law as it influences bases of
the constitutional system. In Poland the President ratifies and denounces international
agreements, thus he should inform the Sejm and the Senate. The given norm testifies to
the big role of the Sejm and the Senate in formation of legal system.
The following condition for legalty finding by the international contract is its
publication. The Constitution of the Republic of Kazakhstan says the following: «All
laws, international contracts which participant is the Republic, are published. Official
publication of the normative legal acts, concerning the rights, liberties and duties of
citizens, is an obligatory condition of their application» [7]. We see, that the legislator has
specially allocated the international norms, concerning the rights and duties of the citizen
which should be published that is not absolutely logical as before he already speaks about
it. It is also possible to see higher attention, concerning the rights and duties of citizens,
that, undoubtedly, is the important step to formation of our state as legal.
In Poland the given norms contain in Constitution Article 88: «International
contracts ratified from the preliminary consent expressed in the law, are published in an
order demanded for laws. Principles of publication of other international contracts are
determined by the law» [6]. In the same place it is told, that a condition of coming into
force of the law is its publication. Thus, in our states there are similar conditions of the
introduction into action of the international contract, that once again confirms necessity of
studying of formation of the constitutional system of the Republic of Poland.
According to the constitution of RK the government is uniform, it is carried out on
the basis of the Constitution and the laws according to a principle of its division into
legislative, executive and judicial branches and interactions among themselves with use
of system of checks and balances (Article 3.4 of the Constitution) [1]. The Polish
Fundamental law says that the state system is based on division and balance of the
legislative, executive and judicial powers. The legislative power is carried out by the
Sejm and the Senate, the executive is the President and Ministerial council, and the
judicial is courts and tribunals (Article 10 of the Constitution of RP) [2; 15].
Thus, in both countries the judicial power is traditionally presented as the third
branch of the power and regulated by almost final parts of constitution. In Poland these
issues are considered within the limits of one section. In the Fundamental law of the
Republic of Kazakhstan there is a section «Courts and Justice» [1] which is devoted to
this issue. This section is next to last if to exclude the final section containing final and
transitive positions while in the Polish Constitution it is Article 8 from 13, including
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temporal positions. The final section of the Polish Constitution represents now special
interest as its positions with specified time of action are already executed. Judicial bodies
of Poland are separated from other elements of the state structure. Article 173 of the
Polish Constitution is categorical: «Courts and Tribunals are the power isolated and
independent of other authorities» [2; 105].
Similar position in the Constitution of Kazakhstan is regulated in other key. It has
been above specified about presence of the constitutional position (Article 3.4 of the
Constitution of RК), and also there is Article 75.1 of the Constitution which says, that
justice in the Republic of Kazakhstan is carried out only by court [1]. In Article 1.1 of the
Constitutional law «On judicial system and status of judges of the Republic of
Kazakhstan», which is an integral part of judicial system regulation of the republic to
what Article 75.4 of the Constitution testifies, it is established, that the judicial power in
the Republic of Kazakhstan belongs only to courts in the name of constant judges, and
also the jurymen involved in criminal legal proceedings in cases and order, provided by
the law.
Justice in the Republic of Kazakhstan is carried out only by court. The edition of
the acts providing transfer of special powers of court to other bodies is forbidden. No
other bodies and persons have the right to appropriate power of the judge or function of
the judicial power. Appeals, refers and complaints to be considered as legal proceedings,
cannot be considered or taken on the control by any other bodies, official or other persons
[5].
In the Polish Constitution all judicial bodies are listed. Article 175 determines, that
justice in the Republic of Poland is sent by the Supreme court, general courts,
administrative and military courts, and adds that exclusive courts (or the accelerated
procedures) can be established only for the period of war [2; 106].
The constitution of Kazakhstan determines, that the Republic courts are the
Supreme court, just as «the local and other courts of the Republic established by the law».
As to the so-called "accelerated" or "simplified" justice the Kazakhstan Constitution is
unshakable, unlike Poland, establishment of «special and extreme courts under any name
it is not supposed» [1].
