Review of the constitutional law of the Republic of Kazakhstan on the judicial systam and the status of judges

Review of the constitutional law of the Republic of Kazakhstan on the judicial systam and the status of judges

by Karoly Bard

professor at of the central european university legal studies department

The present review has been prepared by Professor Karoly Bard, Central European University, Budapest, who is an expert on the Independence of the Judiciary and on legislation in Central and Eastern Europe.

The views expressed do not necessarily reflect the official opinion of the OSCE and the Office for Democratic Institutions and Human Rights (OSCE ODIHR).

Executive summary

The constitutional law of the Republic of Kazakhstan on the Judicial System and the Status of Judges addresses most of the issues that has to be covered by such a law. The majority of the provisions is in line with international standards: special and extraordinary courts may not be established; courts are granted broad jurisdiction; the chapter on the status of judges provides for the basic safeguards of independence and impartiality and at the same time guarantees the basic rights of the members of the judiciary; the setting up of a Supreme Judicial Council with a relatively broad mandate is envisaged in the law.

With a view to what is recommended by international documents on the status of courts and judges as well as to experience of other countries the adoption of certain additional provisions are recommended. The most important recommendations are:

    - Provisions on the budgeting process should guarantee some involvement of judicial bodies and provide for guarantees against pressure through the budgeting process.

    - The status and the mode of operation of the so called "authorized agency, which has considerable powers in administrative, technical and financial matters have to be clearly identified.

    - More detailed rules on disciplinary offences are needed and the minimum safeguards of fairness in disciplinary procedure have to be set forth.

    - The criteria for the judges' promotion have to be defined and the law should address some additional issues, such as judges' salaries and their training.

I. Introduction

The present report assesses the Constitutional law of the Republic of Kazakhstan on the Judicial System and the Status of Judges (the law) on its compliance with the country's commitments and with international standards in general. The report is based only on the above mentioned law and does not include a review of other pieces of legislation that might impact the independence and performance of the administration of justice in Kazakhstan. When assessing the law's compliance I shall set out from the OSCE commitments relating to the rule of law and confront the provisions of the law with the requirements set forth in the UN Covenant of Civil and Political Rights (ICCPR), the UN Basic Principles on the Independence of the Judiciary adopted by the Seventh UN Congress (1985) on the Prevention of Crime and the Treatment of Offenders (Basic Principles) as well as with the ECOSOC Resolution on Procedures for the effective implementation of the Basic Principles (ECOSOC Resolution).

When appropriate I shall make reference also to other international instruments, irrespective of whether the Republic of Kazakhstan is bound by them, such as the Recommendation No. R (94) 12 of the Council of Europe's Committee of Ministers on the Independence, Efficiency and Role of Judges (CoE Recommendation) or the "Universal Charter of the Judge adopted in 1999 in Taipei by the International Association of Judges (Charter) and the "Judges Charter in Europe" adopted in 1993 by the European Association of Judges (European Charter). As to the latter two documents it should be noted that they reflect the views of judges and therefore contain numerous "aspiration norms" and, in addition, are not completely free from corporate spirit.

In addition to the law I shall also review the relevant provisions of the Constitution of the Republic of Kazakhstan which contains provisions of particular importance on the status of the judiciary in line with the Basic Principles.

II. The constitutional framework

1. Guarantees of judicial independence

Article 1 of the Basic Principles proclaims that judicial independence should be guaranteed by the State and enshrined in the Constitution or the law of the country. The Kazakh Constitution, similar to the Constitutions of other countries the basic guarantees of judicial independence. It is worth of noting that the Constitution explicitly mentions the principle of separation of powers, which serves as the basis for the independence of the judicial branch and also the principle of the balanced relations between the three branches of government. A significant safeguard of the balanced relationship is the qualified quorum required for adopting laws on the judicial system and legal proceedings, if my interpretation of articles 61 and 62 is correct.

