JUSTICE SYSTEM IN KAZAKHSTAN
Kazakhstan's police, court, and prison systems are based, largely unchanged, on Soviet-era practices, as is the bulk of the republic's criminal code. Major legislative changes have concentrated on commercial law, with a view to improving the atmosphere for foreign investment. [Source: Library of Congress, March 1996 *]
Legal system: civil law system influenced by Roman-Germanic law and by the theory and practice of the Russian Federation, International law organization participation: has not submitted an International Court of Justice (ICJ) jurisdiction declaration; non-party state to the ICCt. (International Criminal Court). [Source: CIA World Factbook =]
The justice system in Kazakhstan is comprised of a system of general jurisdiction courts, headed by a Supreme Court, the highest court in the land. Subordinate courts include regional and local courts. Kazakhstan President Nursultan Nazarbayev controls the courts. Effort by businessmen to take companies controlled by the Nazarbayev family to court over business disputes have found that courts inevitably make their decisions in favor of the Nazarbayev family.
The judicial and legal system in Kazakhstan, whose independence is compromised by heavy control by the executive branch, functions at three levels: district, provincial, and federal. Judges at all levels are appointed by the president. Supreme Court and province-level appointments are made through the Supreme Judicial Council, which in turn is composed of ex officio presidential appointees. District-level judges are appointed from lists provided by the Ministry of Justice. Most criminal cases are heard at the district level; provincial courts try cases involving a possible death penalty and serve as appeals courts for decisions at the district level. Provincial court decisions can be appealed to the Supreme Court at the federal level. In 2002 legislation, the prosecutor general, who is the chief legal representative of the state, received new quasi-judicial powers that eroded the already small independence of the judiciary. Although judges are well- paid at all levels, bribery is common. Trial by jury, for which the constitution provides, was to be introduced for the first time in 2007, for capital cases only. Trials are public, and defendants have the right to counsel; however, in 2005 only half of criminal trials involved defense lawyers. Higher-court reversals of verdicts because of improper procedure have been common. [Source: Library of Congress, December, 2006 **]
People have traditionally shown total respect for local khans, emirs or chiefs, who in turn have traditionally not shared power or limited it by law. Social control has traditionally been exerted through public opinion, especially that of local elders, known in many places as “white beards” (aksakal in Kyrgyz and oqsoqol in Uzbek).
The justice system is modeled after the Soviet justice system. There is no freedom in the justice in political and criminal trials the conviction rate is over 99 percent. Judges have been called "shamefully compliant." One judge dismissed claims of torture victim because "they couldn’t name their torturers."
Judicial Branch in Kazakhstan
The highest court in Kazakhstan is the 44-member Supreme Court, whose members are nominated by the president and approved by the Senate. The Supreme Court is the appeals court for decisions taken at lower (district and province) court levels. Although nominally Supreme Court judges are appointed for life, in fact they retire at the mandatory federal retirement age of 65. Under the 1995 constitution, the Constitutional Court that had been established in 1991 was replaced by the Constitutional Council. The council rules on all constitutional matters, but its decisions are subject to a presidential right of veto. The council is composed of seven members: three appointed by the president and four appointed by the legislature. Citizens have no right of appeal on council decisions. [Source: Library of Congress, December, 2006 **]
Judicial branch of Kazakhstan: highest courts): Supreme Court of the Republic (consists of 44 members); Constitutional Council (consists of 7 members). Judge selection and term of office: Supreme Court judges proposed by the president of the republic on recommendation of the Supreme Judicial Council, and confirmed by the Senate. Constitutional Council: the president of the republic, the Senate chairperson, the Majilis chairperson each appoints 1 member for a 3-year term and each appoints 1 member for a 6-year term. The chairperson of the Constitutional Council appointed by the president of the republic for a 6-year term. [Source: CIA World Factbook =]
The judicial system is the least developed of Kazakhstan's three branches of government. In the early 1990s, although Minister of Justice Nagashibay Shaykenov objected strenuously, the constitution retains the practice of presidential appointment of all judges in the republic. The 1993 constitution specified terms of service for judges, but the 1995 document makes no mention of length of service, suggesting that judges will serve at the president's pleasure. [Source: Library of Congress, March 1996 *]
