Право/8. Конституционное право

М.ю. Корытникова Н.А.

Костанайский государственный университет им. А. Байтурсынова, Казахстан

Court and justice in the Republic of Kazakhstan

(brief overview)

Kazakh courts date back to ancient times when folklore and traditions and religious rules performed the function of the laws in the Kazakh steppe. On a vast area stretching from the Black Sea to the Altai mountains one after another rose and fell the ancient states of Sakhs, Gunns, Yusuns, Turks, Karluks which had their own laws the evidence of which can be found in a variety of sources on the State and the law. This has been convincingly proved by L. Gumilev, a wonderful scientist and a great connoisseur of Eurasian issues, in his scientific paper on ancient Turks.

One of the founders of the law codes in the Kazakh khanate was the outstanding diplomat and statesman, Maiki bi, the adviser of Chingiskhan. The consolidation of the state is also associated with the name of Kasym khan, the son of Az Zhanibek khan. Under his rule the legal norms and traditions of that time were consolidated into a book called «The Truth of Kasym khan». A noticeable contribution to the development of the legal system of the Kazakh society was also made by Esim khan who considerably toughened the military laws and raised the level of responsibility of Kazakh warriors which was necessary for defence from the attacks of the aggressive Joungars. At the end of XVII Az Tauke, Tole bi, Kazbek bi, Aiteke bi created the «Zheti Zhargi», which became the code of laws and of court proceedings. However, as this code has reached us only in verbal form, the society did not regard it as official legislation. However, having been polished by many generations of users in line with the Kazakh traditions, those laws played an important role and did a lot of good to the Kazakh people.

The last quarter of the 17th century became an important historical turning point in the establishment of the official court system in Kazakhstan. At that time Kazakhs became Russian subjects and practically lost their right to self-determination: Bi's courts co-existed with Russian laws. On the 23rd of December 1786 Ekaterina II issued a decree on establishing a border court in Kyrgyz (Kazakh) steppe pursuant to the proposal of Igelstrom, the governor-general of Orenburg. The heads of communities were appointed chairmen of the local Kazakh courts. Mullahs served as court secretaries. Six Kazakh foremen formed the body of counsellors. Two Tartars and two Russians served as controllers. This is how the official judiciary system was introduced into the life of the Kazakh people.

In 1918 – 1920 at the height of the civil war some areas of Kazakhstan were held by the White Guard who cancelled the revolutionary tribunals. In order to restore the tribunals, on 12 April 1919 the Kazakh military-revolutionary committee issued the Regulations of the revolutionary tribunals, and on 31 December 1922 a decree was signed on the formation of the Union of Soviet Socialist Republics. This brought about a drastic change in the structure of the court system. At the beginning of 1923 the All-Union Central Executive Committee issued the decrees on the establishment of the supreme courts in the republics. Pursuant to that decree, on 10 April 1923, the RSFSR Supreme Court issued decree No. 31, in which paragraph 8 provided as follows: «… it is decreed to establish the administration of Turkestan branch to supervise a staff of 57 persons of the Turkestan branch of the Supreme Court established pursuant to the resolution of the Presidium of the Supreme Court of 17 March of this year.» On 11 April of the same year the All-Union Central Executive Committee issued a resolution on the establishment of the Supreme court of the Kyrgyz (Kazakh) region of the RSFSR [1].

During the 1990s, Kazakhstan’s judicial system was extremely weak and ineffective. Courts, particularly at the local level, were not given sufficient resources by the state, and judges were poorly trained and underpaid. This resulted in many bad court decisions (particularly on complex commercial matters) and allegations of corruption.

The Government began a serious program of judicial reform in 2000 which is beginning to result in improvements to the country’s judicial system, including the formation of a Judicial Administration Committee under the Supreme Court, the establishment of judicial ethics commissions, increases in judicial salaries, the raising of minimum qualifications for judges, and the formation of specialized courts. While many problems continue to exist, top officials in the Presidential Administration, the Supreme Court, and the Ministry of Justice appear dedicated to continuing the program of judicial reform during 2009, and, in particular, to increasing the independence of the courts, improving the qualifications of judges, and providing greater resources to local courts [2, p.91].

The basic provisions regulating the structure and activities of the judiciary are stated briefly in the Constitution of the Republic of Kazakhstan (CRK) and more extensively in the Law On Judicial System and the Status of Judges in the Republic of Kazakhstan (CLJS).