2. The courts' competence

Section VII. of the Constitution contains the basic provisions on the judicial system, on the courts' competence and the principles that govern the operation of courts. Article 76. par. 2 provides for a broad competence of courts: "judicial power should be extended to all cases and disputes arising on the basis of the Constitution, laws and other legal sources as well as international treaties. Section VII. stresses the independence of the individual judge and set forth the basic guarantees of personal independence (the prohibition of interference, the judges' freedom of being accountable with regard to a specific case, immunity, and rules of incompatibility). In line with article 7 of the Basic Principles the Constitution proclaims that courts have to be provided adequate funding in order to enable them the "complete and free exercise of justice".

3. The role of the Supreme Court and of the Highest Judicial Council

The law in article 20. par. 2 provides that the chairperson of the Supreme Court is representing "the interests of the judicial system of the Republic in mutual relations with the agencies of other branches of state power". Some of the chairperson's competencies (submitting proposals to improve legislation, to award state awards, proposals in personnel matters) indicate that it is actually the chairperson of the Supreme Court who represents the judiciary vis a vis the President of the Republic. At the same time some provisions of the Constitution seem to indicate that in certain areas it is rather the Highest Judicial Council, which acts as the partner of the two other branches.

Comparative research indicates that in countries where the judiciary's representation is clearly laid down, the judicial branch is in a better position to enforce their interests in negotiations with other branches of power. Therefore one could consider to identify clearly the judicial agency which is in charge of representing the judiciary vis a vis the other branches of government.

III. Provisions of the draft law

1. On Judicial Power

a. Jurisdiction

Article 3 of the Basic Principles proclaims that the judiciary shall have jurisdiction over all issues of judicial nature. Article 4. prohibits any kind of inappropriate interference with the judicial process, review of judicial decisions included. Article 5. of the Basic Principles prohibits the setting up of extraordinary courts which "do not use the duly established procedures of the legal process". Article 1. of the draft law contains detailed provisions on the same issues: in addition to proclaiming that administration of justice is in the exclusive competence of courts it also prohibits any type of curtailing the courts' competence and guarantees access to justice to everyone.

What is missing in the draft law is the provision on how to solve eventual disputes on competence between the courts and other agencies. I would suggest adding a provision in line with Article 3. of the Basic Principles, which says that the judiciary shall have, exclusive authority to decide whether an issue submitted for its decision is within its competence.

b. The prohibition of interference

The law prohibits any kind of interference with the courts' activity and envisages also legal sanctions in case of interference. In this respect the law goes beyond what is required by international instruments. The Basic Principles and the Charter proclaim only the prohibition of interference without, however, calling upon states to use legal sanctions against those who fail to comply with the prohibition. This is a proper rule, however, it is for legislatures and judges to ensure that the provision will not be used for suppressing and penalizing legitimate criticism of the courts by the public and the media. Preserving the courts' impartiality is a legitimate ground for setting limits to the freedom expression but the interference has to be absolutely necessary with a view to the extremely important role freedom of expression plays in maintaining democracy.

c. Communication between courts and the media

In line with international standards article 25 par. 3 says that judges may not be obliged to provide any explanation on the essence of cases already considered and of sub judice court cases (article 25. par. 3.). This again is a correct provision, however, the means of communication between courts and the media (e.g. the system of spokespersons) should also be laid down in the law. Through a well-designed system unfounded attacks against courts as well as depriving the public of its right to information can be prevented.

d. Compliance with court decisions

All safeguards of judicial independence become senseless if court decisions and orders are disregarded. Accordingly, I highly appreciate the draft's provision, which guarantees the judiciary's so called fundamental independence by stating that "failure to implement court decisions and orders entail liability under the law."

1. The Judicial System

a. Military Courts

In line with international standards the law prohibits the setting up of "special and extraordinary courts." Military courts as "specialized courts", however, do operate in Kazakhstan. The existence of military courts is not against international standards. However, when designing the provisions on the status of military judges and those on the military courts' competence one should bear in mind that military courts generally have a closer connection to the executive through the military hierarchy and therefore their operation can pose a threat to judicial independence. In addition, if their competence is extended to over civilians concerns as regard their impartiality might be legitimate.