Other important difference between the judicial power of Poland and Kazakhstan
consists in Prosecutor‘s Office. The Polish Fundamental law only mentions officials of
this body twice. Article 103.2 establishes that «the public prosecutor cannot combine
deputy activity and have the deputy mandate», along with that Article 191.1 authorizes
the General public prosecutor to refer to the Constitutional Tribunal with the offer on
cases of which it is said in Constitution Article 188. The constitution of Kazakhstan, on
the contrary, contains big article of 4 points, in detail regulating activity of bodies of
Prosecutor‘s Office.
The structure of judicial system of Poland and Kazakhstan looks as follows. In
Poland the judicial power belongs to courts and tribunals it is basic division in judicial
system. There are only two tribunals - constitutional and state (impeachment). In the
Polish language this body is called Tribunal Stanu. In many widespread translations it
sounds as the State Tribunal, however such expression in English misleads, as in Poland
(and in other countries) there are no private tribunals. Members of this Tribunal are
selected by the Parliament to be brought to trial of the high-ranking officials. Mass media
informed about such activity worldwide as impeachment. In the Anglo-American
literature there is a great number of publications about impeachment [8].
As to courts the Constitution lists five categories: the Supreme court, the general,
administrative, military court and exclusive court (last only for the period of war).
Regulating the third category, the Constitution mentions the High Administrative court,
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and also administrative courts of the lowest instances. In Poland there are three higher
judicial bodies: the Supreme Court, the High Administrative court and the Constitutional
Tribunal. They are independent from each other and their judgments are final and without
appeal. In spite of the fact that they are equal, the Constitutional Tribunal is prevailing
(higher) judicial body. After a legal investigation in the Supreme Court or the High
Administrative court the lost party has the right to continue a case in the Constitutional
Tribunal. Besides, there is a possibility of application in the international organizations,
such as the European court under human rights in Strasbourg and Court of the European
Union in Luxembourg. All it makes the Polish judicial organization enough difficult.
Unlike the Constitution of Poland the Constitution of Kazakhstan does not answer a
question exactly, how many courts and categories of courts exist in the Republic. The
Republic fundamental law names the Supreme court of the Republic as the higher judicial
body on civil, criminal and other cases, local and other courts, and also the local and other
courts of the Republic established by the law.
It is necessary to refer to the Constitutional law «On judicial system and status of
judges in the Republic of Kazakhstan» in accordance with which there are military,
financial, economic, administrative courts, juvenile courts and others. Local courts are
presented by regional and regional courts [9].
The Polish constitutional norms establish, that «everyone, deprived of his liberties
not on the basis of the court order, has the right to refer to the court for the purpose of an
urgent establishment of legality of this deprivation», and he «should be urgently and clear
informed on the detention reasons. Within 48 hours from the moment of detention he
should be referred to the judges. The arrested person should be released, if within 24
hours from the moment of refer to the judge he is given a decision about temporary arrest
together with the charges involved». The Legal protection is accessible at all stages of
procedural actions, and in case of illegal imprisonment the person has the right for
compensation.
According to the appointment and independence of judges it is possible to notice,
that the Polish Fundamental law establishes, that «judges are appointed by the President
of the Republic under the offer of General Polish Council of justice for uncertain time».
The chairman of the Supreme Court and the Chairman of the High Administrative court
are appointed «for a six-summer term of authority» from the candidates presented by
General meeting of judges of corresponding court. Similar positions of the Constitution of
Kazakhstan establish, that «chairmen and judges of local and other courts are appointed
for posts by the President of the Republic under the recommendation of the Higher
Judicial Council». As to appointment of the Chairman and judges of the Supreme Court
procedure differs a little. They are elected by the Senate on representation of the President
of the Republic, based on the recommendation of the Higher Judicial Council.
The interdiction for employment of several posts is expressed in the Constitution of
Kazakhstan more obviously, than in Poland. Article 79.4 of the Constitution of RК
establish, that the post of the judge is incompatible with the deputy mandate, with
employment of other paid post, realization of enterprise activity, occurrence in structure
of supervising body or the supervisory board of the commercial organization. The unique
exception is made for teaching, scientific or other creative activity [1]. The Polish
Constitution, with the same exception as in the Kazakhstan Constitution, establishes
incompatibility of a post of the judge with the parliamentary mandate, a finding in
political party, membership in a trade union and, especially, the public activity
contradicting principles of independence of courts and judges.
