National court system of the republic of Kazakhstan on its path to reforms

The article is devoted to the pressing questions by conducted in Republic of Kazakhstan reforms of the national judicial system.

This reform includes not only changes in certain laws regulating the justice, but also the modernization of the judicial system and legal proceedings, ensuring the interests of investors, raising the level of requirements to thejudicial candidates, introduction of the principle of meritocracy, adoption of a new Code of Conduct principles and ethical rules of judges, strengthening of principles of supremacy of right.

For realization of tasks currently in the Republic of Kazakhstan adopted and entered into force on 1 January 2016 59 new modern laws, including such fundamental as the Entrepreneurial Code and the Civil Procedure Code, actively apply the new information technologies. 

Nowadays institutional reforms are well in progress out in the Republic of Kazakhstan. They are of «Roadmap» nature and called «Plan for nation – 100 steps «Modern society for all».

In accordance with provided reforms there will be made 19 specific steps to improve legal framework of the Republic of Kazakhstan. Most of them are related to reforming of national court system.

It is important to note that nowadays legal system of the country provides for dynamic efficiency on establishing the rule of law which is confirmed by many accepted international ratings. For example, there is a Global Competitiveness Index, which estimates measures of stability independence of courts,soKazakhstan increased measures by 25 positionsfor the last four years.

In the current year according to a world rating of international organization World Justice Project, estimating eight key indicators (limits of authorities of government institutions, fight against corruption, public order and security, protection of fundamental human rights, transparency of government institutions, due course of law, civil justice and criminal justice) Kazakhstan improved its positions by 6 points (from 71 to 65) at once.

Professional aspect of Kazakhstan courts’ activity gained positive acceptance of the United Nations Development Program in Kazakhstan and this year program will continue holding sociological researches with a survey of more than 10 thousand respondents.

Besides, in 2015 the Republic achieved honorary right of accession to the World Trade Organization. During negotiations a considerable attentionwas paid to the position of state judicial system, practice of protection of property, legal rights and interests of businessmen and investors. Key priorities of working of national judicial system were represented at the VI Judiciary convention in November, 2013.

Nursultan Nazarbayev, the President of the Republic of Kazakhstan, took part in this convention and it confirmed importance and influence of Convention.

Congress designated main priorities. Consecutive improvement of legal and procedural rules of courts’ activity, improvement of judicial administration, active introduction of alternative ways of resolution of disputes and conflicts, ensuring availability of justice, increase of judicature professionalism.

Specified questions are directly embodied in target steps of institutional reform.

Two main reforms vectors were allocated by national modernization commission, hosted by Prime minister of the country, following the results of great work, careful analysis of current legislation and international experience. One of them is intended for legal proceedings modernization in the country. The second one for improvement of selection and appointment system of judges. In this regard there was made a decision to carry out a number of measures.

So, soon optimization of authority of judicial service will be made for easier access to system of justice for citizens. It is the transition from five-step system of justice to the three-level one.

Thus, regional, city and comparable courts will carry out legal proceedings of first instance, in regional courts there will beappellate instance, in the Supreme Court of the Republic of Kazakhstancassational instance.

Such transition is caused by reasonable criticism of existing system when one and the same regional court has both appeal and superior cassational instance. As cassational instance carries out supervision functions, transfer of these functions to the Supreme Court is more logical. It also corresponds to other countries’ international practice of civil right system as well asto Kazakhstan, on revision of judicial acts which came into legal force.

Local strengthening of a role of appellate instances also means strengthening of their responsibility. For strengthening of their work there was offered efficiency examination of cases by several judges. Thus, depending on complexity and procedural economy, civil cases,heard in a summary procedure in the absence of dispute, and also criminal cases ofminor offence, will be heard individually. Parameters of cassational appeal in the Supreme Court will be also heard in order not to impose of insignificant affairs on highest instance.

One of reform steps is the creation of separate legal proceedings on investment disputes.

For consideration of investment disputes specificjudicial assembly in court of Astana city which is the capital of Kazakhstan and for settlement of disputes with the participation of big investors there will be formeda special investment body of the Supreme Court of the Republic of Kazakhstan.

In addition, within the frame of financial center of Astana city, according to the Decree of the Head of the State, special financial court is being created. It is not included into judicial system of the country and it is given a particular statusby the example of the court of Dubai financial center (United Arab Emirates). Norms of common law along with current norms of civil right of our country will be considered as applicable law of judicial procedure. English will be the language of legal proceedings. In addition, in Astana there will be formed international arbitration centre (AIFC) by the example of international arbitration center in Dubai. It is designed asa uniform arbitration center for operative and effective consideration of commercial and economic disputes. According to researches,held last year, it was determined, that current arbitration and private courts are often divided;they have no uniform network, database, andslightly focused on international experience. Creation of international center becomes the powerful stimulus for their development and provision of alternative ways of disputes’settlement, the factor of loweringburden of judicial authorities and decreaseof level of conflict intensityof civil society.

With a view of applicationof a world practice, one of reforms steps is a formation of International Council in the Supreme Court of the Republic of Kazakhstan.

The aim of its activity is introduction of the best international standards with participation of competent foreign judges and lawyers.