Therefore it is recommended to grant military courts limited jurisdiction. I am aware of that this is a matter for the code of criminal procedure to deal with.

b. Financial autonomy.

Article 4. of the law contains a significant guarantee of judicial independence, i.e. financing of all courts from the Republic's budget. By this undue pressure of local governments can be prevented. In this respect, however, it should be mentioned that there are practically no provisions on the budgeting process in the law whereas experience indicates that this is an important issue from the point of view of the judiciary's autonomy.

Apart from the Charter, which states that the judiciary should have the opportunity to take part in or to be heard on decisions taken in respect of the means to equip itself properly to perform its function here are no clear international standards on the matter. However, it is common practice in democracies to have some involvement of the judiciary in the budgeting process. One can also argue that placing some or all authority for the preparation of the draft budget in the hands of judicial councils can at least limit the executive's ability to curtail judicial independence. It is also advisable to have a separate budget chapter for the judiciary and to provide for guarantees against allocation of the courts' funds to other institutions. Also the allocation of resources to individual courts has to be made upon clear and precise criteria and in transparent procedure.

Therefore I suggest adding provisions to the draft law on the budgeting process, which pay due regard to the requirements mentioned above.

c. The status of the "authorized agency"

Article 6. of the draft law authorizes the President to set up, reorganize and abolish courts as well as to determine the total number of judges at the district courts, whereas article 10 treats the same issue in relation of oblast courts. In both articles, mention is made of the so-called authorized agency, which seems to have significant competence in administrative, technical and financial matters. Article 56. states that the "authorized agency" should be created by the President of the Republic. However, the status, position of the agency is not completely clear. Is the agency to be subordinated to the President, is it to act like the competent departments in the ministries of justice in other countries, which collect the needs of courts, allocate the resources among individual courts, etc? Article 56. proclaims that the authorized agency should not interfere with the judges' independence indicating that the drafters themselves realize that the activity of the agency may pose threat to judicial independence.

For this reason it is desirable to have clear rules on the relation between the agency and the other officials and bodies involved in the administration of courts in addition to those already provided for in the draft law.

d. The structure of courts

As concerns the provisions on the structure and composition of courts the function of the so-called "supervisory collegium" is not completely clear (the Russian text has not helped me either), therefore a more detailed description is recommended. Whereas the law gives a detailed description of the competencies of the courts' chairpersons and of the plenary session, I could not find adequate provisions as concerns the tasks and competence of the "collegiums". Should it mean that they have no competence at all?

Further question and suggestions concerns the powers of the court's presidents. First, it is not clear what the orders issued by the court presidents may contain. I assume that it is administrative matters that may be dealt with by instructions and if this is the case, this should be made clear in the text.

I have certain concerns as regards the competence of the court presidents to "personally receive individuals".

I can accept that it is the chairperson of the court who is in charge of communicating with the community and to represent the court. However, it should be made clear that the citizens' visits and the chairperson's meeting with the citizens should in no way interfere with the independence of individual judges. Therefore if the mentioned provision is maintained I would suggest to make the purpose of the meetings with individuals clear.

With a view to the right of having one's case tried within a reasonable time guaranteed under article 14. par. 3.c. of the ICCPR one could consider to authorize parties to the case to lodge complaints addressed to the court's chairperson in the case of undue delays and request that he/she takes appropriate measures. Provisions of this type are known in a number of countries. The right of the parties to complain of undue delays is recognized as an effective remedy and the chairperson's power to check if deadlines were observed and his/her power to take measures aimed at speeding up the case is not considered as infringement of the judges' independence.