Judges of both countries possess extensive constitutional guarantees which concerns
being in a post. So, judges at administration of justice are independent and submit only to
27
the Constitution and laws. The constitution of Kazakhstan also establishes that any
intervention in court activity on administration of justice is inadmissible and liable to
legal action. According to the concrete cases the judge are not accountable. Powers of the
judge can be stopped or suspended exclusively on the bases established by the law. The
judge cannot be arrested, be brought forcibly, measures of the official penalty imposed in
a judicial order, is involved in the criminal liability without the consent of the President of
the Republic of Kazakhstan based on the conclusion of the Higher Judicial Council of
Republic. In turn, arrest and imposing of similar restrictions on the General public
prosecutor, the Chairman and judges of the Supreme Court demand the Senate consent,
except detention cases at crime scene or commitment of grave crimes.
The Polish Constitution, showing care of ensuring autonomy of the judge, does not
contain identical positions. There are no special guarantees of judges‘ immunity of
Supreme or High Administrative courts. The fundamental law of Poland makes a great
accent on extensive guarantees of judges as the Kazakhstan Constitution makes. Article
80 of the fundamental Law of Kazakhstan is short determines, that financing of courts,
maintenance of judges with habitation are made at the expense of means of the republican
budget and should provide possibility of full and independent realization of justice [1].
The constitution of Poland establishes that «judges are maintained with the working
conditions and compensation corresponding to a post, and also to volume of their duties».
As to an removability of judges, the Polish constitutional norms are very detailed and
mention set of aspects and principles: dismissal, temporal discharge of the judge from a
post, his transfer in other place or for other post etc. So, the Polish judges do not retire.
They keep not only the salary of operating judges, but also the status «judges on rest».
Judges can be back caused for work. The status of the judge is some kind of lifelong
appointment, but without the obligation to stay in a post. Even judges of the Supreme
Court of the USA do not have such privilege according to the Supreme law of this
country [11].
We will pay attention to the competence and functioning of courts. According to
Article 76 of the Constitution of Kazakhstan the judicial power has by the appointment
protection of the rights, liberties and legitimate interests of citizens and organizations,
execution of the Constitution, laws, other normative legal acts, international contracts of
the Republic [1].
The Polish Fundamental law establishes that the general courts administer justice on
all cases, except for the cases carried by the law to the competence of other courts, and
administrative courts carry out the control over activity of public administration, and also
over legality of decisions of local governments and normative acts of territorial bodies of
the governmental administration.
Also the Constitution of RК contains the constitutional position that the judicial
power is carried out on behalf of the Republic. The similar Polish norm simply says that
courts and tribunals make decisions by the Republic name.
The constitution of the Republic of Kazakhstan contains 10 principles which should
adhere to the judge, and the declaration that decisions of courts have a binding force in all
territory of the Republic. Establishing, as well as the Constitution of Poland, that the
Supreme Court carries out supervision of activity of the general courts. The fundamental
law of Kazakhstan, besides, adds, that this body «makes explanations concerning
judiciary practice». Position of the Polish Constitution about functioning of courts is not
such extensive. It registers, that legal procedure is, at least, double authorized, and degree
of participation of citizens in administration of justice is determined by the law. The first
position is absent in the Kazakhstan Constitution while the second is not such
28
unequivocal, unlike Polish, and establishes, that «in the cases provided by the law,
criminal legal procedure are carried out with participation of jurymen».
And at last, we will consider the status of Judicial Council (Justice Council) under
Fundamental laws of Kazakhstan and Poland. Texts of both Constitutions contain norms
about Judicial Council which "Higher" is called in Kazakhstan, and in Poland "General
Polish". The constitutional positions in the first case mention it in two points. It is not
obviously possible to determine quantity of members of this body as Article 82.4 of the
Constitution of RК says that the Higher Judicial Council consists of the Chairman and
«other persons appointed by the President of the Republic». Council gives
recommendations during election of the Chairman and judge of the Supreme Court and
appointment to posts of Chairmen and judges of local and other courts of the country.
Point 5 of specified Article of the Constitution of the Republic of Kazakhstan establishes,
that the status and the organization of work of the Higher Judicial Council are determined
by the law [1].
