The courts and judicial community management

Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

Author: Kozhuganova Dinara, Kazakh-American Free University, Kazakhstan

In the Republic of Kazakhstan the current democratic processes in the society, at a modern stage of constitutional development, caused the necessity of further development in the effectiveness of the justice system.

Judicial power is one of the main components of the mechanism of a modern democratic and legal state. The basic principle is the division of power between legislative, executive, and judicial branches. All three branches function independently.

The effectiveness of judicial power and the realization of its human rights function depend on the specific, economic, political, and legal conditions, under which it functions [1].

The problems of judicial community management are topical issues at the modern stage of the judicial system development and functioning in the Republic of Kazakhstan. The central body in the process of management is the public association “The Union of Judges of the Republic of Kazakhstan”. It is a non-government, self-financing, and non-commercial organization formed at the First Congress of the Judges in 1996 on the initiative of the group of judges. It works for the purposes of realization and protection of the judicial community’s interests. The union works according to the following principles of voluntariness, equality of the members, democracy, self-government, legality, accountability, and publicity. Today more than 95 per cent of judges in Kazakhstan are the members of this public organization. According to the regulations of the public organization the membership is on a voluntary basis. The members of the Union may be active judges, retired judges, or pensioned-off judges [2].

The goals and objectives of the Union are the following: determine the judicial community position in the solution of important legal problems; consider actual problems of courts’ work and judges’ status; strengthen the authority of the judicial power; ensure compliance with the Judicial Ethic Code; hold and participate in scientific-practical conferences of judges; further the strengthening of court’s independence and judicial authority; ensure social security and the judicial self-government development; take part in the discussion of the problems of the judicial practice and legislation improvement; participate in the judges’ arrangements of the professional level improvement; evaluate independently the projects of laws and other normative acts; develop international relations with the judicial communities of other countries.

The public association works in the whole territory of Kazakhstan. It structure is composed from different branches formed according to the territorial and corporative principles. The branches work in accordance with the regulations approved by the Central Council of the Union of Judges.

There are Commissions on Judicial Ethics created on the premises of the Union of Judges’ branches. They operate according to the regulations and the Judicial Ethics Code.

The supreme organ of the Union of Judges is the Congress of Judges called not less than once per four years. The Congress elects the Chairperson of the Union of Judges who at the same time is the Chairperson of the executive organ - the Central Council of the Union of Judges.

The source of financing is initiation and annual membership fee. Money means could also be formed from voluntary contributions, proceeds from lectures, exhibitions, sport and other events, profits from production and other activities [3].

The Union of Judges actively participates in realization of the projects together with the following international organizations: USAID, OSCE, and German Society on Technical Cooperation (GTZ), UNDP, and others. The Union of Judges and International Foundation for Protection of Freedom of Speech “Adil Soz” take part in the project of ongoing forum “Judicial Power and Mass Media”. The most important is the project of the European Union “Judicial and Legal Reforms Support in the Republic of Kazakhstan” (since February 15, 2010).

The Union of Judges of Kazakhstan has been the member of the International Association of Judges since November 2004 according to the Resolution of the 47th Annual Meeting of IAJ (Valle de Bravo, Mexico).

The Union of Judges of Kazakhstan together with the Supreme Court carries out a significant work for the judges’ professional development, takes part in the educational processes, annually announces “The Best Judge of the Year” competitions, and holds international legal conferences and trainings.

The Union of Judges of Kazakhstan carries out its activity on the basis of the central council work regulations approved by #2-1 Resolution of the Central Council of the RPA “The Union of Judges of the Republic of Kazakhstan” dated February 5, 2010.

It also should be mentioned that as an organ of the judicial community the Judicial Ethic Commission is of a great importance. The Commission works on the basis of the Regulations approved by # 7 Resolution of the Central Council of the Union of Judges of the Republic of Kazakhstan dated February 5, 2010. The goal of the Commission is the concern for the judicial community purity. The subject of the Commission activity is the observance of moral and ethic norms and rules of behavior stipulated by the Judicial Ethic Code. The commissions are formed and function under the Union branches. The issues of observation of the judicial ethic norms by the Chairperson and the chairpersons of boards of oblast courts are considered by the Commission of the Supreme Court Judges’ Union Branch.