Chairpersons of the courts have the duty to "organize the consideration of cases by the judges" which includes in my interpretation also the assignment of incoming cases to individual judges. In order to guarantee impartiality and the appearance of impartiality it is preferable to have some kind of automatic distribution of cases and not to leave assignment to the complete discretion of court presidents. This can be stronger, since I believe that in practice this is a very important issue! One can easily expect challenges to the impartiality under Art.14. An argument that could be used is: this would safeguard them against challenges of partiality in Court proceedings. You have to avoid even the perception of arbitrariness.

Actually the Basic Principles do not require any type of automatic case allocation, stating that " the assignment of cases to judges … is an internal matter of judicial administration." The Council of Europe Recommendation goes further by proposing that distribution of cases "be made by drawing of lots or a system for automatic distribution according to alphabetic order or some similar system." It should also be mentioned that a number of new democracies in Central and Eastern Europe have changed to automatic case distribution

e. The position of the Supreme Court and its Chairperson

As it is the case in many emerging democracies the President of the Supreme Court has relatively extensive powers in administrative and personnel matters in Kazakhstan as well. He/she is elected by the Senate, i.e. political considerations play a role in election. If a read the text correctly simple majority is sufficient for election. The president is elected for five years and simple majority is sufficient for election. It seems that re-election is not excluded. Since political considerations may play a role in the president's election and since the president might be interested in being re-elected we may not completely exclude that he/she might be influenced by representatives of the other branches of government. Under these conditions the president's extensive powers raise concerns and therefore I would suggest to provide for appropriate checks exercised by other judicial organs.

As to the status of the Supreme Court I would suggest to make it clear whether the "regulatory resolutions clarifying issues of application of legislation" adopted by the plenary session (article 22/1/3) are binding upon the courts or not.

2. The status of judges

a. Selection, suspensions, resignation, transfer

The section on the status of judges contains the generally recognized guarantees of fair adjudication and judicial independence. Article 23. par, 1. stipulates that judges in the country have a "uniform status". In the light of this provision I do not fully comprehend the need for distinct procedures for the selection of candidates for judicial posts in the district courts on the one hand and posts at oblast courts on the other. (article 30). The difference in procedure may suggest that district court judges are seen as lower status judges as compared to judges at the oblast court, whereas in my view the judicial branch should not be construed along the principles typical for bureaucratic organizations.

The selection procedure is in line with international standards as it prohibits any kind of discrimination (article 30. par. 1) and in that a competitive selection procedure is envisaged (article 30. par. 2.). As to the latter I would recommend to describe the way competitiveness is secured (are vacant posts announced, what are the criteria selection is based on, etc).

The selection procedure described in the draft law is also balanced, meaning that judges themselves, at the courts' plenary sessions may express their opinion on candidates. In order to avoid future clashes the law could make it clear whether the recommendations, proposals of the various bodies are binding upon the addressees or would specify the procedure to be followed if the addressee of the proposal disagrees with the proposal.

Article 33. provides for the suspension of the power of a judge and lists among the cases of suspension the judge's "transfer to another job." It is not clear from the draft law under what condition judges may be transferred.

Therefore, I recommend to specify whether judges may be transferred without their consent, further whether they can be transferred to the Ministry of Justice, as it is the case in a number of countries and I would also propose to clarify their status after suspension (do they retain their title, in case they are transferred to the Ministry are they compensated as judges or civil servants, etc.). It is somewhat confusing that in article 34. par.7 transfer is figuring as ground for discharge.

I appreciate the provision on the judges' resignation, which provides that judges retain certain privileges even after resignation. If I understand it correctly judges even after their retirement are entitled to housing privileges which I find an appropriate guarantee of independence. I do not find in the draft law a specific retirement age for judges, therefore I assume that the general rule applies to judges as well. The question still remains if judges after completing the retirement age can further work as judges. If this is the case the law should specify the body or authority which may grant extension of the judge's mandate.

b. Rule on incompatibility

In relation to the judges' status I refer to article 79. par. 4 of the Constitution which stipulates that the judicial office is incompatible with other paid offices, except for teaching, research or other creative activity. However, there might be teaching activities which may jeopardize the independence and the impartiality of judges. That is why some laws on the status of judges permit even teaching activity under the condition that this does not impair the judge's independence and impartiality. The adoption of a provision of similar contents could be considered.