The judicial system is the set of the courts constructed according to their competence and tasks, which are predetermined by the purposes of their activity.

The Constitution of 1995 introduced a unified system of courts of general jurisdiction based on territorial principle and established the following guiding rules of effectuating justice (Principles of justice:):

(1) justice in Kazakhstan is exercised only by the courts (the functions of courts may not be delegated to or appropriated by any other bodies or officials);

(2) judicial power is administered on behalf of RK and is intended to protect the rights, freedoms and interests of its citizens and organizations as well as to ensure the observance of the Constitution, laws, other regulatory legal acts and international treaties of RK;

(3) the jurisdiction of the courts extends to all cases and disputes arising from the interpretation of the Constitution, laws, other regulatory legal acts and international treaties of RK;

(4) decisions, sentences and other judgments of the courts have an obligatory force on the entire territory of RK;

(5) criminal procedure is carried out with the participation of jurymen; and

(6) the establishment of special or extraordinary courts under any name is not allowed (Art. 75, 76 CRK).

(7) a judge when executing justice is  independent and subordinate only to the Constitution and the law.

(8) possibility of revision of judgments of courts, both on criminal, and on civil cases [3].

According to the legislation of RK, the judicial system of Kazakhstan consists of the:

- Supreme Court of the Republic of Kazakhstan

- the local courts

- other courts

The Supreme Court is the highest judicial body for civil, criminal and othri cases in Kazakhstan. Its major functions include title following: (1) supervision over the activities of local courts; (2) cassation review of awards of local courts according to its jurisdiction; (3) repeated cassation of all other matters consid ered by local courts under the cassation procedure; (4) interpretation of issue. of judicial practice; (5) analyzing and generalizing court practice; (6) adoption of regulatory resolutions for the clarification of court practice (Article I / II CLJS).

The local courts exist at two levels.

1 The lower level is represented by district and equated (town, inter-district) courts which are the courts of first instance.

2 The upper level is constituted by regional and equated (city courts of Astana and Almaty) courts which serve as courts of appeal and cassation (Art. 2 Constitutional Law on the Judicial System and the Status of Judges (CLJS)) The regional courts also keep and analyze judicial statistics, generalize court practice and provide methodological assistance to district courts as to the application of legislation (Art.12 CLJS) [4].

Upon the request of the President, specialized courts may also be created both at the district and the regional levels (Art. 3,3-1 CLJS). At the present moment in our country there are several specialized courts, such as:

- Martial courts,

- Financial courts,

- Economic courts,

- Administrative courts,

- Juvenile courts.

While characterizing judicial system of the Republic of Kazakhstan, besides judicial levels, we use the term “judiciary instance”. There are three types of judicial instance:

1 The courts of first instance (trial courts),

2 The appeal instance (appellate court). If a party is dissatisfied with the decision of the trial court, it may appeal it with the appellate court within 15 calendar days from the date of receiving the trial court decision.

3 The cassation panel (kassatsionnaya instantsiya) (cassation court). If a party is dissatisfied with the resolution of the appellate court, it may appeal it further to the cassation panel (kassatsionnaya instantsiya) within 15 calendar days from the date of receiving the appellate court's resolution [5].

As the Republic of Kazakhstan is the member of the world community, it’s necessary to characterize the Kazakhstan court’s duty to enforce a foreign court judgment. Kazakhstan courts will enforce a foreign court judgment only if there is a treaty to that effect between Kazakhstan and the relevant foreign country. While Kazakhstan has entered into several bilateral and multilateral treaties to facilitate the enforcement of foreign court judgments, none of those treaties are with Western European or North American countries. Except for a treaty with other CIS countries, Kazakhstan is not a party to any multilateral treaties on the enforcement of foreign court judgments. Thus, Kazakhstan courts will refuse to enforce the judgments of most foreign courts.

Literature:

1. http://supcourt.kz/eng/history

2. Baker & McKenzie Doing Business in Kazakhstan , Almaty, 2012 - P. 91

3. Constitution of the Republic of Kazakhstan30.08.1995 г. // http://аkordа.kz

4. The Constitutional Law On Judicial System and the Status of Judges in the Republic of Kazakhstan, dated 25 December 2000.// http://Supсourt.kz

5. Zhenis Kembayev Introduction to Kazakhstan law, Kluwer Law International BV. The Netherlands 2012