The commission is formed by the corresponding branch of the Union at the conference. The conference elects the Commission for the term of two years by means of secret vote from the members of the Union registered at the corresponding branch of the public association. Any member of the Union may be elected to the Commission. The quantity of the Commission is determined by the conference. The Chairperson and the chairpersons of the boards of the Supreme Court of the Republic of Kazakhstan, the chairperson of the boards of oblast courts, the members of the Supreme Judicial Council and Judicial Panel, the members of the disciplinary and qualification boards cannot be elected to the commission. Commissions may consider the materials, requests, complaints about the Judicial Ethic Code violation by the judges of the branch, on its own initiative and on the statements and complaints of citizens, officials, and organizations. The Chairperson of the Supreme Court, the chairpersons of oblast courts, the heads of the Supreme Judicial Council of the Republic of Kazakhstan and the heads of the Judicial Panel, the chairpersons of the disciplinary and qualification boards may apply to the Commission with the request to conclude if one or another action of a judge or his/her personal behavior is the violation of the Judicial Ethic Code. The reason for the consideration of the case of judicial ethic violation may be the information in mass media, the reports of public prosecutors, and other official documents, requests and complaints of citizens [4].

Within the context of the discussed topic, the problems of judges’ image improvement and justice administration effectiveness seem to be of great importance. That is why it is necessary to consider some aspects of the judges’ image improvement program approved by the plenary meeting of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003. The given program aims at the realization of the Concept of Legal Policy and determines the priorities directed at the formation of positive public opinion about court work and at further development of their openness and accessibility for citizens and mass media. The program reflects main informational, organizational, cadre and legal arrangements aimed at the strengthening of the images of judges and courts in the republic.

In the country there created a judicial system able to ensure the effective protection of rights, freedoms and legal interests of the citizens and organizations. One of the results of the ongoing legal reform is the consolidation of judicial power within the system of state mechanism and real independence of courts from executive organs.

At the same time, in the society there is no objective and full information about the ongoing judicial reform, its results and problems, the work for the judicial ethic norms violation eradication, and the fight against corruption. There are still some problems with real executions of judgments and some cases when lawful decisions of the court are criticized in public. The real equality of the parties and adversary nature of the judicial process are not ensured in full. Thereupon, it becomes evident that the judicial system’s image increase is impossible without the improvement of quality and work of the courts. The population is in need of good legal aid especially in remote rural areas. The issues of courts’ peopleware are not solved. The professional level of judicial candidates is still low. The following problems – non-compliance with the constitutional requirements to provide housing for judges, insufficient material and technical levels of judicial session halls and transportation – are still taking place nowadays. There are no constant relations with mass media, i.e. full and timely information about positive results of courts’ activities and the important role of justice. For the purposes of objective media coverage of the judicial system’s activities it is necessary to develop mass media and print media in the country.

One of the important levels of legal policy and the mechanism of its realization is the training of personnel for judicial corps, increasing of educational and professional levels of judges, and the probation of candidates for judges at courts. Taking into account the significance of justice the issue of additional financing for judges’ internship with their work being discontinued is of great importance now. Nowadays there are specialized educational institutions under the state organs. Their goal is professional development of the judicial staff and professional training of young specialists. One of the important events is the foundation of a special educational institution under the Supreme Court – the Institute of Professional Development of Judges and the Workers of the Judicial System. The strategy of the judicial education includes continuing education of judges, tutorship, mentorship, distant education, and others. As it is already known, the goal of the judicial mentorship is to develop the judicial culture, independence and ethic behavior of judges.

Therefore the development of the judicial mentorship in Kazakhstan is one of the priorities of the Union of Judges. The Central Council of the Union takes the decision to recommend its branches to promote the mentorship development in local courts, to monitor the mentorship program effectiveness within the framework of the realization of the judicial education strategy, and to make suggestions on its further development.

When studying the given topic it is necessary to emphasize that the judicial power in the Republic of Kazakhstan personifies the supremacy of law, strengthens and reveals its rich potential. Any judge applying law practically faces a lot of organizational and technical problems. Nowadays one of the main problems of the quality of justice administration is the discrepancy between the number of cases and the number of judges. As a result of it, judges have enormous working load. It is necessary to emphasize the idea of the judge-assistants institute.

In the twenty-first century the judicial system is undergoing great changes. Now it is necessary to increase the number of judges and court staff. As a result of it, the quality of work will be improved in spite of the increasing volume of it. It also should be mentioned that there is an acute shortage of the position “judge assistant”. A judge assistant could do a great part of simple work such as preparation of the projects of judicial acts (decisions and resolutions). A judge could concentrate on the preparation of complicated cases to trial and their decisions. He or she would have more time for the detailed examination of the current normative-legal acts. At the same time we are quite sure that judge assistants are to work in district courts.