Under the 1993 constitution, lines of judicial authority were poorly defined, in part because the republic had three "highest courts" — the Supreme Court, the State Arbitrage Court, and the Constitutional Court — which among them employed a total of sixty-six senior judges. Many of these senior judges, as well as numerous judges in lower courts, had been retained from the Soviet era, when the judicial branch was entirely under the control of the central government. The 1995 constitution makes no provision for the State Abritrage Court, which had heard economic disputes among enterprises and between enterprises and government agencies. Provisions for the new judiciary clearly subordinate all other courts to the Supreme Court, which also has a consultative role in appointing senior judges. *
Courts in Kazakhstan
The court system in Kazakhstan functions at three levels: local courts, which handle petty crimes such as pickpocketing and vandalism; province-level courts, which handle offenses such as murder, grand larceny, and organized crime; and the Supreme Court, to which decisions of the lower courts are appealed. Until mid-1995, the Constitutional Court ruled as final arbiter on the constitutionality of government laws and actions in cases of conflict. [Source: Library of Congress, March 1996 *]
The constitution provides guarantees of legal representation for persons accused of a crime, including free representation if necessary, but this right appears to be little recognized by authorities or realized by the public. Pretrial detention is permissible, and a suspect may be held for three days before being charged. After being charged, an accused individual may be held for up to a year before being brought to trial. There is no system of bail; accused individuals remain incarcerated until tried. *
Both the police and the National Security Committee have the right to violate guarantees of privacy (of the home, telephone, mail, and banks) with the sanction of the procurator general. The theoretical requirement for search warrants and judicial orders for wiretaps and other violations of privacy often is ignored in practice. When the 1995 constitution was approved, a United States official criticized its lack of protection of civil and human rights. Before the approval referendum, Nazarbayev had announced the dissolution of the Constitutional Court, which he replaced in October with a Constitutional Council whose decisions the president could veto. *
Economic and administrative court judges handle civil cases under a court structure that largely mirrors the criminal court structure. Although the law and constitution provide for judicial resolution of civil disputes, observers viewed civil courts as corrupt and unreliable. Litigants reported difficulty in having judgments enforced, particularly if they did not pay a percentage to the court administrator. [Source: “Country Reports on Human Rights Practices for 2014: Kazakhstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State]
Arrest Procedures and Treatment of Detainees in Kazakhstan
According to the U.S. Department of State: “Although the judiciary has the authority to deny or grant arrest warrants, judges authorized prosecutors’ warrant requests in the vast majority of cases. In 2012 the courts authorized 11,263 — representing 95 percent — of prosecutors’ requests for warrant arrests. Prosecutors continued to have the power to authorize investigative actions, such as search and seizure. [Source: “Country Reports on Human Rights Practices for 2014: Kazakhstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
Persons detained, arrested, or accused of committing a crime have the right to the assistance of a defense lawyer from the moment of detention, arrest, or accusation. The criminal procedure code in effect during the year did not require police to inform detainees that they have the right to an attorney, and police did not do so. The new Criminal Procedure Code, which goes into effect January 1, 2015, introduces an obligation for the police to inform the detainees about all their rights, including the right to an attorney. *\
Human rights observers alleged that law enforcement officials dissuaded detainees from seeing an attorney, gathered evidence through preliminary questioning before a detainee’s attorney arrived, and in some cases used corrupt defense attorneys to gather evidence. The law states that the government must provide an attorney for an indigent suspect or defendant when the suspect is a minor, has physical or mental disabilities, or faces serious criminal charges, but public defenders often lacked the necessary experience and training to assist defendants. Defendants are barred from freely choosing their defense counsel if the cases against them involve state secrets; the law allows only lawyers who have special clearance to work on such cases. *\
Pretrial Detention and Access to a Fair Trial in Kazakhstan
According to the U.S. Department of State: “ The law allows police to hold a detainee for 72 hours before bringing charges. Human rights observers criticized this period as too lengthy and said that authorities often used this phase of detention to torture, beat, and abuse inmates to extract confessions. A bail system exists but was not used widely, and many individuals remained in pretrial detention until their trial. [Source: “Country Reports on Human Rights Practices for 2014: Kazakhstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
