Development of the Justice System of the Republic of Kazakhstan The key principle of Rule of Law in our country has a comprehensive nature. It applies to all subjects of legal relations and all forms of implementing the law. While recognizing the priority of constitutional norms and the norms of international law, the rule of law is of particular importance to the judicial work. According to the Basic Law of our country, the judge in the administration of justice shall be independent and subject only to the Constitution and the law. This means that justice is carried out by means of their precise and rigorous application. The effective judicial system is essential to the implementation of the rule of law, a reliable guarantee of stability, protection of the rights and freedoms of the individual and the interests of the society and the state. According to our strategy “Kazakhstan – 2050” a great job is being done for our country to become one of the thirty most developed nations in the world. In order to achieve this goal it is essential to have a strong judicial system which is a basis for the successful economic and social development of the country. The key priorities for the development of the justice system are set out in the Concept of Legal Policy of the Republic. We are focused on strengthening the independence of the judiciary and active implementation of the norms and principles of international law into the legislation and judicial systems. In these areas, the Supreme Court is working closely with international, regional, and non-governmental organizations. Among them: the United Nations Office in Kazakhstan, the United Nations Development Program, the United Nations Children Fund (UNICEF), the International Organization for Migration, and the OSCE Centre in Astana. We have formed a constructive partnership with the European Union, the Venice Commission, the German Society for International Cooperation, the Foundation for International Legal Cooperation, the Friedrich Ebert Foundation and the American Bar Association. With the expert assistance of our partners, the Supreme Court, together with the Government of Kazakhstan, is actively working to create an effective civil and administrative process and develop the institutions of pretrial proceedings. Our country faces the challenge of forming conceptually new national legislation. It will meet modern realias and trends and ensure the competitiveness of the Kazakhstans legal system. We intend to significantly simplify approach to the cases, especially in the economic courts. We will increase the scope of writ proceedings, and expand the grounds for the application of mediation procedures and other measures of out-of-court settlements. In the next two years we plan to create a new model of administrative justice. Given the international standards in this area, all public disputes of the law are supposed to refer to the jurisdiction of the administrative courts. This enhances judicial control over the activities of state bodies and their officials. The Supreme Court has already begun working on the concept and draft of the new Code of Administrative Procedure. As for strengthening guarantees of judicial protection, a new model of criminal justice is to be introduced in 2015. The adoption of the new Criminal Code, Criminal Procedure Code, Executive Penal Code and Code of Administrative Offences this year was the next step in the implementation of the Concept of Legal Policy. Modernization of the Legal Doctrine and transference to restoration of justice have led to a number of innovations, which are supposed to improve the efficiency of the proceedings, procedural economy and the level of confidence towards the judicial system. These reforms are the increase of judicial control, the introduction of an investigating judge into the criminal process, and the introduction of plea bargaining. The Criminal Code contains a number of provisions which help to reduce the repressiveness our nation’s legal mechanism. The main message of our new model of criminal justice is reduction of criminalization of offences related to the exercise of civil rights and obligations, including implementation of entrepreneurial initiative. At the same time there is an increase of responsibility for committing crimes related to extremist and terrorist acts. We expect that this innovations will contribute to improving the quality of justice, the effectiveness of law enforcement activity and strengthen the constitutional guarantees of human rights and freedoms. Certainly, despite the importance and relevancy of improving legislative regulation, a central component of any independent and fair justice system is the figure of the judge. The judge is fundamental to the legality of the judgment, and proper conduct of the trial, as well as an objective approach to all. The professional development of judges, their skills and moral qualities is one of the main priorities of the Supreme Court. Kazakhstan was one of the first among the post-Soviet states to introduce an open, transparent competitive procedure for selection of the judges. Moreover, this mechanism is constantly being improved. For example, due to initiative of the Supreme Court legislative provision for the participation of society in this process is being considered. This year, the Concept of personnel policy of the judiciary aimed at strengthening transparency