The rule of law and legality in Kazakhstan. How EUCJ project helps to improve it?
- I. Context. The rule of law and legality
Economic prosperity comes hand in hand with fair, effective and human criminal justice system. The government of Kazakhstan pays great attention to the issues of criminal law reform, as reflected in the national plan "100 concrete steps". Kazakhstan resolutely takes the path towards strengthening of the rule of law and humanization of the justice system. The EU-funded project “Enhancing criminal justice in Kazakhstan” aims to support one of the five institutional reforms, particularly, the second reform to ensure the rule of law within its steps 16-34. This initiative will increase the effectiveness of the recently introduced reforms, modernise the sentencing rules and enhance the qualifications and skills of the legal professions and those responsible for the implementation of the Government's criminal justice services and polices.
The essence of the second reform[1] is to ensure that an independent judiciary and the entire law enforcement system of Kazakhstan are aimed solely at protecting the rights and freedoms of citizens, the strict implementation of laws and the strengthening of the rule of law.
In terms of its legislative support, a new Civil Procedure Code and the new Law "On the High Council of the Judiciary" were adopted. Necessary changes to the Constitutional Law "On the Judicial System and Status of Judges", the Criminal Procedure Code and the Code of Administrative Offences were introduced. First, the updated legislation will enhance public confidence in the judicial system. It is a court where justice is administered. The central question of the reform of the Kazakhstan courts is the formation of quality of the judiciaries. The legislation provides a rigorous selection mechanism of candidate for judges and high qualification requirements for them. “Justice must and will be administered by the most deserving and the most qualified professionals with extensive life experience and high moral principles. The process of selection and appointment of judges will be transparent and open to the public”, states the President of Kazakhstan N. Nazarbayev. In this connection, the Supreme Judicial Council has been drastically reformed, which becomes an autonomous state institution with its unit, its composition and powers were expanded.
According to the President’s vision, the following measures have to be taken:
Firstly, judicial jury is radically reorganized at the Supreme Court. It will deal with complaints of citizens on the actions of judges and representatives on the violations of the Code of Ethics of the judiciary, which will be also adopted.
Second, a specialized board will be established at the Supreme Court for disputes, with involvement of the large-scale investors. It will be implemented under the right of foreign investors to quality and equitable resolution arising from these legal disputes.
Third, within the framework of criminal proceedings the balance between the prosecution and the defense in the courts, including the pre-trial stage should be provided. This will be achieved through further expansion of the powers of the investigating judge to authorize all investigative actions limiting constitutional rights and freedoms.
Fourthly, the chairs of the courts of Kazakhstan are the first among equals. So the possibilities of their influencing on the decisions of other judges will be excluded.
Fifth, the institution of private bailiffs with a gradual reduction of public bailiffs is further developed.
Measures to strengthen the independence of the judiciary are of particular importance. A new law has passed providing for all matters pension of judges, left on an honorable retirement. This will allow the judges to focus exclusively on the objective of justice. In addition, there is a need to ensure that all law enforcement agencies, notably the police, were in the service of the interests of people and the rule of law. For that a local police service, accountable to local authorities and local communities is created. Similar services have been successful in a number of countries - members of the OECD.
Competence of the local Police Service cover the issues of protecting public order, prevention of domestic crime, ensuring road safety and the "zero" tolerance for minor offenses. These changes are reflected in the new legislation. It also provides for a system of community councils and other advisory bodies to review citizens' complaints against the police officers who violate ethical standards, as well as their registered status and powers. Internet portal "Map of criminal offenses" will be also created. A similar mechanism has been used successfully in a number of countries around the world to register all criminal offenses in the country in this web resource promptly. This will allow the public to monitor the effectiveness of law enforcement.
Improvement of the prison system is the pressing issue. This work should be carried out within the framework of public-private partnership. The successful experience of foreign countries should serve as the basis of the implementation of measures to involve the private sector in the construction and operation of prisons. It is also important to provide support and assistance to individuals who previously violated the law and served the penalty for it. To do this, a comprehensive social rehabilitation will be developed and standards of special social services implemented for citizens who have served their sentence.
Step 33 of the national plan "100 concrete steps" is focused on building up an effective system of social rehabilitation of people released from prison. The government aims to develop a comprehensive strategy of social rehabilitation and create standard of special social services for these citizens.
In a short timing the EU-funded project “Enhancing criminal justice in Kazakhstan” has contributed to drafting two important laws. It is expected that the drafts of the Laws “On probation” and "On forensic activities in the Republic of Kazakhstan" will be submitted to the government of Kazakhstan until the end of this year.
In general, the assertion in Kazakhstan the rule of law is the constitutional issue, which is solved in a single modernization process. Implementation of designated measures and approaches will allow increasing confidence of the citizens in the national judicial and law enforcement systems as well as foreign investors, and generally improving the business climate in Kazakhstan.
The EU-funded project “Enhancing criminal justice in Kazakhstan” fits into the national policies with its goals and objectives. Is is expected to see its impact by the end of 2018. However, it will take longer to see some of the results of the project...
[1] Source: «Nation plan – Road to the Kazakhstan’s dream» on June 16, 2016 to update the status of the 2nd reform. http://www.inform.kz/rus/article/2918784