The new criminal code introduces the concept of conditional release on bail. The bail system is designed for persons who commit a criminal offense for the first time or for a crime of minor or moderate severity not associated with causing death or grievous bodily harm of the victim, provided that the penalties for committing such a crime contain a fine as an alternative penalty. The law grants prisoners prompt access to family members, although prisoners were sometimes sent to facilities located far from their homes and relatives, thus restricting access for those who could not afford to travel. *\
The law does not provide for an independent judiciary. The executive branch sharply limited judicial independence. Procurators enjoyed a quasi-judicial role and had the authority to suspend court decisions. Military courts have jurisdiction over civilian criminal defendants in cases allegedly connected to military personnel. Military courts use the same criminal code as civilian courts. *\
Trial Procedures in Kazakhstan
According to the U.S. Department of State: “All defendants enjoy a presumption of innocence and are protected from self-incrimination under the law. Trials are public except in instances that could compromise state secrets or when necessary to protect the private life or personal family concerns of a citizen. Only defendants charged with capital crimes facing the death penalty or a life sentence are entitled to trial by jury. [Source: “Country Reports on Human Rights Practices for 2014: Kazakhstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
Courts conducted jury trials for aggravated murder cases. Observers noted that the juror selection process was inconsistent and that judges, who deliberated with the jurors, tended to dominate the process. The Supreme Court reported that during the year, there were 65 jury trials, compared with 198 in 2013. *\
Indigent defendants in criminal cases have the right to counsel and to a government-provided attorney. Under the criminal procedure code, a defendant must be represented by an attorney when the defendant is a minor, has mental or physical disabilities, does not speak the language of the court, or faces 10 or more years of imprisonment. Defense attorneys, however, reportedly participated in only one-half of criminal cases, in part because the government failed to pay them. The law also provides defendants the right to be present at their trials, to be heard in court, to confront witnesses against them, and to call witnesses for the defense. They have the right to appeal a decision to a higher court. According to observers, procurators dominated trials, and defense attorneys played a minor role. *\
Corruption and Problems with the Kazakhstan Justice System
According to the U.S. Department of State: “Domestic and international human rights organizations reported numerous problems in the judicial system, including lack of access to court proceedings, lack of access to government-held evidence, frequent procedural violations, poor explanation of rights to defendants, denial of defense counsel motions, and failure of judges to investigate allegations that authorities extracted confessions through torture or duress. Courts convicted 25,079 individuals and acquitted 458. [Source: “Country Reports on Human Rights Practices for 2014: Kazakhstan,” Bureau of Democracy, Human Rights and Labor, U.S. Department of State *]
Lack of due process was a problem, particularly in a handful of politically motivated trials involving protests by opposition activists and in cases in which there were allegations of improper political or financial influence. In August authorities denied Vladimir Kozlov relocation to a low-security prison due to four reprimands of which he was reportedly not aware. According to KIBHR Chairman Yevgeniy Zhovtis, it is illegal to reprimand a prisoner without notifying him. Zhovtis noted it was a common practice for the administration of a colony to use reprimands to deprive a person of his right to “easing the measure of imprisonment.” *\
Human rights and international legal observers noted investigative and prosecutorial practices that emphasized a confession of guilt over collection of other evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that officials had obtained confessions by torture or duress. *\
Corruption is evident at every stage of the judicial process. Although judges are among the most highly paid government employees, lawyers and human rights monitors alleged that judges, prosecutors, and other officials solicited bribes in exchange for favorable rulings in many criminal and civil cases. On July 24, Astana’s Almaty District Court sentenced former Astana judge Abdulla Kenzhayev, a former Astana Specialized Interregional Economic Court justice, to six years in prison after finding him guilty of taking a 750,000 tenge ($4,100) bribe for a favorable ruling between two businesses in a civil case.
Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, U.S. government, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.
Last updated April 2016