c. Prohibition of political activities

As in almost all post-communist countries judges in Kazakhstan may not be members of political parties, which, taking the diverse solutions adopted in the different countries and with a view to the article 22 of the ICCPR which permits restrictions upon the freedom of association does not raise concerns. The ban on membership in trade unions is also known in some new democracies of Central and Eastern Europe. The prohibition in draft law to "come out in support or opposition of any political party" (article 28/2) is less restrictive than the formulation adopted in some other transitional democracy according to which judges are prohibited from being engaged in any type of political activity. Also under the ICCPR freedom of expression can be restricted if provided by law, further if the restriction serves one of the purposes listed in the Covenant and if necessary. As to the purpose one could argue that it is public order that requires the restriction, although it should be noted that the notion is dangerous from the point of view of human rights.

Therefore it is for the practice to care for the proper interpretation of the provision and to prevent unjustified interference with the freedom of expression. This is particular important with regard to the fundamental value of freedom of expression in a democratic society.

d. The Supreme Judicial Council

As concerns the Supreme Judicial Council I see no problem in that the Council has also members from outside the judiciary. However in the new law envisaged in article 36. par. 2, the number of the members have to be determined; the law should also provide for a sufficiently high number of judge members as well as for the fair representation of judges at the different levels of the judicial system as required by the Judges' Charters. The same applies to the composition of the Qualification Collegium of Justice.

3. Disciplinary procedure

The draft law defines conduct that may result in disciplinary procedure in relatively broad terms. This itself is not a problem, however, lower level regulations or a kind of code of conduct should define conduct qualifying as a disciplinary offenses more precisely in order to prevent abusive interpretation of article 39.

I find it extremely unfortunate to mix ordinary appeal procedure with institutions of inspection. It is self evident that reversal or amendment of a court decision may not entail liability and it is not for the appeal court to make an assessment on the degree of the error made by the judge. Therefore I strongly recommend the deletion of article 39 par. 3. If in the course of the evaluation of the judge's performance those in charge of carrying out the evaluation find that the judge repeatedly makes grave mistakes, they should, of course, take the necessary steps.

As concerns disciplinary procedure, I suggest to add provisions providing for the minimum safeguards of fairness. The Basic Principles state that "all disciplinary… proceedings should be determined in accordance with established standards of judicial conduct". Further, they proclaim that the judge has to have the right to a fair hearing. In a number of countries the law on the status of judges when determining the procedure to be followed in disciplinary cases refers back to the provisions of the law on criminal procedure.

I understand that in certain cases it is the Republican Disciplinary and Qualification Collegium, which acts as the first instance disciplinary agency. (Article 43 par. 1). Article 46 par. 2 at the same time proclaims that there is no appeal from decisions of the Republican Collegium. In the light of the Basic Principle's provision, according to which decisions in disciplinary matters should be subject to an independent review (article 20) the exclusion of appeal raises concerns. The Basic Principles permit the exclusion of review if the decision is passed by the country's highest court but this provision may not be interpreted as applying for the e Republican Collegium.

IV. Issues not covered by the draft law

a. Promotion

Guarantees of the proper functioning of the judiciary as well as of the individual judges' independence in countries of the civil law tradition are the precise definition of criteria for promotion. This again presupposes the regular assessment of judges' performance based on clear and objective criteria. It is perhaps not for the constitutional law to define the details of evaluation but the frame for the detailed rules should be laid down in the draft law.

b. Training

Regular training of judges is also essential. Knowledgeable and competent judges are well equipped to resist undue interference with their activity. This again is an area which, of course not in details, but should be dealt with by the law. When formulating the relevant provisions regard should be paid to the requirement laid down in international documents according to which the judiciary should have influence on the system of training and should play a role in designing training courses.