and consistency principles in the selection and appointment of judicial personnel was approved. System measures for training and retraining of judges is one of the main components of cooperation with the international and non-governmental organizations. In line with our strategy to engage them in ongoing development, judges undergo training at the Institute for Justice at least once every 5 years, and every 3 years take part in internships in a higher court. Much attention is paid to the training of future judges. So, it is planned to expand Master’s program at the Institute of Justice, increase the practical components of the training program, and expand the internship lengths of post-graduates in the courts. It is also being considered to more stringent entry requirements for judicial office, including psychological testing during qualification exam. At the same time, important steps are taken to ensure high level of legal awareness of judges and court personnel. In this respect we will rigorously follow the standards of professional ethics and anti-corruption behavior. In 2012 all the functions on assessment of judges’ work were referred to a unified republican collegiate body – the Court Jury. This significantly reduced the number of judicial officers who had the potential to unlawful influence on ordinary judges. In order to identify the weak points in the judicial activities, this year a new monitoring mechanism based on the evaluation of the Court as a whole was introduced. In the international practice, these tools have been used successfully in order the activities of the courts were meeting the societys expectations. International experts expressed interest and gave positive feedback on the Kazakhstan methodology for monitoring the quality of the judicial activities. In particular, the UNDP expert Mr. Pym Albersadan has highly praised and noted innovative approaches taken by us. Since July 2014, we conducted polls with business entities – the participants of trials – in the economic courts across the country to measure what businesses thought of the quality of such courts. According to preliminary data, more than 86% of respondents expressed satisfaction with the professionalism and competence of the judges. The respondents were impressed by the accessibility, and the independence the judiciary from illegal influences. The final results of the poll will be announced in January next year. In order to know what our public think of our courts we are planning in partnership with the United Nations Development Program in Kazakhstan to hold an independent sociological survey on the quality of judicial services in 2015. A previous sociological survey conducted in 2012 in district courts, showed that 82.4% of all respondents had fully trust in the court. Similar work to improve the monitoring and evaluation of our courts will be conducted under the World Bank project Institutional strengthening of the justice sector in the Republic of Kazakhstan. We pay great attention to the use of modern information technologies. It can increase the level of accessibility and transparency, reduce the length of courts hearings. We this function and others are successfully developing here. This year we received over 30 thousand e-applications. Participants in proceedings are being notified electronically. This year alone, over 1.6 million e-notifications were sent just to the mobile phones of the subscribers. Stakeholders have an opportunity to directly consult with the Supreme Court via official site and by phone through the call center. Very soon, courtrooms across the country will be reequipped with audio and video systems and the technical means to allow participants in trials to appear remotely. So we can proudly say now that all the key processes of the court, from registration and distribution of court documents to introduction of judicial statistics, are automated through the Unified information analytical system of judiciary. The Head of State N. Nazarbayev at the VI Congress of Judges in November last year noted that “an independent and fair trial is at the core of the activity of any state. Without this, no country in the world, especially the most developed ones, can have a favorable investment climate, nor high level of well-being of citizens or successful development of society.” It’s an idea reflected by Stephen Dunbar-Johnson, publisher of the International Herald Tribune newspaper: Investments go there where there are democratic institutions in the form of independent courts, free press and a viable opposition... The judicial system in Kazakhstan has in the past played important role in stabilizing tense situations in shared-equity construction, mortgage lending, and smoothing out many of the rough edges in the implementation of government anti-crisis measures. The restoration of the rights of domestic and foreign investors had also a positive effect. Today, our state faces new challenges related to creation of favorable conditions for both Kazakhstans business, and foreign investment. Recently, we have implemented landmark decisions, such as the legalization of property and capital, the second wave of privatization, reducing the tax burden, and a moratorium on inspections of small and medium-sized businesses. For the better and immediate protection of investors in June this year we established the Institute of the Investment