High demands to the candidates for the position of a judge assistant allow to form highly-qualified personnel helping judges in considering cases and preparing projects of procedural documents. The given position allowed to decrease the workload of judges and to form cadre reserves as the world precedents show that judge assistants were the source of judicial personnel [5, p. 12].

Analyzing the historical aspects of introducing the position of a judge assistant it should be mentioned that the institute of judge assistants was formed in the USA more than a hundred years ago. The judge of the US Supreme Court Horace Gray, appointed in 1881, introduced the practice to employ the graduates of the Law Department of the Harvard University with honor degrees for the position “Personal Secretary”. In 1885 the Attorney-General of the USA in his report suggested the Congress to codify a right of the US Supreme Court judges to use “the services of personal secretaries”. In 1886 the Congress approved the position of a judge-assistant. It is necessary to point out that the US judges have a free hand in determining the functions of their assistants as they are guided by a common goal – to make their work efficient as much as possible. Both judges and judge-assistants value this flexible approach.

The similar institute exists in Japan. A judge assistant is to prepare the theoretical and practical materials for the case.

The Supreme Court of the Republic of Kazakhstan is now looking into the issue of the judge-assistant institute functioning. It is necessary to mention that scientists and law-practitioners are not of the same opinion on the issue. S. Sabikenov considers the institute of judge-assistants to fit in with the executive organs but not with the judicial ones.

Taking into account the nature and content of the justice it is thought that courts are in need of not assistants but advisers who work for the judicial organs and are not the maintenance personnel. In the opinion of S. Sabikenov, it is the best way of training the candidates for the judicial work as a judge-adviser preparing the materials for the court examination together with a judge at the same time is mastering the practical skills of the judicial work [6, p. 7].

In connection with the introduction of the institute of judge-assistants in Kazakhstan it is necessary to differentiate the responsibilities between a judge-assistant and a procedural figure “court reporter”.

Judge-assistants are to be considered as the judicial candidates, the reserve for the judicial corps especially when they have worked in the position more than three years.

On the other hand, taking into account the fact that judge-assistants are considered the reserve for the judicial corps it is very important where a judge-assistant has worked before court.

To form the corps of judge-assistants it is more effective to involve young and talented graduates and recommend the best workers for judicial positions. The right to work as a judge is to be deserved by high professional level, psychological stability, and irreproachable behavior at the discharge of the duties [7].

It is recommended to introduce special training programs for judge-assistants up to the standards of master school including the system of periodic tests. In this way the state mechanism of training the judicial candidates will be realized.

Thereby, the institute of judge-assistants will ensure the effective implementation of the court’s functions, will exclude the red tape at the consideration of legal cases, and will favor the optimal formation of the judicial corps. The institute of judge-assistants will release judges from the functions irrelevant to justice. All these will increase the quality of justice.

The efficiency of the judicial work is also determined by a competent organization of the judicial system structure. The reform of the structure of the judicial bodies is necessary to be mentioned in this connection. Before November 3, 2010 these functions were carried out by the court administrator.

It is known that one of the main instruments of ensuring the organizational activity of a state organ is the correct strategy under the conditions of dynamically developing processes, timely and correct decision-making.

Meanwhile, the lack of the organ ensuring concerted actions of the departments of the Court Administrator, local courts, and territorial districts of bailiffs and exercising control over the implementation of main documents led to the decrease of the organizational activity of the Court Administrator of the oblast.

According to #1093 Regulations on the Department for ensuring courts’ activities under the Supreme Court of the Republic of Kazakhstan (the apparat of the Supreme Court of the Republic of Kazakhstan) dated November 3, 2010 the Department for ensuring courts’ activities under the Supreme Court of the Republic of Kazakhstan (the apparat of the Supreme Court of the Republic of Kazakhstan) is the authorized body on the organizational and logistical support of the activities of the Supreme Court of the Republic of Kazakhstan and local courts with territorial subdivisions (registries) in the oblasts, the capital and major cities.