The Polish constitutional positions about Justice Council are a little more detailed
and exact. Four articles of the Constitution are devoted to this body. A starting point is
Article 186 which establishes, that General Polish Council of justice is on guard of
independence of courts and independence of judges. Following article determines its
structure. It consists of the Chairman of the Supreme court, the Minister of Justice, the
Chairman of the High Administrative court and the person appointed by the President of
the Republic, 15 judges elected from judges of the Supreme court, the general courts,
administrative courts and military courts, and 4 members elected by the Sejm from
deputies, and also 2 members elected by the Senate from senators [2; 111]. There are only
25 members. Unlike Kazakhstan the Polish Council itself elects the Chairman and two
vice-chairmen.
Positions of the Polish Constitution establish that the term of appointment of
members of General Polish Council of justice is 4 years. As well as in Kazakhstan, judges
are appointed by the President of the Republic under the offer of General Polish Council
of justice. However unlike the Kazakhstan norms, the Senate of Poland is not involved in
appointment process. Article 186.2 of the Constitution establishes very important
competence of General Polish Council of justice. The given body can refer to the
Constitutional Tribunal with the offer of conformity of the Constitution of normative acts
in those limits in which they concern independence of courts and independence of judges
[2; 111]. Only after this norm Article 187.4 refers to the legislation. It is a little more
precisely certain, than similar norm in Kazakhstan. It establishes, that «the administration,
a field of activity and an operating procedure of General Polish Council of justice, and
also a way of election of its members are determined by the law».
The conducted research shows that the constitutional positions about the judicial
power of Kazakhstan and Poland contain many differences though are shown in enough
similar formulations. It is obvious even from names of sections: in the Constitution of the
Republic of Kazakhstan - «Courts and justice», in the Constitution of the Republic of
Poland - «Courts and Tribunals». Third article of the Fundamental law of this country
speaks about unity of the government and about interaction of a judicial branch of the
power with two others. In this respect the Polish text speaks only about the judicial power
and about its rigid restriction from the legislative and executive power. The judicial
system of Poland is accurately determined in the Constitution by its various elements and
hierarchy of courts. Article 77.3 of the Constitution of Kazakhstan provides 10 principles
when applying by judges the law. The Polish Constitution does not contain similar norms
and this results from the fact that these principles are closely connected with questions of
realization of justice and their fastening at level of codes is more expedient.
29
The main charecteristics of the constitutional positions about the judicial power of
two countries consists that the Polish and Kazakhstan constitutions say that judges during
administration of justice are independent and submit only to the Constitution and laws.
From the organizational point of view there are two differences. The section of the
Constitution regulating judicial system of Kazakhstan includes positions about
Prosecutor‘s Office while administration of justice is outside of activity of Prosecutor‘s
Office. The constitutional position of Poland is more constrained in this respect.
Mentioning the General public prosecutor, he does not allocate with his special role or the
competence. And at last, the Constitutional Tribunal in Poland is separate judicial body.
As well as the general courts, it makes decisions by the name of the Republic of Poland.
It is necessary to notice, that now Poland is completely integrated into the European
system of the fundamental rights and liberties. The Polish citizens have possibility to refer
to the European court under human rights in Strasbourg and European Union Court in
Luxembourg.
References
1 Source: Is paragraphs,. Constitution of the republic of Kazakhstan (adopted by national
referendum 30 August 1995).
2. Konstytucje Rzeczypospolitej. — Kolonia Ltd, 2001.
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faculties. — Moscow: NORMA INFRA-M, 1998.
4. Lucin V.O. Social value of the Constitution of the Russian Federation // Constitution as
a symbol of the era [text]: In 2 t / Ed. prof. S.A.Avakyan. Vol. 1. — Moscow: MSU, 2004.
5. The Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws of July 16,
1997 ± 78, pos. 483)
6.Foundations of Constitutional Law of the Republic of Poland: A guide for students /
Alexander Vashkevich. — Minsk: Tess, 2007.
7. Black Ch.L. Impeachment: a Handbook. — Yale University Press, 1998. — 98 p. and
M.J.Gerhardt. The Federal Impeach-ment Process: A Constitutional and Historical Analysis. —
University of Chicago Press, 2000.
8 Chemerinsky E. The Conservative Assault on the Constitution. — Simon and Schuster
Paperbacks, 2010.
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Conf. A. Vermeule. The Constitutional Rule of Official Compensation. — Columbia
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