Ombudsman. Judicial system makes significant contribution to stability of legal relationships ensuring strong protection of rights and legitimate interests of the citizens and businesses. It is proved by the fact that annually courts have more than a million legal cases. Over 95% are completed by the courts in the first instance, only 5% of the rulings are appealed. Today, ordinary citizens, businesses, and state bodies seek legal protection in courts. Over the last 5 years the number of claims submitted annually to the courts increased by more than one hundred thousand (from 539,487 to 647,229). Compared with 2010 the number of cases heard with the participation of small and medium-sized businesses has increased more than two-fold (from 14 573 to 29 701). It is no secret that Kazakh citizens prefer to go to court than to the alternative bodies which settle disputes. This is a clear indication of the maximum availability and efficiency of the judicial protection. Yet, no one is more interested in development of the out-of-court settlements mechanisms. The 16th President of the United States Abraham Lincoln said, Do not sue, ... nominal victory in the court is often a real defeat in costs and time. Mindful of the real interests and needs of the society, we have initiated a number of measures to improve mediation and arbitration. It is worth mentioning that effective cooperation with Kazakhstan’s business community, represented by the National Chamber of Entrepreneurs, on the development of the draft law on arbitration and arbitration courts. We consider the inclusion of the representatives of the Chamber as mediators in disputes between businesses, including in trials. At the same time, in recent years Kazakhstani judicial system has faced ironically inadequate perception of the work of the courts by external users. For instance, there is a controversial opinion which alleges that it is ineffective and even useless to appeal to the courts. Unfortunately, such stereotyped opinions are common. Recently, one respected scientist of Kazakhstan spoke from the high rostrum severely criticizing the courts. However, it was found out that he has never participated in trials, did not study specifically the work of the courts and could not make clear proposals on enhancing the work of the courts. In June this year, the Government of Kazakhstan received a report from the American Chamber of Commerce, which expressed the firm conviction that the Kazakh judges almost always take the side of the state bodies in the disputes between business and governmental agencies. We analyzed all civil cases considered in the Supreme Court on the disputes between businesses and governmental agencies. It turned out that for the last 6 years judicial acts protected the rights of legal persons (including foreign investors) on the amount totaling more than 240 billion tenge. Judgments favoring state bodies totaled only about 40 billion tenge. In the first half of this year alone, the highest court has satisfied the claims of investors on the amount of 2.6 billion tenge. According to court statistics, over half of the applications to the courts challenging the legality of actions of governmental bodies were satisfied. Certainly, the objectivity of any court cannot be measured by this kind of statistics. But these numbers make clear the situation in the mentioned area. At the recently held Fourth Conference of Ministers of Justice of the European Union and Central Asia there was presented information that in the EU countries such as Germany and Latvia the courts positively resolved from 10 to 20% of this kind of applications. Regarding measures taken to create maximum favorable conditions for foreign investments the Supreme Court has initiated the creation of a separate court to hear disputes involving foreign investors. It is also being considered to establish this judicial instance in the Supreme Court. This, in our view, will allow to settle the disputes on the more professional level, to exclude the possibility of violations made by regional authorities, especially in such a debatable sphere as environment. We understand that the improvement of rights mechanisms does not happen overnight. It is a difficult process. But our actions are a clear demonstration of our commitment to constructive engagement and the creation of maximum favorable conditions for foreign investment. The great ancient sage Confucius said: It is better to light one small candle than to curse the darkness. At present the Independent Kazakhstan is developing rapidly in the sphere of economy. It is indisputable. Of course, it would be impossible without due legal support of economic reforms, which is made mostly by judiciary. Judicial system in our country demonstrates consistent and effective development in full conformity with international practice which is based on the rule of law. That was proved by the accepting of the Union of Judges of Kazakhstan as a full member of the International Association of Judges. Membership in such a respected organization recognition by the international community the level of independence and efficiency of the domestic justice. At the same time we fully understand that challenges remain. But we are sure that we will overcome them because we have a clear algorithm of further actions.
Posted on: Wed, 19 Nov 2014 04:51:47 +0000
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