It should be noted that for the formation of such Council, the Supreme Court of the Republic of Kazakhstan has asubstantial potential. For more than 20 years the Supreme Court actively is cooperating with International association of judges, Steering committee of the United Nations, and such organizations, as German Agency for Technical Cooperation (organization unifying experts-judges of Germany), U.S. Agency for International Development (concerning the supremacy of law and professional development of judges).

The following step of judicial reforms is diminishing involvement of prosecutor in civil court.

Making correspondent amendments in the Civil Procedure Code of the Republic of Kazakhstan will reduce cases of obligatory participation of prosecutor in civil lawsuits. It will allow providingreal competitiveness of the parties, as a principle of civil legal proceedings.

Important step of institutional reforms and confirmation of Kazakhstan’s commitment to world traditions of democracy and supremacy of law is increase of the scope of trial by jury.

Now specific proposals on expansion of increasing scope of trial by jury on the basis of five structures of high crimes are worked outand draft law is introduced in the Parliament of the country.

Such reformasensuring balance between prosecution and defensein the courts will also correspond to the conventional principle of competitiveness.

This balance will be provided with stageby-stage transfer to investigating judges who are already acting on the basis of new Criminal Procedural Code of the Republic of Kazakhstan, powers on sanctioning of all investigatory actions limiting constitutional laws of the person and the citizen. Now it is offered to transfer 4 additional investigatory actions (search, personal search, seizure, sequestration) to judicial sanctioning.In the long view judicial control will be the subject toinvestigative work of law enforcement agencies mentioning constitutional laws of citizens.

One of the most important reform steps is qualifying requirement strengthening and mechanisms of applicants’ selection for judicial office.

According this direction there were made some decisions on improvement of mechanism of applicants’ selection. It is offered to raise age qualification to 30 years for candidates for judges, thus not less than 5 years of their experience should be connected with direct participation in judicial procedure. Candidates will undertake one year's internship in serving courts before the decision-making on their appointment as judges. Thus internship will be held on exempt basis with traineeship appointed in a certain proportion (from 50 to 70 %) ofjudge salary. After appointment new judges will have one year's probation period.

In addition to novelty,there is mass media involvementfor the work of public councils in the period of judicial recommending of judges for higher positions, and online broadcasting of plenary sessions of regional courtsin discussion about candidates for judges.

With a view of strengthening of interrelation of training and jurisprudence,internship of Justice Institute will be separated from the structure of Academy of public administration.

The institute will be transferred to the Supreme Court of the Republic of Kazakhstan and will acquire the statusof Justice Academy of the Supreme Court,consisting ofthree Institutes: Magistracy Institute for training of candidates for the position of judge from among the persons having higher legal education; Institute for Continuing Education for serving judges and Scientific Research Institute.

It will allow revealing shortcomings of training of each undergraduate and quickly and efficiently neutralizing them. Presence of profile scientific training center will increase possibilities of judges advanced training, and willallow carrying out independent scientific researches, providing expert evaluationfor drafts of regulatory resolution of the Supreme Court, documents of other ministries and authorities and giving possibility to serving judges to make contribution to science by publishing scientific works and defending dissertations.

Besides, new Ethical Code of judges is being developed now.

For providing a principle of meritocracy, i.e.career development on the principle of professionalism, there will be established requirements about not less than 5 years of length of service for the candidates for the position of judge of regional and comparable court, and for candidates for the position of judge of the Supreme Court of the Republic of Kazakhstan not less than 10 years of judicial experience, wherenot less than 5 years belong tojudicial experience of regional court.

For serving judges it is offered to introduce obligatory periodic professional development (onceevery 3 years).

Citizens’ possibilities will be extended, according to the appeal of judges’ actions in Judicial Jury of the Supreme Court of the Republic of Kazakhstan, which will include two commissions

disciplinary and qualifying. Tothe competence of updated Jury there will be introduced issues of verification against current position once everyfive years, then onceevery ten years, and also with the participation in competition inholding an appointment in superior court.

It is also offered to alternatecurrent Supreme Judicial Council of the Republic of Kazakhstan. In many developed countries, for example in France or Italy, such body consists half of judges, and half of prosecutors, lawyers, jurists, legal community. For a certain period of time members of such Councils are exempted from main work and deal only withstaff for judicial system.

Introduction of such experience in our country would have had positive result.

For the compliance to up-to-date requirements there was implemented video recording of all trials.

It will allow citizens, participants of processeswatching records of court sessions distantly.

It is importantto provide trials with video conferencing with pretrialdetention facilities and prisons. It will lead to economy of budgetary funds for convoy, to exception of escapes and unauthorized contacts ofprisoners, and also tosafety improving. I may remind that in Zhitikara city of Kostanai oblastit is the only institution of exorbitant safetyin the Republic of Kazakhstan where persons, sentenced to life imprisonment, are held.

During the next period, realization of institutional reforms will becomeglobal and substantive. National judicial system of the Republic of Kazakhstan is intended for a clear vision of ways of all reforms realization and for ensuring supremacy of statute law.

Year: 2016
City: Kostanay
Category: Economy