Under the organizational and logistical support of the courts’ activities the above-mentioned Regulations means organizational and logistical measures aimed at the formation of the conditions for justice administration. The Department works in accordance with the Constitution of the Republic of Kazakhstan, the Constitutional Law of the Republic of Kazakhstan “About Judicial System and Judges’ Status in the Republic of Kazakhstan”, the laws of the Republic of Kazakhstan, the decrees of the President and the Government of the Republic of Kazakhstan, other regulatory legal acts, the given Regulations, and the orders of the Chairperson of the Supreme Court of the Republic of Kazakhstan. The Department and the registries form a common system of the bodies for ensuring the activities of the Supreme Court of the Republic of Kazakhstan and local courts. The Department and the registries are legal entities having their own seals with their names and bank accounts in accordance with the legislation of the Republic of Kazakhstan. The Department and the registries start civil law relations for their own.

The main objectives of the Department are the organizational and logistical support of the activities of the Supreme Court of the Republic of Kazakhstan and local courts. The Department within the framework of its authorities carries out the following functions:

1) organizational and logistical support of the courts;

2) organizational support of the courts’ activities on justice administration;

3) taking measures in accordance with the legislation for financial and logistical support of the Qualification Committee under the Supreme Court of the Republic of Kazakhstan;

4) organizational and methodological guidance of bailiffs’ activities;

5) preparation of the information for the Administration of the President of the Republic of Kazakhstan about judicial statistics, the state of justice administration, organizational and logistical support of the Supreme Court and equivalent courts’ activities;

6) people ware ensuring in accordance with the legislation;

7) organizational support of the work of the Chairperson of the Supreme Court of the Republic of Kazakhstan, the Court Jury, The Republican Disciplinary and Qualification Collegium of Judges, and the bodies of the Supreme Court of the Republic of Kazakhstan;

8) ensuring of the execution of the decisions taken by the Chairperson of the Supreme Court of the Republic of Kazakhstan, by the plenary session of the Supreme Court of the Republic of Kazakhstan;

9) making suggestions to the Chairperson of the Supreme Court of the Republic of Kazakhstan on the formation, reorganization or abolition of local or other courts;

10) by agreement with the Chairperson of the Supreme Court of the Republic of Kazakhstan determining the number of judges for a local and another court on the basis of the report of a Chairperson of a corresponding court within the limits of the staff list approved by the President of the Republic of Kazakhstan;

11) developing of the standards of working loads of judges and judicial workers;

12) organization of construction, repairs, and techniques of buildings and other objects of the judicial bodies;

13) control over the expenditures of registries and other lower organizations of the Department, audit of their financial and economic activity;

14) conducting of judicial statistics;

15) conducting of judges’ and judicial workers’ personal records;

16) in accordance with the legislation material and social provision of judges including retired judges;

17) participation in the development and expertise of the projects of regulatory legal acts within its jurisdiction;

18) informational and legal support of the judicial system, systematization and codification of the legislation;

19) organization of records management and archives’ work;

20) organizational support of the interaction of the Supreme Court of the Republic of Kazakhstan and other state bodies, the courts of other countries, international and other organizations, and other functions [8].

Thus, one of the main components of a legal state, the guarantee of its democratic development is the judicial power. The state of the judicial power influences greatly the attitude of the citizens to modern legal policy, to the level of society’s confidence in the government, i.e. the quality of justice administration – one of the main indices of country’s legal development. The given idea was emphasized in legal literature more than once, “Independent judicial power becomes the core of the legal state and constitutionalism, the main guarantee of the people’s freedom”. That is why it is necessary to improve legal institutes influencing the process of justice administration.

BIBLIOGRAPHY

1. Мами К. А. Конституционная законность и судебная власть в Республике Казахстан: основные тенденции и приоритеты. М.: [б. и.], 2004.-С. 128. // www.dissercat.com

2. Борисов В.М. История создания союза судей. // www.supcourt.kz

3. Устав Республиканского общественного объединения "Союз судей Республики Казахстан" от 19 декабря 1996 года. // Информационная система «Параграф».

4. О комиссии по судейской этике от 5 февраля 2010 г. № 7: Положение. // Информационная система «Параграф».

5. Омарбекова М. Актуальные вопросы введения института помощников судей в Республике Казахстан. // Зангер. 2010. - № 10. С. 12-13.

6. Сабикенов С. Введение института советников судей как важнейший фактор эффективного осуществления правосудия. // Зангер. 2010. - № 10. С. 6-8.

7. Ахпанов А. О процессуально – правовом статусе помощников судей в Республике Казахстан. // www.supcourt.kz

8. О департаменте по обеспечению деятельности судов при Верховном Суде Республики Казахстан (аппарате Верховного Суда Республики Казахстан) от 3 ноября 2010 года № 1093: Положение. // Информационная система «Параграф».



Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

  
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